THE FOURTH PART OF THE REPORTS OF SEVERAL CASES OF LAW, Argued and Adjudged in the several COURTS at WESTMINSTER, In the Time of the late Queen ELIZABETH'S Reign. Collected by a Learned Professor of the Law, WILLIAM LEONARD Esq Then of the Honourable Society of GRAYES-INN: PUBLISHED BY WILLIAM HUGH'S of Grayes-Inn Esq With TABLES of the Names of the CASES, and of the Matters contained in the BOOK. LONDON, Printed by the Assigns of Richard and Edward Atkins Esquires; For Henry Herringman, Ben. Griffin, Charles Harper, and Samuel Keble. MDCLXXXVII. Cum Gratia & Privilegio Regiae Majestatis. THE NAMES OF THE Principal Cases Reported in this BOOK. A. ACton and Pitcher. Pag. 51 Anderson and Heywood. 30 Applethwaite and Nertley. 56 The Scholars of All Souls and Tamworth. 178 Archbishop of York's case. 168, 214 Arden and Goads. 243 Ashpoole and the Inhabitants of Weringham. 218 Lord Audley's case. 166, 210 B. Babingtons' case. 123 Baker's case. 122 Barkers case. 60 Barlow and Pearson. 102 Barnard and Trusser. 186 Barton and Edmund. 5 Bartace and Hind. 185 Baspoells case. 35 Baxter and Bartlet. 156 Bedfield and Rouse. 198 bedingfield's case. 89 Beechers case. 190 Bell and Langley. 230 Bettuans case. 22 Bills Case. 238 Bingham and Squire. 61 Bishop of Rochester's Case. 23 Bishop of London's Case. 80, 214 Bishop of Exeter and Sir Henry Wallop. 247 Blaby and Estwick. 15 Blithe and Colegate. 88 Bluets Case. 18 Bluet and Cook. 241 Box and Mounslowe. 230 Brookhouses Case. 3 Braziers Case. 104 Broome and St. John's Case. 96 Browne and Stulsbye. 43 Browne and Peter. 144 Browne and Tucker. 241 Buckhursts Case. 2 Bulwer and Smith. 52 Burgess and Foster. 215 Bussey and Milfield. 61 Butler and Lightfoot. 9 C. CAnnon and Osborn. 49 capels Case. 150 Chomley and Congees. 88 Christian and adam's. 54 Clemp and Clemp. 8 Clark and Kempton. 91 Clarks Case. 11 Sir Gervaise Clifton's Case. 199 Clinton and Bridges. 79 Cook and Sengate. 31 Cooks Case. 245 Collier and Collier. 194 Coney's Case. 37 Coney's Case. 20 Lord Cromwell and Townsend. 203 Crane and Parkins. 249 Cursons Case. 10 Curtis' Case. 51 Corpus Christi College Case. 223 D. LOrd Dacres and Fines. 97 Daubney and Gores. 194 Dean and Chapter of Christ-Church. 190 Doylies' Case. 101 Dolemans' Case. 86 Doughty and Prideaux. 101 Dowhall and Catesby. 113 Duke and Smith. 238 Duffams Case. 86 Duncombs Case. 293 Duchess of Suffolk's Case. 196 E. EArl of Derby's Case. 42 Earl of Northumberlands Case. 91 Earl of Huntingdon and the Lord Mountjoyes case. 147 Earl of Rutland and Spencer. 243 Earl of Arundel and Bradstock. 186 Edwards and Watton. 240 egerton's case 249 Englefields case. 135, 169 F. FItch and Peirce. 121 Foles and Griffin. 94 Frice and Foster. 14 Fuller's case. 4 Fuller's case. 208 G. Guardians of the Monastery of Otleries' case. 117 Germies case. 82 Germin and Ascott. 83 Gerrard's case. 7 Sir Henry Gilford's case. 156 Glascocks case. 238 Glover and Archer. 247 Godboults case. 33 Goram and Fowkes. 150 Goore and Winkfield. 208 Green's case. 85 Greindall and Archbishop of Yorks case. 182 Grey and Edwards. 110 Grenden and Albany's case. 133 Grubhams' case. 246 H. Haltens' case. 8, 184 Harris and Whiteing. 91 Harris and Coverley. 98 Harris' case. 112 Harvy and Harvy. 12 Harvy and Thomas. 15 Haselwoods' case. 114 Hawkins and Chapman. 9 Hern and Crow. 122 Hegger and Helston. 111 Hide and Hill. 110 Higham and Cook. 144 Hills case. 187 Hinds case. 21 Sir Baptist Hix and Fleetwood. 248 Holland and Hopkins, 8 Hobbies case. 5 Hore and Bridleworth. 15 Hoo and Hoo. 78 Sir William Hollis' Case. 119 Holinshed and King. 182 Houtiers case. 106 Hoven and Gerrard. ibid. Hodges' case. ibid. Hunt and Sim's. 13 Hunt and Gonnel. 24 Hungerford and Watts. 181 J. JAckson and Darcy. 40 Jerons' case. 149 Jonson's case. 193 Josselin and Josselin. 19 K. Keenes' case. 121 Sir Thomas Kemp and Windsor. 41 The King and Cotton. 7, 39 Kirkman and Reignot. 3 Knevit and Cope. 59 Knightly and Knightly. 102 L. Launtons' case. 1 Sir Richard Lee and Arnold. 27 Sir Francis Leake and Hollis. 24 Lees and Lord Stafford. 58 Sir Rich. Lewknors case. 162, 225 Limver and Ivery. 68 Long and Hemoning. 216 Luke's case. 32 M. MAnning and Andrews. 2 May's case. 7 Mansors case. 62 Megett and Davis. 60 Michael and Norden. 201 Milborne and the Inhabitants of Dunmore. 191 Morgen and Cox. 40 Morris' case. 92 The Lord Mountjoy and Barker. 73 Mounjoy and Andrews. 150, 194 N. NEals case. 96, 219 Newman and Sheriff. 25 Marquis of Northamtons' case. 17 O. OGnell and Underhill, 115 Onions Case, 36 Old and Coney, 7 Owen and Morgan, 26, 93, 222 P. LOrd Pagetts Case, 6 Par Marquis of Northamptons' Case, 17 Parry and Herbert, 5 Paston and Townsend. 97 pelham's Case, 33 Sir William Pelham, 114, 123 Peake and Pollert, 121 Peirs and Levesuch, 48 Penhalls Case, 49 Penson and Higbed, 99 Pophams Case, 4 Pouley and Siers, 208 Prowess Case, 47 Provost of Queen's College Case, 85 Precedent of Corpus Christi College Case, 223 Price and Atmore, 246 Q. QUeen and Earl of Shrewsbury, 19 Queen and Lord Vaux, 26 Queen and Painter, 32 Queen and Pain, 81 Queen and Bishop of Lincoln, 95 Queen and Sir John Savile, 104 Queen and Faine Archbishop of Canterbury, 107 Queen and Due, 197 Queen and Bishop of Norwich, 217 R. RAtcliff and Shirley, 121 Ratcliff and Chaplain, 242 Rawlins and Somerford, 116 robinson's Case, 55 Sir Henry Rolls and Osborne, 250 Ropers Case, 47 Rowson and Browne, 3 Ruithbrooke and Pusaine, 16 russel's Case, 24, 197 Russel and Prat, 44 S. SAer and Bland, 24 sanderson's Case, 12 Sapland and Ridler, 238 Savages Case, 88 Savage and Knight, 78 Lord St. John and Sir John Grace, 22 Scots Case, 51 Scott and Scott, 39, 70 Seamar and Browning, 122 Seixtbank and Pierces, 85 Shrewsbury and Inhabitants, etc. 18 Smith and Babb, 193 Spring and Lawson, 77 Starkeys Case, 61 Mark Steward's Case; 106 Lord Stafford and Sir Rowland Haywood, 55 Strangborough and Warner, 3 Strangdon and Burnett, 4, 106 Stroads Case, 40 Countess of Sussex and Wroth, 65 T. Tailor's Case, 31 Tailors Case, 22, 186, 209 Terrets Case, 51 Thetford and Thetford, 50 Townsend and Pastor, 52 Trecarham and Friendship, 64 Trivilians Case, 195 Tutor and Norton, 6 Tyrells Case, 92 V. VErney and Verney, 207 Vernon and Sir Tho. Savile, 191 W. Wait and Cooper, 207 Sir Walter waller's Case, 44 William waller's Case, 169 Walsgrave and Somerset, 167 Wards Case, 239 Wards Case, 241 Wath and King, 57 Webs Case, 110 Weshbournes Case, 49 Wheelers Case 240 Willet and Wilkinson, 7 Windham and Meede, 96 Wingate and Sands, 202 Wood and Chivers, 179 Wroth and Capell, 197 Y. YOung and Taylor, 94 THE FOURTH PART OF THE REPORTS OF SEVERAL Excellent Cases, Argued and Adjudged in the several COURTS of Law at WESTMINSTER. In the time of the Late Queen Elizabeth's Reign. Hil. 20 Eliz. I. Launtons Case. A. Is bound in an Obligation, Emblements. that B. shall enjoy a Lease of black Acre immediately after his death: The Land being sown, the Executors of A. take the Corn; it was holden, the Obligation was not forfeited, for that by the Laws the Corn did belong to the Executors. II. Pasc. 23 Eliz. A Man possessed of a Term devised the same to his Son when he came to the age of 18 years, Devise. and that his Wife should have it in the mean time, and made his Wife his Executrix, and died before the Son came to the age of 18 years the Wife took Husband: It was holden that she should have the Term as Executrix, till the Son came of the age of 18 years. III. Mich. 23 Eliz. A Man made a Feoffment in Fee sub Conditione, ea intention, that his Wife should have the Land for her life, the remainder to his younger Son in Fee: The Feoffee died without making such an Estate; the Heir of the Feoffor entered; it was resolved, that it was not a Condition, but an Estate, which was executed presently according to the intent. Trin. 8 Eliz. iv Manning and Andrews Case. Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar. Husband and Wife Donees in special tail, the Husband levied a Fine of the Lands. It was holden if the proclamations pass in his life time, or before the Wife by her entry had avoided the Fine, the Issue should be barred: otherwise, if the Husband had died before the proclamation had passed. 27 Eliz. In the Common Pleas. V Buckhursts Case. Extinguishment. LEssee for 10 years granted a Rend Charge to his Lessor for the said years, the Lessor granted the remainder in Fee to the Lessee for years: It was the opinion of the justices, that the rent was gone, because the Lessor, who had the rent, was Party to the destruction of the Lease, which is the ground of the rent. 26 Eliz. VI Pulmants Case. Assumpsit. ONe who is indebted promiseth to pay it upon request, in an Action upon the Case upon that Promise, the Party needs not to express the Assumpsit with the request, it being an old debt, but otherwise it is, where there is such a promise, without any duty precedent. VII. Hill. 26 Eliz. In the King's Bench. Assumpsit. A Man in consideration of 20 l. paid him, promiseth to assign to J. S. the Lease of a Stranger: It was adjudged, that an Action would lie upon such a promise, because the Assumor might purchase the House and then assign it. Hil. 26 Eliz. In the King's Bench. VIII. Rawson and Brown's Case. A. Being in prison at the suit of B upon an account, Assumpsit. and in custodia Marescalli. The Marshal suffers him to escape: A. being at liberty promiseth to B. that if he will permit him to be at large, and further, if he do such an act, that he will pay to him 10 l. which he doth not pay: whereupon B. brings Assumpsit against him, it was adjudged that the Action would not lie; for that both the considerations ought to be proved, and A. was at large before. 31 Eliz. In the King's Bench. IX. Strangborough and Warners Case. NOte, Assumpsit. That a Promise against a Promise will maintain an Action upon the Case, as in consideration that you do give to me 10 l. on such a day, I promise to give you 10 l. such a day after. 31 Eliz. X. Escrigs Case. IF an Executor promiseth to a Creditor, Assumpsit. that if he will forbear to sue him until such a time, that then he will satisfy the Creditor his debt; in that case the Execuor is liable to pay the debt of his own goods; adjudged. 30 Eliz. In the King's Bench, Rot. 30. XI. Kirkman and Reignotts Case. A Lease was made to two, Habendum to them, Occupant. and to two others for their four lives, and the longer liver of them: It was resolved, that the two named in the Habendum should not take any thing, and that if the two first die, there should be no Occupancy, for the lives of the two in the Habendum, was intended an Estate to them, and not a Limitation of the Estate of the first two. Pasc. 30 Eliz. XII. Barkhouse Case. DEbt against Lessee for years for rent: Forfeiture. The Defendant claimed Fee in the Land whereas he had no Fee: It was resolved that it was a forfeiture. XIII. Pasc. 31 Eliz. In the Common Pleas. Avowry. IT was resolved by the justices, that an Avowry might be for part of a Rent. Mich. 28 Eliz. In the King's Bench. XIV. Strangden and Burnet's Case. IN an Action of Trover and Conversion of Goods to his proper use in Ipswich: The Defendant pleaded that the Goods came to hands in Dunwich in the same County, and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich, Plead. absque hoc that he is guilty of any Trover or Conversion in Ipswich: It was ruled to be a good manner of pleading, by reason of the special justification, Vide 27 H. 6. But where a justification is general, the County is not traversable at this day, Vide 19 H. 6, 7. 24 Eliz. In the Common Pleas. XV. Infant. AN Infant made a Lease for years rendering rend, and when he came to his full age, he said to his Lessee, God give you joy of it: It was holden by Mead justice, that thereby the Lease was affirmed and made good. Pasc. 25 Eliz. XVI. Fuller's Case. ONe is bound to pay his rent at a day certain, payment before the day, adjudged, doth not discharge him. 29 Eliz. In the King's Bench. XVII. Carter and Martens Case. Payment. TWo are bound for a Debt, the Principal makes the Surety his Executor who pays the Debt generally: Quaere if it shall be as Executor or as Obligor. XVIII. Pophams' Case. Bargain and Sale. LAnd was bargained and sold, the Bargainee levies a Fine of the Lands, and afterwards within the six months the Deed is enroled. It shall pass by the Fine, and the Conusee shall have the Land, for the enrolment shall relate to the time of the bargain and sale. 18 Eliz. XIX. Henninghams' Case. IT was adjudged in this Case, that he who is special Heir by the Custom, as of Borough English Land, shall have the Writ of Error, and not the Heir at the Common Law. Hil. 19 Eliz. Adjudge. XX. Parry and Herbert's Case. LEssee for years upon Condition that he shall not grant over the Land by Will or otherwise, Condition. and he deviseth the same to his Executors, who except it only as Executors, and not as Devisees: It was holden, that the Condition was broken: because he had done as much as in him lay to have granted it over. In the Exchequer. XXI. Sir Thomas Hobbies Case. A Man hath issue two Sons, and is attainted, Heirs. the eldest Son purchaseth Land, and dyeth without issue, the second Son shall inherit the Land as Heir to him, notwithstanding the attainder of the Father, because the blood is not corrupted between the two Sons. Mich. 29 Eliz. In the King's Bench. XXII. Barton and Edmund's Case. AN Infant and another were bound for the debt of the Infant, Infant. the Infant at his full age promised to save the other harmless, the Infant died; It was adjudged, that upon this Assumpsit, Assumpsit. an Action upon the Case did lie against his Executors. XXIII. Mich. 36 Eliz. In the King's Bench, adjudged. IF an Executor promise to pay a Debt when he hath not Assets; It was the Opinion of all the justices; that no Action upon the Case lieth against him; but if he hath assets, than it is otherwise: And the Heir if he hath nothing by descent, is not subject to an Action upon such a promise. Mich. 28 Eliz. XXIV. The Lord Pagets Case. Indictments. AN Indictment was Quare vi & armis clausam A. B. apud D. fregit, whereas A. B. then had a Lease at Will of the land, the matter was for digging of Turfs: the Indictment was holden to be good. XXV. 25 Eliz In the King's Bench. Indictments. INdictment De uno Equo, where it was a Gelding, holden not good: But otherwise it is, where Trespass was brought de Equo castrato, and the jury found a Gelding, and adjudged for the Plaintiff. 26 Eliz. XXVI. Tucker and Nortons' Case. Execution. AN Infant in Execution upon condemnation in Debt sued a Writ of Error, his Father and Brother bailed him: It was said the Recognisance shall be by them two only that the Infant shall appear, and if the judgement be affirmed, that they pay the money, and not that they shall render his body to prison, for when he is once discharged out of Execution, he shall never be in Execution again. XXVII. Mich. 29 Eliz. In the Common Pleas. Nobleman. Recognizance. IT was holden by the justices, That a Nobleman shall be bounden with his bail in a Recognizance, that he shall render his body, and that upon the Statute of 13 E. 1. If he hath not goods or lands, his body shall be taken in execution, for the Law in such case excepts only Clarks. XXVIII. Hil. 26 Eliz. In the Exchequer. Felo de se. THe Queen granted to one Catalla utlagatorum & felonum de se within such a Precinct, One indebted to the Queen having Goods is felo de se, within the Precinct: Resolved the Queen should have the Goods to satisfy her debt. 26 Eliz. In the King's Bench. XXIX. King and Cottons Case. LEssee for life, the remainder in tail, the remainder in fee, Disseisin. Lessee for life makes a Deed of Feoffment of the Land, and delivers it, and makes a Letter of Attorney to another to deliver Seisin, who enters and makes Livery accordingly; adjudged that the Attorney is a Disseisor. 26 Eliz. In the King's Bench. XXX. Gerrard's Case. THe Owner of the Lands severed his Tithes, Prohibition. and a stranger took them and carried them away. The Parson libelled in the Spiritual Court against the Owner of the Land for the Tithes; who thereupon prayed a Prohibition. It was adjudged no Prohibition should issue in this Case; for that he might plead the same matter in Bar in the Spiritual Court. Hil. 31 Eliz. XXXI. Willet and wilkinson's Case. NOte, it was adjudged, Surrender. that if Lessee for years take another Lease from the Guardian in Soccage, that the same is a Surrender of his first Lease: Note, the second Lease was made in the name of the Guardian. Trin. 26 Eliz. XXXII. Ould and Coneys Case. IT was adjudged, Commoner, Coneys. that a Commoner cannot kill Coneys which destroy his Common, though he hath not any other remedy. Trin. 29 Eliz. In the King's Bench. XXXIII. May's Case. ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him, receiving a certain sum of money, the Merchant sent the Merchandizes by the Carrier, without receiving the money: It was the opinion of the justices, that the Buyer should not be charged for the money, for it was a conditional bargain, and it was the folly of the Merchant to trust the Carrier with the Wares. Mich. 30 Eliz. XXXIV. Haltons' Case. A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery, Recognizance. enrolment. and the Recognizor died before it was enroled, it was doubted, if it might be enroled at the Petition of his Executors; it was agreed by the justices that it might be well enough, for it is like to a Conusans of a Fine before a judge, which may be removed out of the hands of the judge by Certiorari, and yet it is not a Record till the perfection of it: At the same time it was doubted also, if the Chancery would aid a man, when there wanted the words (Heirs) in a Deed where the land was sold for money. Chancery compel Attornment. But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn. Hil. 27 Eliz. XXXV. Holland and Hopkins Case. IN Ejectione firmae it was agreed by the Court, that if a Disseisor be of an 100 Acres, and he lets the same to divers for Years, that the entry into one Acre by the Disseisee is an entry against them all; but if they had been Tenants for life, Quaere, for that then he might have his Action against them: And it was said, Entre congeable. that if one makes a Lease for years, rendering for the first two years 10 l. and afterwards 30 l. every year, with condition, if the rent of 30 l. or any part of it be behind, that the Lessor enter; The Lessor enters for not payment of the 10 l. that his entry is lawful, for the 10 l. was parcel of the rent, for it was but one rent. Trin. 29 Eliz. In the King's Bench. XXXVI. Clamp and Clamps Case. Copyholder Surrender. A Copyholder in possession surrendered the Reversion of his land post mortem suam to the Lord to an use, etc. It was adjudged, that thereby nothing passed. XXXVII. Trin. 21 Eliz. In the Common Pleas. A Lease was made of a Manor, with all Gardens, Orchards, Yards, etc. and with all the profits of a Wood, except to the Lessor forty Trees to take at his pleasure: It was a Question, if the Lessee should have the Wood: It was the opinion of Dyer, That the Wood was not comprised within the Lease, but the Lessee should only have the profits, as pawnage, Leases. herbage, etc. And he said it was a Case adjudged; a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit, that the Lessee thereby could not cut the Trees, nor do waste. Mich. 33 Eliz. In the Exchequer. XXXVIII. Butler and Lightfeet Case. IT was holden by the Barons, Copyholder Surrender. 3 Leon. 239. That if Tenant for life be of a Copyhold, the Remainder over in Fee to another, he in the Remainder, may surrender his Estate, if there be no custom to the contrary; for the Estate of Tenant for life, and he in the Remainder, are but one Estate, and the admittance of the particular Tenant is the admittance of him in the Remainder. XXXIX. Mich. 33 Eliz. In the Exchequer. IN an Information upon the Statute of 5 Eliz. cap. 4. Upon Statute of 5 Eliz. Apprentices. against one for exercising the Trade of a Chandler, not having been an Apprentice to the same by the space of 7 years: It was holden by the justices, That for as much as he had been Apprentice to a Tailor for 7 years, which is one of the Trades mentioned in the said Statute, that the penalty thereof did not extend to him, but judgement was given against the Informer: For it was holden clearly upon the said Statute, That if one hath been an Apprentice for 7 years at any Trade mentioned within the said Statute, he may exercise any Trade named in the said Statute, although he hath not been an Apprentice to it.— Mich. 33 Eliz. In the Exchequer. XL. Sir John Hawkins and Chapman's Case. IF A. be bounden to B. by Obligation with Condition for the performance of Covenants although the Covenants, Assignment of Bonds to the Queen. or some of them, be for payment of money, yet the assignment of such Bonds to the Queen shall not be received, and if it be assigned, it shall be put out of the Court; For no Bonds shall be assigned ut supra, but such which are made for payment of money. XLI. Mich. 33 Eliz. In the Exchequer. A. Lessee for years, the remainder to B for years; the term of A. came to the Queen and afterwards the Reversion. Clark Baron said, That the Lease of B. should begin presently, and cited the Case 1 Eliz between Wortesly and adam's, where a Lease for years is made to A. and afterwards a Lease in Reversion is made to B. for years. A. obtains an Estate for life from him in the reversion; the Lease of B. shall begin presently: But Manwood Chief Baron held that the first Lease was not extinct. XLII. Mich. 33 Eliz. In the Exchequer. Upon Stat. 31 Eliz. of Inmates. UPon the Statute 31 Eliz. cap. 7. the Case was this: A Woman having a great Message, viz. a Brewhouse allotted to her for her Dower, let the same to another, reserving to herself two or three Rooms of it, and now an Information was exhibited against the Lessee upon the said Statute. Clark Baron, A Cottage proprie loquendo, is where a poor man inhabits, and this being a great Message cannot be said a Cottage; Inmates are, where there are more Families than one. Manwood, Be it a Message or a Cottage, for more Families than one makes a Message a Cottage, as to this Statute. Gent. The words of the Statute are, There shall not be more Families than one in any Cottage made, or to be made, and I conceive it ought to be a Cottage accounted in Law, before the inhabitations of the Inmates. Clark, If I grant to you all my Cottages in D. my Messages shall not pass: If I marry my Daughter, and she and her Husband inhabit with me in the same house, are these Inmates? Manwood. An Inmate is such an one who is at his own finding, and therefore if the Husband and Wife are entertained there at the charge of the Father of the Daughter, they are not Inmates: And if in our Case any Inmate be, the same is the Woman, for she hath the lesser part of the Message. Mich. 33 Eliz. In the Exchequer. XLIII. Cursons' Case. 3 Leon: 239. Execution of a Statute binds the King. CUrson acknowledged a Statute to Alderman Starkey of London, and afterwards he acknowledged another Statute to one Hampden, who assigned the same to Fitton, who assigned the same to the Queen: Starkey sued forth Execution upon his Statute, and the Lands of Curson are Extended, and he hath a Liberate of it: Assignment to the Queen. It was agreed by all the Barons, if Starkey had Execution upon his Statute before the Queen, the Execution shall stand against the Queen, and the Queen should not put him out. A. recovers Debt in the King's Bench, so as he hath Title to sue Execution by Elegit. The Defendant sold his Lands, and afterwards A. assigned his Execution to the Queen: It was holden, that the Queen should not have Prerogative against the Feoffee, to have Execution of the whole Land; and it was holden by Manwood Chief Baron, If Execution be had upon a puisne Statute, and that is afterward avoided by an elder Statute, and the elder Statute is satisfied by the Execution, now the younger Recognizee shall enter without suing forth a new Execution. Trin. 26 Eliz. In the King's Bench. XLIV. Clarks Case. IN Ejectione firmae, The Case was, the Master. Brothers, Leases by Corporations. Misnosm. and Sisters of the Hospital of the blessed Mariae Virgins, by Indenture, by the name of the Hospital Beatae Mariae, etc. leaving out the word (Virgins) leased the Land: It was resolved, that notwithstanding the want of the word (Virgins) that the Lease was good: Then it was moved, that the words of the Indenture are, Haec Indentura inter Magistrum, Fratres, & Sorores Hospital. Beatae Mariae, etc. Testatur; that the said Master, with the assent of the Brothers and Sisters aforesaid, had leased to A. in cujus rei testimonium, the said Master, with the assent of the Brothers and Sisters aforesaid had put their common Seal: Ayliffe and Clench justices, held that the Lease was void, for here the Brothers and Sisters, being one entire Body with the Master, are not parties to the Indenture, but give their consent only: And it is not like to the Case, where Abbot or Prior makes a Lease for years, with the assent of their Covent, for the Monks and Friars, being dead persons in Law, cannot be parties to the Lease; but here in the Case at Bar, the Brothers and Sisters are persons able in Law: And it is not like to the Case of Parson, Patron, and Ordinary, where the Parson with the assent of the Patron and Ordinary, grant a Kent-charge, for there the Parson is the principal Grantor, and the others have not any express interest in the Land charged: Gaudy justice contrary, It is more honourable for judges to maintain Leases made by Corporations, than for to permit them to avoid the same: And he said for law, If two joint-tenants be of Lands, and they make the like Indenture, viz. Testatur, that one of them with the assent of the other deviseth the Land, Leases, in witness whereof he, with the assent of the other, hath put his Seal, it is a good demise by them both: But Clench said, that is not like our Case, for the two joint-tenants are distinct persons and the one of them may assent to the other; but in our Case, the Master, Brothers, and Sisters are but one person in Law, and a Body cannot be distinct, so as one can consent to the other: which Ayliffe concessit: Wray Chief justice was absent in the Star-Chamber. Trin. 26 Eliz. In the King's Bench. XLV. Harvey and Harveys Case. Suit for Legacies. Prohibition. CLare Harvey libelled against Sebastian Harvey, the Executor of Sir James Harvey their Father, for a legacy bequeathed to him by his Father in his Will. By which he willed, that after his death his Goods should be divided and parted betwixt his Children, according to the laudable custom of London, and averred in his libel that the Goods and Chattels whereof the Testator died possessed, amounts to such a sum, and that it belonged unto him, being one of his children, to demand so much, Virtute Legationis predict. The Defendant came and prayed a Prohibition, and Wray Chief justice conceived he ought to have it, for here is not any legacy, but the Testator setteth forth his meaning, that his pleasure is that the custom of London should be observed in the disposition of his Goods; and the said Clare is put to his Writ de rationabili parte Bonorum. But yet afterwards, a special Consultation was granted. Pasc. 27 Eliz. In the Common Pleas. XLVI. sanderson's Case. Leet. NOte, It was adjudged by the Court, that Pound-breach is not inquirable in a Leet, for it is not a common Nusans: But Rhodes Serjeant said that excessive Toll is inquirable in a Leet. Vide Book of Entries 390. XLVII. Pasc. 37 Eliz. In the Common Pleas. Abatement of Writ. IN a Quare Impedit by the Queen, exception was taken to the Writ, because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam: the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery. Amendment. XLVIII. Pasc. 27 Eliz. In the Common Pleas. Plead. IN a Writ of Entry for Disseisin, the Tenant said, that the House in demand is within the City of London, and that the said City is an ancient City, and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris, & tenementis suis, etc. extra Muros Civitatis praedict. and said that he himself is a Citizen of London, and demanded judgement of the Writ; and to the Pleading he further said, Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict. Exception was taken to the Plea, because the Tenant did not show before that by their custom they ought to be impleaded: And by the Opinion of the whole Court, the Tenant ought to have showed, that the Citizens for their lands there ought to be impleaded in the Hustings, etc. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict. do not supply the defect aforesaid: And afterwards it was awarded that the Tenant plead Ouster. Mich. 21 Eliz. In the Common Pleas. XLIX. Hunt and Sones Case. AN Action upon the Case by W. Hunt against W. Sun. Assumpsit. 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. & 30. ibid. The Plaintiff declared, Quod cum idem Hunt was seized in his Demesn as of Fee, of certain lands, and shown the same in certain; praedict. Sun in consideration that the said Hunt permit the said Sun occupare terras praedict. ab eodem die. 20 Julij 27 Eliz. usque ad secundum diem Novembris, which should be in Anno 1589. assumed and promised, that he the said William Sun ad festum omnium Sanctorum proxime sequend. 10 l. 2 s. 6 d. ac ab inde annuatim durante dict. termino. 20 l. 5 s. ad festa Annunciationis Beatae Mariae, ac omnium Sanctorum, per aequales portiones solvend eidem Hunt bene & fideliter contentare vellet, at licet praedict. W. Hunt permisit praefat. Sun occupare terras praedict. a dict. 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict. 20 diem Julij 27 Eliz. & ant praedict. diem secund. Novemb. An 28 Eliz. dict. fest. omnium Sanctorum An. 27. Supradict. ac fest. Annunciationis Beatae Mariae Virgins, ac fest. omnium Sanctorum 28 Eliz. praeterierunt, praedict. tamen W. Sun dict. 10 l. 2 s. 6 d. ad praedict. fest. omnium Sanctorum proxime sequend. post permissionem & assumptionem predict, ac aliam 10 l. 2 s. 6 d. ad fest. Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest. omnium Sanctorum An. 28. Eliz. superdict. nondum solvit. The Defendant pleaded, that the Plaintiff entered into parcel of the Premises 6 October 28 Eliz. & eadem occupare eundem Sone non permisit; upon which they were at Issue, and it was found for the Plaintiff; it was moved in stay of judgement, that the Plaintiff had no cause of Action before that all the Term was expired; for it is an entire Assumpsit, and cannot be severed by action, and therefore it was said, that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth, for the sum of 20 l. is one sum entire: But if I promise to pay another, at Easter next 10 l. and at Midsummer as much, here they are several Assumpsits, and upon default of payment of the first sum an Action will lie without excepting the latter payment. But at last the Court agreed, That judgement, notwithstanding that exception should be given for the Plaintiff, and that the Declaration was good enough, as well in respect of the Exception aforesaid, as also that the word (Licet) was effectual enough to set forth the permission. L. Hil. 31 and 32 Eliz, In the Common Pleas. A. Disseised B. of two Acres of Land and leased one of them to C. at will, and the other Acre to D. at will, and they entered accordingly: B the Disseisee by Lease leased both Acres to E. for years, and entered into one of the Acres in the name of both, and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres. LI. Mich. 32 Eliz. In the Common Pleas. 2 Cro. 655, 656 plus. 2 Roll. 416. Johnson versus Smart. count. A. Seized of certain Lands and having two Sons, devised part of his Lands to his eldest Son in tail: and the other part of his Lands to his younger Son in tail, with this clause in the Will, that if any of his Sons died without Issue, that then the whole Land should remain to a stranger in Fee, and died the Sons entered into the Lands devised to them respectively, and the younger Son died without issue, and he to whom the Fee was devised entered: It was adjudged, That this Entry was not lawful, and that the eldest Son should have the Land by the implicative devise. Mich. 32 Eliz. In the Common Pleas. LII. Frice and Foster's Case. IN Ejectione firmae, the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before, for three years; and upon the Evidence the Plaintiff shown a Lease, bearing date the 13 day of January the same year, and it was found by Witnesses, that the Lease was sealed and delivered upon the Land the 13 day of January: Variance. Whereupon Puckering and Cowper Sergeants moved on the part of the Defendant, that for that variance between the Declaration and the Evidence of the Plaintiff, that the jury might be discharged: Evidence good to maintain Issue. But Anderson Chief justice said, that the Evidence was good enough to maintain the Declaration, for if the Lease was sealed and delivered the 13 of January, it was then a Lease 14 January, Quod caeteri Justiciarii concesserunt. LIII. Mich. 32 Eliz. In the Common Pleas. IN a Quare Impedit against the Bishop of Coventry and Lichfield: The Case was, that A. seized of an Advowson in Fee, Quare Impedit by Executors. the Church voided, the Bishop collated wrongfully, A. died, Collation. it was holden that his Executors might have a Quare Impedit upon that disturbance, and that by the equity of the Statute, which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator, 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors. Mich. 32 Eliz. In the King's Bench. LIV. Harvey and Thomas Case. THe Case was that the Husband seized of Land in the right of his Wife, made a Lease of it for years, Fine by the Husband where avoids a Lease & ê contra 1 Roll. tit. Charge in Marg. 389. Blow. Quaer. 31. 261. ib. plus. and afterwards he and his Wife conveyed the Land to a stranger by Fine, the Husband died. Wray Chief justice was of opinion that the Conusee should hold the Land discharged of the Lease. Gawdy, contrary, In case of a Rent granted, or a Recognizance acknowledged by the Husband, the Conusee of the Fine shall avoid any of them; But in this Case the Conusee meddles with the Land itself, and an Estate in the Land is conveyed by the Husband, which none but the Wife or her Heirs shall avoid; and if the Wife, after the death of her Husband, accept the Rent upon such a Lease, by that the Lease is confirmed. Mich. 33 Eliz. In the King's Bench, LV. Blaby and Estwicks' Case. IN Assumpsit, It was moved in stay of judgement, Assumpsit. that one of the Defendants was dead after verdict; but notwithstanding that Allegation, judgement was given, Attornment. for the Court cannot take Notice of it judicially, nor any of the Parties hath day in Court to plead it, and therefore the Court is not to have regard to such Informations. Wray, It is not honourable for us upon such surmises, which cannot be tried, to delay judgement; and also the Party is not without remedy, for he may have a Writ of Error. 33 Eliz. In the King's Bench. LVI. Hore and Briddleworths Case. HOre brought Trespass against Briddlesworth, Quare clausum & Domum suam fregit; the Defendant pleaded, and put the Plaintiff to a new Assignment, i. e. a House called a Stable, a Barn; and another House called a Carthouse and Garnier: And that was assigned for Error for that Assignment is not warranted by the Declaration. Gawdy said it was good enough, for Domus in the Declaration contains all things contained in the new Assignment; but if the Declaration had been of a Close, and the new Assignment of a Barn, it had not been good. Wray Chief justice, Domus est nomen collectivum, and contains many Buildings, as Barns, Stables, etc. And such was the Opinion of the Court. Mich 33 Eliz. In the King's Bench. LVII. Man's Case. Prohibition. MAn was sued before the Commissioners in Ecclesiastical Causes, for an Incestuous Marriage, viz. for marrying his Wife's Sisters Daughter, and although it be not expressly within the Levitical degrees, yet because more farther degrees are prohibited the Archbishop of Canterbury, and other the Commissioners gave Sentence against him, Consultation. upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special, that it be not within the Levitical degrees, and therefore a Consultation was granted. Trin. 26 Eliz. In the King's Bench. LVIII. Doylies' Case. Appeals. IN an Appeal de Roberie against Doyly; It was agreed by the justices that the Party rob shall have an Appeal of Robbery 20 years after the Robbery committed, and shall not be bound to bring it within a year and a day, as in the Case of an Appeal of Murder: Vide contr. 22 Ass. 97. vide Stamford 62. Trin. 26 Eliz. In the King's Bench. LIX. Ruishbrook and Pusanies' Case. THe Plaintiff brought Trespass for pulling down his Hurdles in his Close: The Defendant justified, by reason that one Beddingfield was Lord of the Manor of D. and that the said Beddingfield, and all those whose Estate he had in the said Manor, had had a free course for their sheep in the place where etc. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Manor, and that the said Beddingfield let to the Defendant the said Manor, and because the Plaintiff erected Hurdles without leave, etc. in the said Close, he cast them down, as it was lawful for him to do: The Plaintiff replied of his own wrong without cause, etc. It was holden by the justices to be an ill Plea, Traverse. for the Plaintiff ought to have traversed the Prescription. 19 Eliz. In the Common Pleas. LX. Par Marquis of Northamptons' Case. PAr Marquis of Northampton took to Wife the Lady Bourchier, Heir of the Earl of Essex: Leases, by a Baron contrary to Act of Parliament, void. 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit, etc. with a Grant and Render to them for Life, the remainder to the right Heirs of the body of the said Lady. And afterwards by Act of Parliament ●5 H. 8. It was enacted. That the said Lady should retain part of her Inheritance, and dispose thereof as a Feme sole, and that the said Marquis should have the residue, and that he might lease the same by himself without the Wife for 21 years, or lesser term, yielding the ancient Rent, being Land which had been usually demised, etc. The Marquis leased the same for 21 years, and afterwards durante termino predict. he let the same Land to another for 21 years, to begin after the determination of the former Lease. It was moved that the last Lease was void, for three Causes; 1. Because the Marquis had but for Life, and then it cannot be intended, that the Statute would enable one, who had an Estate so determinable to make such a Lease, which peradventure could not begin in his Life. 2. The Letter of the Act is 21 years or under; and the word (under) strongly expounds the meaning of the Act to be not to extend to such an Estate, for hereupon the matter is a Lease for 40 years. 3. Because the Land leased is the Inheritance of the Wife; and it was said that in the Case of one Heydon such a private Act of Parliament was strictly construed, Acts of Parliament. It was enacted that all Copies for three Lives granted by the Lord Admiral, of the Lands of his Wife which was Queen Katherine should be good: The Admiral granted in Reversion for three Lives. It was holden that the Grant was void, and not warranted by the said private Act of Parliament. Dyer, The words are general, omnes dimissiones, therefore not to be restrained to special Leases. Manwood, A Feme covert by duress joins in a Lease with her Husband, it shall bind her. The Case was adjourned. LXI. Mich. 19 Eliz. In the Common Pleas. THe Queen leased for years rendering 10 l. Rent; the Lessee granted the Land over to A. rendering 20 l. Rent: A. granted the Land over to B. who surrendered to the Queen, and took a new Lease: And Manwood said, that the first Lessee should have an Action of Debt for the Rent of 20 l. against him, Debt for Rent. who was possessed of the Land, and not against A. his Assignee, for it is a Rent issuing out of the Land, and he who hath the possession of the Land shall pay it, and no other; for if any part of the Land be evicted, the Rent shall be apportioned; and because it is merely a Rent, and ensues the priutiy real, viz. the possession of the Land, and not the privity personal, the Person of him who was party or privy to the Contract; and he said, If the first Lessee, who reserved the Rent, entered upon the Land, the Rent is suspended. Dyer, The first Lessee hath Election which of them he will sue, 18 H. 6. 1. in Debt, against Lessee for years, for the Arrearages of Rent reserved upon it, he needs not declare that the Lessee had entered, for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt against the Lessee, notwithstanding the Assignment. Mich. 26 Eliz. In the Common Pleas. LXII. Bluets Case. BLuet granted the next Avoidance to Stell and Brooks, and was bound to Brooks in an Obligation that he should enjoy the said Presentment without any disturbance or claim of the said Bluet: Stell released to Bluet his Interest on the said Advowson; The Church became void, Bluet▪ offered to join with Brook, Obligation forfeited. in presenting to the Avoidance: It was holden in this Case, that the Obligation was forfeited, although that Bluet had a puisne Title to it, after the Obligation was entered into. Mich. 32 Eliz. In the Common Pleas. LXIII. Shrewsbury and the Inhabitants of ashton's Case. Action upon Statute of Hue and Cry. AN Action was brought by Shrewsbury against the Inhabitants of the Hundred of Ashton in the County of Bucks, upon the Statute of Hue and Cry: It was moved by Fleetwood Sergeant, for the Defendants That if upon such Hue and Cry the Inhabitants do their endeavours as much as in them is, to pursue and take the Malefactors, and yet they cannot apprehend them, that in reason they ought not to be charged: But the whole was very strongly against him: For Anderson Chief justice said that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons, or to satisfy the Party rob: and the Party rob is not bound to give notice to the Inhabitants, nor to direct them which way the Felons took their flight, but the Inhabitants are bound to pursue the Felons without any such instruction. And afterwards the Inquest was taken, and gave a Verdict in this manner: That where the Plaintiff had declared that the Robbery was done in the Parish of D. in the Hundred aforesaid, the jury found, that the place where the Robbery was done was a Lane within the said Hundred and that the one side of the said Lane was within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done on the side of the said Lane, which was in the Parish of S. and prayed the Opinion of the Court upon the matter: And the whole Court was clear of Opinion. That notwithstanding the Exception, the Plaintiff should have judgement, for here is the right Hundred, which ought to be charged, and the mistaking of the Parish was not to the purpose. Mich. 32 Eliz. In the Common Pleas. LXIV. Josselin and Josselins Case. IN Debt; the Plaintiff declared, That he let certain Lands for years to the Defendant, rendering Rend payable at the Feasts of the Annunciation and St. Michael, or within forty days after every of the said Feasts, and that the Rent was behind at the Feast of St. Michael last passed, unde actio accrevit: The Defendant pleaded, Nihil debet; upon which they were at Issue: It was showed to the Court that here upon the Pleading is a jeofail, for the Rent is reserved payable at the said Feasts, Jeofails. or within forty days after; and he declares that the said Rend, upon which the Action was brought, was behind at St. Michael, without respect to the forty days after, which cannot be; for before the forty days after each Feast, no Action did lie; whereupon the Court awarded a Repleader. Mich. 32 Eliz. In the King's Bench. LXV. The Queen and the Earl of Shrewsburies' Case. THe Queen granted to George Earl of Shrewsbury, Grants of the King. Office of Marshal of the King's Bench. An. 15 Eliz. the Office of Earl Marshal of England, and now came the said Earl and prayed that J. N. one of his Servants, to whom he had granted the Office of Marshal of the King's Bench, might be admitted to it, because that the same is an Office incident to his Office, and in his power to grant; and that Knowles, to whom the Queen had granted the same Office of Marshal of the King's Bench, which she had by the Attainder of Thomas Duke of Norfolk might be removed. And a Precedent was showed M. 14 and 15 Eliz. between Gawdy and Verney, where it is agreed, That the said Office was a several Office from the said great Office, and not incident to it; And as to the Case of 39 H. 6. 33 & 34. the truth is, that the said Marshal of the King's Bench was granted expressly to the Duke, and so he had it, not as incident to his Office of Marshal of England: On the other side were three Precedents showed; In the time of Edward 2. That the Office of Marshal of the King's Bench was appendent to the said Office of Marshal of England. And 8 H. 2. when the said Great Office was in the King, he granted the said Office of Marshal of the King's Bench: But 26 R. 2. both Offices were rejoined by Parliament as they were in ancient time before; and there was also shown one Patent of 4 E. 4. and another of 19 H. 8. by which it appeared that the said inferior Office had ever been part of the Grand Office; Then it was moved, That when the said Office is in the King's hands, and the King grants the said Under Office, If the same was for ever severed from the Grand Office. Wray Chief justice, It is a severance of it; for the chief Office is an Office of Dignity, which remains in the King; but the under Office is an Office of Necessity, and the King himself cannot execute it, wherefore of necessity he ought to grant it. Another matter was moved, Recital in Grants of the King. If the Grant of the King to the Earl of Shrewsbury was good, because in the Grant to Verney of the Under Office, it is not recited according to the Statute of 6 H. 8. cap. 9 As 20 Ass. 6. the King seized of the Honour of Pickering, to which a Forest was appendent: The Bailywick of which Forest he granted in Fee rendering Rend, and afterwards he granted the Honour with the Appurtenances, and afterwards the Bailie committed a forfeiture, and the same was found in Eyre, for which the Office of Bailywick was forfeited; the Grantee of the Honour seized it; yet it was holden that the King should have the Rent: And here in this Case, the Earl of Shrewsbury shall have this Office in his power to grant it, and so much the rather, for that it was granted but for life. Mich. 32 Eliz. In the King's Bench. LXVI. Coney's Case. Roll. Abrig. 894. Sale of Goods by the Sheriff upon Execution, where good, where not. IN Debt; It was holden, that if the Sheriff upon the Fieri facias makes sale of the Goods of the Party, and afterwards doth not return his Writ, yet the Sale is good: The Case went further: That upon the Fieri facias, the Sheriff returned, That he had seized Goods of the Party to such a value, Sed non invenit Emptores, and afterwards before sale of them, he is discharged, and afterwards a Distringas issued to the new Sheriff, to cause the ancient Sheriff to sell the said Goods; who did so: It was holden, that the said sale of them was void, for the new Sheriff ought to have sold them: Vide 34 H. 6. 36. A Distringas to the old Sheriff to sell and deliver the Goods to the new Sheriff. Mich. 19 Eliz. In the Common Pleas. LXVII. NOte, by Dyer and Manwood, A. leaseth to B for years, Remainder where void. the remainder to the right Heirs of the said B. and makes Livery. That the remainder is void, because there is not any person in esse, who can take presently by the Livery, and every Livery ought to have its operation presently: But where a Lease is made to B. for life, the remainder to his right Heirs, there he hath a Fee executed; and it shall not be in Abeyance, for there he takes the Freehold by the Livery. Mich. 19 Eliz. In the Common Pleas. LXVIII. Hind's Case. UPon an Habeas Corpus for one Hind, Habeas Corpus. the Warden of the Fleet returned, That Hind was committed to the said Prison by the commandment of the Commissioners in Causes Ecclesiastical. It was holden, that the Warden in his return, 'Cause of commitment, where must be returned, where not. aught to certify the cause for which he was committed; and then upon the return the Court ought to examine the cause if it be sufficient or not. But if one be committed to Prison, by the commandment of the Queen's Privy Council, there the cause needs not to be showed in the return, because it may concern the state of the Realm, which ought not to be published. LXIX. Hil. 31 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default; Whereupon a Writ issued to Inquire, if the Husband died seized, and of the damages, and the Sheriff took an Enquest of Office, by which it was found, that the Baron did not die seized, prout eis constare poterit, and that Inquisition was returned by the Sheriff, and filled: It was moved, Return of the Sheriff, where void. That the said Inquisition and Office was not good, for the Office ought to find expressly, that the Husband died seized, or not; and not doubtfully as it is here, prout eis constare poterit; and for that cause the Award of the Court was, That the return should be taken off the File, because it was insufficient, and a new Writ was awarded. Mich. 19 Eliz. In the Common Pleas. LXX. The Lord St. John and Sir John Gray's Case. Grants of Omnia bona, by an Executor, what passeth. NOte, by Dyer and Manwood, upon an Evidence unto a jury, in Debt, brought against the Defendant, as Executor of his own wrong: That if an Executor gives omnia bona sua, the Goods which he hath as Executor shall not pass, which vide 10 E. 4. 1. by Danby; But the contrary of that was holden by Wray Chief justice of the King's Bench: And Plowden in the Case of Bracebridge, 18 Eliz. and they said that the said Case of 10 E. 4. was not Law; for by such grant made by Executors the Goods of the Testator should pass. Mich. 18 Eliz. In the Common Pleas. LXXI. Tailor's Case. Outlawry, how to be avoided. Tailor was Outlawed in debt, where a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent: It was holden, that the Party should avoid the same by Plea: Then it was moved, if the Plea should be pleaded by Attorney, or in Person, to which it was said by Manwood justice, that where Matter in Fact is pleaded in avoiding of an Outlawry, it ought to be pleaded in person; but a matter of Record might be by Attorney. And so it was said by Ford Prothonotary, it was agreed in Sir Tho. Chamberlains Case, 7 Eliz. and so it was agreed in the Principal Case. 18 Eliz. In the King's Bench. LXXII. Bettuans Case. IN Ejectione firmae. The Case was, A Fine was levied to Cook and three others; and by an Indenture between the Parties to the Fine it was declared, that the said Fine was levied ea intention, That the Conusees should make an Estate of the said Land to such a person, which the Conusor should name, and in the end of the said Indenture was a Proviso, that the Conusees should not be seized to any other use, but to that which was specified before, and that the Conusees should not encumber the said Lands. And the Opinion of all the justices of the King's Bench was, Fines levied to uses. That upon the said Indenture, the Conusees are seized to their own use until the Conusor hath made nomination; and if he dieth without any nomination, than the use should vest in his Heir: It was further given in Evidence, that the Conusor named the said Cook one of the Conusees, and willed that the other three Conusees should release to him. Gaudy justice held, That that by nomination, the use did vest in Cook, for he said, it had been adjudged, that where before the Statute of 27 H. 8. One enfeoffed divers persons to his use; Feoffment to Uses. and the Feoffor willed that his Feoffees should make estate to such person as his Son and Heir should name, and died; the Son and Heir named one of the Feoffees; that the same was a good nomination, etc. Wray and Jefferies to the contrary; for after this release Cook is in the whole by the Conusor, and not by his Co-Feoffees, and by this limitation the Conusor ought to name such a person which ought to take the estate: and so cannot one joyntenant from his Companion, etc. And also the words are so that they four shall take the estate. 14 Eliz. In the King's Bench. LXXIII. The Bishop of Rochester's Case. IN Ejectione firmae the Case upon Evidence was, Grant of a Reversion by a Bishop. Attornment. the Bishop of Rochester, 4 E. 6. made a lease for years to B. rendering rend, and afterwards granted the Reversion to C. for 99 years, rendering the ancient rent, Habend. from the day of the Lease without impeachment of waste, which Grant was confirmed by the Dean and Chapter: But B. the Lessee did not attorn; and in default of Attornment it was holden by the whole Court, that the Lease was void, for it is made by way of Grant of the Reversion: But by Catlin, if the Bishop had granted the Reversion and also demised the Land for 99 years, it should pass as a Lease to begin first after the former Lease determined. And as to the Attornment, it was given in Evidence, that B. after the notice of the Grant to C. had speech with C. to have a new Lease from him, because he had then in his Lease but 8 years to come, but they could not agree upon the price: And the justices conceived that that was an Attornment, because he had admitted the said C to have power to make a new Lease: Also the said B. being in company with one R. and seeing the said C. coming towards him, said to the said R. See my Landlord meaning the said C. Bromely Solicitor, Attornment. the same is no Attornment being spoken to a stranger, Barham contrary, because he was present: It was holden by the whole Court that it was a good Attornment: But if the Attornment was not before the Bishop was translated to Winchester the Lease should be void; and although the confirmation of the Dean & Chapter was before the Attornment, so as no estate was vested in C yet it was good enough: for the assent of the Dean and Chapter is sufficient, be it before or after, by Catlin, Southcoat, and Whiddar justices, but Wray held the contrary. Pasc. 26 Eliz. In the King's Bench. LXXIV. russel's Case. Execution, where not good upon a Capias without a Scire Facias. RUssel was condemned in an Action of Debt, and after the year and day, the Plaintiff sued a Capias ad Satisfaciend. against him, and by force thereof he was taken, and committed to the Marshal, as in Execution: It was the Opinion of the justices that it was a void Execution, and not only voidable by Error, and therefore the Defendant was discharged; for it is not any Execution at all; and the Plaintiff may have a Scire facias when he pleaseth. Pasc. 26 Eliz. In the King's Bench. LXXV. Bluet and Cooks Case. Action for Words. IN an Action upon the Case, the Plaintiff declared for scandalous words; viz. Lambert. is a Thief, and Bluèt innuendo the Plaintiff, is his Partaker. It was the Opinion of the whole Court that the words were not actionable, because they were too general, for it may be that the Plaintiff is his Partaker in other Matters. But if the words had been. That Bluet, knowing Lambert to be a Thief, was his Partaker, there the Action would have lain. judgement was given against the Plaintiff. Trin. 33 Eliz. In the King's Bench. LXXVI. Hunt and Gonnels Case. Bail. HUnt recovered in Debt against Gonnel, and procured against him a Capias ad Satisfaciend. upon which Non est inventus is returned, Execution, but the Writ is not filled. Hunt sued a Capias against the Mainpernors, who are taken in Execution: It was the Opinion of the justices, that they should avoid this Execution by Error, and not by Plea or Surmise, etc. But if the Capias returned against Gonnel had been filled, and after embezzled. Quaere of the Error, for the Court conceived that the matter shall be examined, but Quaere to what intent. Wray said to punish the Deceit, but not to maintain the Execution against the Mainpernors. Trin. 26 Eliz. In the King's Bench, LXXVII. Saer and Blands' Case. SAer Parson of the Church of D. libelled in the Spiritual Court against Bland for Tithes; Bland came to the King's Bench and shown, that within the said Parish of D. there is a Hamlet in which the said Bland inhabited, and the said Inhabitants within the said Hamlet, time out of mind, had had a Chapel of Ease within the said Hamlet, because the said Hamlet was distant from the Church of the said Parish, and with part of their Tithes have found a Clerk to do Divine Service within the said Chapel, and also had paid a certain sum of money to Saer, Prohibition. Prescription. and his Predecessors for all manner of Tithes; and prayed a Prohibition, and had it; and it was holden a good Prescription. LXXVIII. Pasc. 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years and afterwards surrendered the Reversion with the rent to the use of a Stranger, who is admitted accordingly. Attornment. It was moved if there needed any Attornment: It was the opinion of Rhodes and Windham justices, that the Surrender and Admittance ut supra, are in the nature of an Attornment, and so amount to an Attornment, or at least supply the want of it. Mich. 29 Eliz. In the Star-Chamber. LXXIX. The Lady Newman and Shyriffes' Case. THe Lady Newman, Sister of James Wingfield, 3 Leon. 170. lately deceased, exhibited a Bill of Complaint in the Star Chamber, against one sheriff dwelling in Dublin in Ireland, and two others, complaining, That the said sheriff had forged a Deed, purporting that the said James had by that Deed given unto him all his Goods, and also that the said James had by that Deed assigned to the said sheriff a Lease for years of Lands in Ireland, and also the said sheriff had procured the two other Defendants to depose upon their Oaths before the Town-Clerk of London, That the said Deed was Sealed and Delivered by the said James as his Deed. It was moved by the Counsel of the Defendant, that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury, or the procurement thereof, upon which the Lords of the Council there, Upon the Statute of 5 Eliz. of Perjury. referred the consideration of the said Statute to both the Chief justices: who at the next day in Court declared their Opinions upon the said Matters, i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals, which see clearly by the Statute which as to that purpose extends but to Obligations, Bills obligatory, Acquittances, Releases or other Discharges, and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute; and also they were of opinion, that the said Perjury, and the procurement of it was not punishable by the said Statute, because the Oath was taken coram non Judice, for the Town-Clerk of London could not take an Oath in such a case, Note. no more than a private person. But because that the Bill in the perclose and conclusion of it was, (contrary to the Laws and Statutes of this Realm) the two Chief justices were of Opinion, That the said Court might punish these Offences as Misdemeanours at the Common Law, but not according to the Statute; and afterwards sheriff was fined, and by Order of the Court to stand upon the Pillory. Mich. 29 Eliz. In the Exchequer Chamber. LXXX. The Queen and Lord Vauxes Case. Bills. IN the Exchequer Chamber before the Chancellor, etc. the Lord Vaux brought a Writ of Error upon a judgement given against him in the Court of Exchequer, and assigned for Error that a Bill was exhibited against him, that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex, and also had intruded into the Rectory of Ethelborough in the County of Northampton; whereas the Queen ought to have brought several Bills being for several causes, arising within several Counties. But it was resolved by the whole Court, That the Bill of the Queen was good enough, and here is no mischief; for if the Defendant will plead Not Guilty, two several Venire Facias shall be awarded, one into Middlesex, the other into the County of Northampton. Mich. 27 Eliz. In the Common Pleas. LXXXI. Owen and Morgan's Case. GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs; the Conusee rendered the same to the husband and wife, and to the heirs of the body of the husband, (Note that the husband was the Conusor) the remainder in Fee to the now Demandant; and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant, without naming the wife. And afterwards the husband suffered a common Recovery without naming of the wife; Common Recovery. the hushand and wife died without Issue, and now Owen, to whom the remainder was limited by the Fine, brought a Scire Facias; in bar of which the Recovery was pleaded. It was argued by Shuttleworth Sergeant, That the said Recovery had against the husband was a good bar, Feme not party to the Writ of Covenant not bound by a Recovery. and should bar the remainder; and the wife ought not to be named in, or party to the Recovery, for that nothing accrued to her by the Fine, because she was not party to the Writ of Covenant, and to the Conusans, vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant, but every Stranger may take by way of Remainder, Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle, if such a Fine ut supra be taken, it is good as long as it is in force. LXXXII. Sir Richard Lee and arnold's Case. Post 93. SIr Richard Lee Kt. seized of three Manors, made a lease of them to Sir Nicholas Arnold for certain years, reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents, or any of them, or any part, etc. be behind, a reentry into all the Manors; and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee: and afterwards by Deed indented and enrolled, bargained and sold the two other Manors, and for the rent of one of the said Manors, the Vendee did re-enter into all the Manors. Manwood, Here are several reservations, Reservation of Rents upon a joint Lease. several rents, and several leases; for although that the words are joint, yet by construction they are become several; as Land given to an Abbot and a Secular man, although here be joint words, yet they are Tenants in Common, Litt. 296. And if I sell to you two Horses, the one for 5 l. and the other for 5 l. here are two several contracts; the Parties to whom these reversions are assured, ut supra, are Assignees within the Statute of 32 H. 8. by which it is enacted, that Assignees may take advantage of Conditions; for such an Assignee is not merely in by act of law, as the Lord by Escheat, and he is not such an Assignee; but is in by conveyance: The Lessor enters upon his Lessee, Assigns. and makes his Feoffment, and the Lessee reenters, now the Feoffee is an Assignee; and this condition is destroyed in part and continued in part: Condition destroyed in part good in part. If one hath Common in the land of another for 20 beasts, and releases his Common for 10 beasts, the Common for the residue remains; but if he purchaseth part of the land in which he hath Common, the whole Common is destroyed: A Feoffment to two with warranty, and one of them releases the warranty, all the warranty is gone: As to the condition for as much as it is not collateral, but incident to the reversion, it may be severed and is of the same nature as the rent and reversion. A man possessed of lands for 20 years, and seized of other lands in Fee, Conditions divided. leaseth all the land for 10 years, reserving rend, with clause of reentry, and dieth, now the Heir hath a reversion for the land in fee, and the executor for the other land, & so the condition is divided according to the reversion; so if lands were given to one in general tail and others in special tail & he thereof makes a lease rendering rend, and dieth, having several Issues inheritable to each tail, now the condition shall go according to the rent: and he conceived, that the Grantee of parcel of the reversion is an Assignee within the said Statute, Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions. as if a Lease for years be made rendering rend, with clause of reentry. The Lessor grants the Reversion for life, such a Grantee is an Assignee within the said Statute. Jefferies, The Condition is gone: A. leaseth two Acres for years, rendering rend with clause of reentry: the Lessor accepts a surrender of one Acre, the whole Condition is gone, but the rent shall be apportioned. A Parson leaseth land, whereof he is seized in his own right, and land whereof he is seized in the right of his Church, for years rendering rend, with clause of reentry, and dieth, the rent shall go according to his respective capacity and the Condition divided: Condition ap●●●●●●ned. So if part of the land so demised be evicted, the Rent shall be apportioned, and the Condition also: And he said that the Bargainee is not an Assignee within the Statute. Barham, If the Reservation doth not make the lease several, yet it shall make the Reversion several, etc. Mead, 6 Eliz. The Court was moved in this Case: A. leased for years rendering rend, with clause of reentry, and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution; Condition suspended. and the clear Opinion of the Court was, that the Condition was suspended: If A. let lands for years rendering rend, with clause of reentry to a Man and to a Feme sole, and afterwards the Lessor intermarries with the Feme, the Condition is suspended. Mounson justice, The Demise is joint, although that the Reservation be several. Cestuy que use is seized of an Acre in possession, and of another in reversion, and makes a Lease for years of both rendering rend, Severance. here are several rents. 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage; the Tenancy in such case is several, 9 Ass. 24. a lease is made of a Mill. and of a Wood, rendering for the Mill 10 s and for the Wood 20 s. these are several rents: and so here they are several rents and several conditions: Two Tenants in Common make a lease for years rendering rend upon clause of reentry, the condition is several according to the reversion, for joint words in the Letter have sometimes as the matter requires constructions in the severalty. As A and B covenant by Indenture, and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture, the same is to be construed such Covenants, which on the part of A. are to be performed, and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone: a condition by an act in law may be divided but not by the act of the party. Conditions by act in Law divided not by act of the Party. As a man makes a lease for years rendering rend, with clause of reentry, takes a Wife and dyeth; The Wife recovers the third part of the land devised for her Dower, now that third part is discharged of the condition during the estate in Dower, but the residue is subject to the condition; and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part; and the Heir in Borough English for his part: two joint-tenants make a lease for life upon condition and one releaseth the condition, Statute of 32 H. 8. of Conditions taken by Equity. the same barred the condition. And he conceived that the Bargainee is an Assignee: for the Statute of 32 H. 8. shall be taken by Equity, etc. As if a man leaseth lands for years to begin at Michaelmas next, and before Michaelmas he makes a Feoffment, and at Mich. the Lessee enters, the Feoffee is an Assignee within the Statute: two joint-tenants make a lease for years rendering rend with clause of reentry, and the one releaseth to his companion, he is an Assignee within the Statute. Manwood, He is an Assignee and in by the Bargainor; The words of the Statute of 32 H. 8. are, Grantees or Assignees to or by any Person or Persons, and here the Bargainee is an Assignee to the Bargainor as to the use; and for the possession he is an Assignee by him: He who is in by a common recovery is not an Assignee, although the recovery was to his use, for the Writ disaffirms his possession: if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor, and the Tenant for life reenters, the Disseisor is now an Assignee, but otherwise it is if he in the reversion doth release to the Disseisor: and he conceived, that the Lessor should recover part of the land in an action of Waste, or enter in part of the land for a forfeiture, for an alienation in fee, that the condition remains. Harper, Several reservations do not make several leases, for the reservation is not of the essence of the lease, for it is good without any reservation: and whereas it hath been said, that a Lease is a contract, I say, Difference between a Reservation and a Contract. that there is a great diversity between a reservation and a contract: for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession; yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rend, and afterwards enter into parcel of the land demised, I shall not have the rent: and if I lease two Acres for years with several reservations, I shall have but one action of waste, but several Avowries according to the several reservations. And here if any part of any of the said rents be behind, the party may re-enter into the whole, therefore the lease is but una & eadem. And I conceive, that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree, as a warranty to one of his Heirs and Assigns, extendeth to the twentieth Assignee. But here in our case, he is not such an Assignee that shall take advantage, etc. for he is in by the Statute, scil. in the Post, but not in the Per, and here the Bargainee hath but an use by the act of the Party, and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee, yet he is an Assignee but of part, and therefore shall not have advantage, Condition suspended in part is suspended in all. etc. When a condition is suspended in part, it is suspended in all. A. leaseth lands for years upon condition, and afterwards the lessor confirms his Estate in part for life, the condition is gone. Dyer, The Lease is one and entire, although there be several reservations, for here are not several capacities, nor several interests. 42 Ass. Two joyntenants lease for life, rendering rend to one of them, yet the rent and reversion shall be to both of them; but if it be by Deed indented, the rent shall go to one only, according to the literal reservation, Vide Litt. 80. 346. But if the Lease had been made by several Limitations, as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several; but here the rent shall not rule the reversion, but the reversion the rent, and the rent shall be of the same nature as the reversion. Tenant for life makes a Feoffment in Fee upon condition, and reenters for the condition broken, now by that reentry the Freehold is reduced to the Lessee for life, and the Fee unto the Lessor; but the Forfeiture remains. Two joint-tenants, one of them makes a Feoffment in Fee of his Moiety upon condition, and for the breach of the condition reenters, the joint Estate is revived: And he conceived that the Grantee of part of the Estate, or part of the Land should not take advantage of the condition; and he said that the Bargainor is an Assignee within the Statute: If Tenant in Tail makes a Lease for years, and afterwards bargains and sells the reversion, the Vendee hath a Fee simple determinable, and may enter for the condition broken: If a reversion be granted to two, and to the Heirs of one of them, they are Assignees within the Statute, and if he, who hath but an estate for life, surviveth, he also is an Assignee, for the entire reversion passeth out of the Grantor, and that is my Rule. judgement was given against the Reentry. LXXXIII. Pasc. 30 Eliz. In the King's Bench. Surrender. LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case, that the same was not any present Surrender of the first term; but if J. S. die within the term, than it is a Surrender, for it may be that J. S. shall survive the first term. Pasc. 30 Eliz. In the King's Bench. LXXXIV. Anderson and Heywoods' Case. Copyholder. A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold. It was holden that he hath not gained any Estate, so as he may make a lease for years, upon which the Lessee may maintain Ejectione firmae; but he hath but a possession against all Strangers: And it was holden in this case, that if a Copyholder dyeth, 1 Leon. 100 Rumny and Eves. his heir within age, he is not bound to come to any Court during his Nonage, to pray admittance, or to tender his Fine; also if the death of his Ancestor be not presented, nor proclamations made, he is not at any mischief, although he be at full age. Pasc. 30 Eliz. In the King's Bench. LXXXV. Cook and Songates Case. IN Assumpsit, Assumpsit. the Plaintiff declared whereas Lis & controversia had been moved between the Plaintiff Lord of the Manor, etc. and the Defendant, claiming certain Lands parcel of the said Manor, to hold the same by Copy, etc. And both the said parties submitted themselves to the judgement and Arbitrement of Mr. Godfrey, a man learned in the Law. concerning the said Land, and the title of the Defendant to the same: The Defendant in consideration that the Plaintiff promised to the Defendant, that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant, that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation, the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant, that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shown further that the said Mr. Godfrey did award the said Copy utterly to be insufficient, etc. Yet the Defendant continued the possession of the said Land: It was moved that the same was not a good and sufficient consideration to ground an Assumpsit. But Gaudy justice, said it was a good and sufficient consideration, because it was to avoid Controversies and Suits: And afterwards judgement was given for the Plaintiff. Trin. 26 Eliz. In the King's Bench, LXXXVI. Tailor's Case. IN Assumpsit, the Case was: Assumpsit. That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich, in the County of Kent, to London; and the Apples being in the Boat, the Boat in which they were, by a great and violent Tempest was sunk in the River of Thames, so as the said Apples perished, etc. It was holden to be no Plea in discharge of the Assumpsit, by which the Plaintiff had subjected himself to all adventures. LXXXVII. Trin. 26 Eliz. In the King's Bench. Devise. A. Seized of Lands in Fee, and having Issue two Sons, Richard and Gilbert, by his Will willed, That if his Son Richard die before Issue, so that the Land descend to my Son Gilbert, than I will that my Overseers shall have the Government of my Lands and of my Son Gilbert. Richard took a wife and died, she being young with Child with a Daughter, the Devisor died, the Daughter was born. It was adjudged in this Case, that by this Devise the Daughter was excluded from the Inheritance, and that Gilbert should have the Land. Trin. 32 Eliz. In the King's Bench. LXXXVIII. Luke's Case. LUke Esq of Tedcaster, was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Usurious Contract; for which he encurred a Praemunire. Who pleaded Not Guilty, upon which they were at Issue, and at the day of the Return of the Distringas, the jurors appeared, and the same day that the jury was to be taken, Popham Attorney General sent for the Distringas, and for certain causes for the Queen, would not proceed. Note that the Attorney was informed, that the jury was partial. It was moved by Cook that the Attorney could not stay the Proceed, the Writ being returned, and the jury appearing, he could not stay the Trial, for no Precedent is thereof. Popham, The Entry shall be in this case. Vicecomes non misit breve. Cook, That is false, and the Sheriff is sworn to make a true return; but by consent of the Parties, such a thing may be done, for Consensus tollit Errorem, Quaere. 33 Eliz. In the Exchequer. LXXXIX. The Queen and Painter's Case. Account of the King against a Stranger. SIr William Pelham was Surveyor of the Ordnance, and delivered the money of the King to Painter, Clerk of the Ordnance. It was holden in this case, That for the said money the Queen might have Account against Painter, although he wanted a privity, which cannot be so in case of a common person; for if any Receiver make one his Deputy, I shall not have an Account against him. Popham Attorney General, If one of the Exchequer lend unto another 500 l. of the Queen's money, and takes a Bond for it in his own name, yet the Queen shall have an Account against the Borrower. Mich. 29 Eliz. In the Exchequer. XC. pelham's Case. IN the Exchequer Chamber, before the Chancellor, Treasurer, Savile Rep 43. Grant of Office of Sheriff. and Barons there, in the Case of Pelham, the Case was, That the Queen had granted by her Letters Patents, that Pelham should not be Bailiff, Constable, nor other Officer or Minister, Licet eligatur; yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal, as Grants of Amercements do not extend to Amercements Royal; and also the Office of Sheriff doth not lie in Election; but if the words had been, Licet eligatur per nos, than it should have been otherwise: And such was the Opinion of Bromley then Lord Chancellor. Trin. 19 Eliz. In the King's Bench, XCI. Godbolts Case. IN the Case of one Godbolt, It was agreed, Sales▪ that the sale of a Bailywick of a Hundred, was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of justice; nor is it an Office of Trust. XCII. In Temps Eliz. A. Granted to B. a Rent-charge out of his Lands, to begin when J. S. died without Issue of his Body, J. S. dies having Issue, which Issue dies without Issue. Dyer held that the Grant shall not take effect, for J. S. at the time of his death had Issue, and therefore from thence the Grant shall not begin, and if not then, than not at all. And Manwood said, that if the words had been, to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue, etc. If Donee in Tail hath Issue which dies without Issue, the Formedon in the Reverter shall suppose that the Donee himself died without Issue, for there is an Interest, Difference between an Interest and a Limitation. and there is a diversity between an Interest and a Limitation; for if I give Land between A. and B. for term of their lives, if any of them die, the Survivor shall hold the whole; but if I give Lands to A. for the lives of B. and C. now if B. and C die, the whole Estate is determined, because it is but a Limitation, and B. and C. have not any Interest. Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9 XCIII. Temps Roign Eliz. In the Common Pleas. A. Seized of a Manor, leased the same for years, rendering rend, with clause of reentry; and afterwards levied a Fine Sur Conusans de droit, etc. to the use of himself and his Heirs the rent being demanded is behind. Dyer, A. cannot re-enter, for although the rent in right passeth without Attornment, yet he is without remedy for the same without Attornment, and it would be hard without Attornment to re-enter; It was here moved further, if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood, The reversion of a Termor is granted by Fine, there wants Privity for an Action of Debt, Waste and Re entries: But if the Conusee dieth without Heir, although that in right it was in the Conusee, yet the Lord by Escheat shall make Avowry, and yet the Conusee by whom he claims could not: And in the Case at Bar, the Conusee himself could not; but the Conusor being Cestuy que use, who is in by Act of Law, shall Avow, and re-enter without Attornment, for the Conusor is in by the Statute of 20 H. 8. Harper, The Heir of the Conusee shall Avow and re-enter before Attornment. Dyer, 13 H. 4. The Father leaseth for years rendering rend, with clause of reentry, the Father demands the rent which is not paid, the Father dyeth, the Son cannot re-enter, for the rent doth not belong unto him; and therefore in the Case at Bar, the Conusor cannot Avow for the rent before Attornment, therefore not re-enter: And in Case of Bargain and Sale, the Bargainee is Assignee within the Statute, but not the Conusor in this Case. Temps Roign Eliz. XCIV. 15 Eliz. Sir Francis Leak and Sir Walter Hollis. Upon Attainder of Treason, who shall seize the Goods for the Queen. AT the Assizes, the Opinion of Dyer and Stamford was demanded upon this matter: One seized of Lands and Tenements, and possessed of Goods within the Duchy of Lancaster, was Attainted of High Treason, and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy, and Sir Walter Hollis Sheriff, which of them ought to seize for the Queen; and their Opinion then was, that the same did appertain to the Office of the Sheriff, if in the Patent of the Sheriff there were not special words to the contrary. XCV. 15 Eliz. In the Common Pleas. TEnant at Will made a Lease from year to year, Lease by Tenant at Will if a Disseisin. Dyer conceived that it was not a Disseisin but the Lease was void; and he said, that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land, whereof the disseisin is done. Harper conceived that the said Book of 12 E 4. 12. was good Law, for a Lease at Will is a Lease at the will of both parties, and therefore when the Lessee makes a Lease for years, his will is determined, and he will not hold at will. Manwood agreed with Dyer; for if Tenant at Will lease for years, rendering rend, before that the Lessee for years entereth, the Tenant at Will shall not have any rent for it was not a perfect contract; otherwise it is where a man seized of Lands leaseth the same, ut supra. If one entereth into my land, and occupieth the same of his own head, claiming to hold the same at my will, and afterwards I demand of him a certain rent for the occupation of my land, he is now my Tenant at Will; which all the justices granted. Mich. 30 Eliz. In the King's Bench. XCVI. Cutter and Dixwels' Case. ACtion upon the Case, for that the Defendant exhibited a Bill to the justices of Peace against the Plaintiff, containing and complaining, That the Plaintiff is an enemy to all quietness, seeking by all means to disquiet his neighbours, and hath used himself as a lawless person, and having Process to serve upon one in the Parish, (scil. J. S.) did keep the Process, and would not serve it but on the Sunday in the time of divine Service, not having regard to her Majesty's laws or the quiet of his neighbours. Upon which Bill the justices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour, by virtue of which he was taken and imprisoned. It was the Opinion of all the justices in this Case, that upon this Matter, an Action upon the Case would not lie. Mich. 27 Eliz. In the King's Bench. XCVII. Baspoles' Case. THe Father seized of Lands is bound in an Obligation, 3 Leon. 118. 2 Leon. 10 1. Styles 148 Devise to his Son and Heir. and devised his Land to his Wife until his Son shall come to the age of 21 years, the remainder to the Son in Fee; and no other Land descends to the Son from his Father. It was moved, that the Heir in this case at his Election might wave the Devise, and take by descent, or è contra, Vide 9 E. 4. 18. per Needham. It was the Opinion of Gawdy and Fenner justices, that the Son should be adjudged in by descent: Clench held the contrary. Mich. 27 Eliz. In the King's Bench. XCVIII. Onion's Case. IN an Action upon the Statute of 5 Eliz. for hunting in his Park, the Statute gives triple damages: It was the Opinion of the justices, that notwithstanding that the Statute gives triple damages, Costs. that the Plaintiff should have Costs also. XCIX. Mich. 27 Eliz. In the King's Bench. IN Debt the Plaintiff had judgement to recover, and a Scire Facias issued against the Bail before any Capias issued against the Principal, Bail. and the Bail was taken; and now they came and shown this matter to the Court, and prayed to be discharged. Wray justice said, They shall be put to their writ of Error, for being but Error in Process, we may reverse our own judgement. C. Mich. 14 Eliz In the Common Pleas. A Man seized of a Pasture, within which are two great Groves and Wood, known by the name of a Wood, leased the same by Indenture for years, and also in the same Pasture were certain Hedgrows and Trees there growing sparsim, & by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods' in and upon the Premises; and further, that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term. Harper said the Hedg-rows did not pass by these words, for they are not known by the name of Woods, 14 H. 8. 2. Manwood held the contrary. Mounson contrary to Manwood for the words of the Grant may be supplied by other in it, viz. Woods. Dyer held that these Hedgrows should pass, for the Grant is general. It was further moved, if by these words the Lessee might again cut them etc. or but once. Harper, Manwood and Mounson, three of the justices held. That he might cut them but once. But Dyer held the contrary & said so it should be, if the words had been (growing upon the Premises) and this word (growing) although it sounds in the present tense yet it shall be taken also in the future tense: if not that the word tunc be laid, for that is a word of restraint. The case which was argued in the Chancery, 27 H. 8. where I was present, was this, The Prior of St. John's let a Commandry; Provided that if the said Prior, or any of his Brethren there being Commanders, will dwell thereupon, than the said Lease to be void. And it was doubted if that Proviso did extend to the Successor; for this word (being) in the present tense, and yet it was holden by Fitzherbert, that it should be taken in the future tense, and so to extend to the Successor, but otherwise if the words had been (nunc) being. 15 Eliz. In the Common Pleas. CI. Coney's Case. A Man seized of Lands in Fee devised, Devises. that his wife should take the profits of his Lands, until Mary his daughter and Heir should come to the age of sixteen years; and if the said Mary died, that J.S. should be his Heir. Manwood said, Tail. That the daughter, after she had attained the age of sixteen years, should have the Lands in Tail, for Devises shall be construed, according to the interest of the Devisor; if they have any certainty or reason; but no intent shall be taken against reason and certainty. It is certain the daughter shall not have Fee-simple, for that should have descended to her without any Devise; and these words (if she die) cannot be intended a condition, for it is certain that she shall die; but if the words had been, If she die before the age of sixteen years, J. S. should be his Heir, that had been a condition; and if the words had been, That after the death of Mary, J. S. should be his Heir: So as the Estate Tail remains in the daughter. Mounson and Harper contrary. And that she shall have but for life; Mounson said, That if Mary had been a Stranger to the Devisor, she had taken nothing: Devisee, who shall first take. And this case was put by Barham Sergeant, A man devised 100 l. to his youngest daughter, and 100 l. to his middle daughter, and 100 l. to his eldest daughter, and that all these sums should be levied of the Profits of his Lands, It was holden by the better Opinion, that the youngest daughter should be first paid, and then the middle, and then the eldest daughter, etc. and that he said was Coneys Case. CII. 6 Eliz. In the Common Pleas. A Man made a Lease for life, and afterwards made a Lease to another for years to begin after the death of the Tenant for life: the Lessee for years died intestate, the Ordinary committed Letters of Administration to A. the Tenant for life and A. joined in the Purchase of the Fee-simple of the Land demised; It was holden by the justices in this Case, that the Fee was executed for one Moiety, for the remainder for years, Estate executed. was not any impediment to the execution of it. Manwood conceived that the Term was not extinct, for the same is not properly a term, Extinguishment. but only an Interest of a Term, which cannot be surrendered. Mounson, He hath the Term in altar droit as Administrator, and therefore it cannot be extinct. Dyer, If an Executor hath a Term, and purchaseth the Fee-simple, the Term is determined. A woman Termor for years takes Husband, who purchaseth the Fee, the Term is extinct by Manwood, for the Husband hath done an act, which destroys the Term, scil. the Purchase. But if a woman being a Termor, marrieth with him in the Remainder, the Term continueth; for here it is not the act of the Husband, but the act of Law. It was the Opinion of Dyer, Tenants in Common. that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee. CIII. Mich. 17 Eliz. In the Common Pleas. THe husband is seized in right of his wife of certain customary lands in Fee, and he and his wife, by licence of the Lord make a Lease for years by Indenture, rendering rend, have Issue two daughters, and the husband dyeth the wife takes another husband, and they have Issue a son and a daughter, the husband and wife die, the son is admitted to the Reversion, and dyeth without Issue; and by Manwood, that Reversion shall descend to all the daughters, notwithstanding the half blood, for the Estate for years which is made by Indenture by licence of the Lord is a demise, and a Lease according to the order of the Common Law, and according to the nature of the demise the Possession shall be adjudged, which possession cannot be said possession of the Copyholder, for his possession is customary, and the other is mere contrary, therefore the possession of the one shall not be the possession of the other, therefore there shall be no Possessio Fratris in this case: Possesso Fratris. But if one had been the Guardian by custom, or the Lease had been made by Surrender, there the Sister of the half blood should not inherit. And Mead said the Case of the Guardian had been adjudged. Mounson agreed: And it was said, that if a Copyhold doth descend to the Son, he is not a Copyholder before admittance, but he may take the profits, and punish a Trespass before admittance. CIV. Pasc. 19 Eliz. In the Common Pleas. A Parson let his Rectory for three years, and covenanted, that the Lessee shall have and enjoy it during the said term, without expulsion, or any thing done or to be done by the Lessor, and is also bound in an Obligation to the Lessee to perform the said Covenant. Forfeiture. Quaere. Afterwards for not reading of the Articles he was deprived ipso facto, by the Statute of 13 Eliz. The Patron presented another, who being inducted ousted the Lessee; wherefore an Action was brought upon the Obligation. It was the Opinion of all the justices, That this matter is not any cause of Action; for the Lessee was not ousted by any Act done by the Lessor, but rather for Non feasans; and so out of the compass of the Covenant aforesaid; as if a man be bound that he shall not do any waste, permissive waste is not within the danger of it. Pasc. 26 Eliz. In the Common Pleas. CV. King and Cottons Case. IN Ejectione firmae, the Case was: Lessee for years, the Remainder for life, the Remainder in Tail to Lessee for years, Lessee for years made a Feoffment in Fee with warranty, and died, he in the Remainder for life died, the Issue in Tail entered, and made a Lease to the Plaintiff. It was clearly resolved by the Court in this Case, Entre Congeable. That the entry of the Issue in Tail was lawful, notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty, scil. to the Estate for life, Vide 50 E. 3. 12▪ & 13, 46 E. 3. 6. Fitz. Garr. 28. Pasc. 26 Eliz. In the Common Pleas. CVI Scot and Scots Case. BArtholomew Scot brought a Writ of Account against Thomas Scot: Account. Thomas Scot sum' fuit ad respondend. Barth. Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum, etc. And declared quod cum the said Thomas Scot fuit receptor denariorum, etc. & recepisset, so much by the hands of such a one, etc. Cumque idem Thomas habuisset & recepi●●et diversa bona. and shown what, add merchandizand. etc. Exception was taken to the Declaration, because the Writ and Declaration is general against the Defendant as Receiver, whereas for such goods as the Defendant had received ad merchandizand. he ought to have been charged as Bailiff, Quod Curia concessit, Vide Book Entries 19 46 E. 3. 9 and afterwards the Defendant traversed severally both the Charges, whereupon several Issues were joined, and both found for the Plaintiff: And as to the moneys, with the Receipt of which he was charged as Receiver, the Plaintiff had judgement; and as to the others, Abatement of Writ. which he received ad Merchandizandum, the Writ abated. And it was said by the Court, That the Writ should have abated in the whole, unless the several Issues had helped the matter, because the Plaintiff might have had an Action for part in other manner, Vide 9 H. 7. 4. by Brian. 17 Eliz. In the Star-Chamber. CVII. Morgan and Coxes Case. MOrgan exhibited a Bill of Perjury in the Star-Chamber, against one Cox, setting forth, that whereas he was bound to his good behaviour by Recognizance acknowledged in the King's bench, and he in discharge of the said Recognizance had obtained a Writ De Fama & gestu, to inquire of his Conversation, and therefore at the Sessions in the County of Devon, where the said Morgan was dwelling, the grand jury charged with the said Matter, the said Cox gave Evidence to the said grand jury in maintenance and continuance of the said Recognizance, and upon the Evidence given by Cox the said Bill was conceived. It was moved by the Counsel of the Defendant, That that Bill upon the matter did not lie, for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance, and that to the grand jury which was charged for the Queen: But as to that it was said, by the Lord Chancellor and both the Chief justices, that the Writ De fama & gestu, Brief de Fama & gestu. is an especial Writ at the Suit of the Party, and not of the Queen, and the Court cannot deny it to him who asketh it; and the grand jury, as to that matter, shall be accounted a special jury, etc. Mich. 16 Eliz In the Common Pleas. CVIII. Jackson and Darcys Case. Tail barred by a Fine. 3 Leon. 57 IN a Writ of Partition betwixt Jackson and Darcy, the Case was, Tenant in Tail, the Remainder to the King, levied a Fine, had Issue and died, it was adjudged that the Issue was barred, and yet the Remainder to the Queen was not discontinued; for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail, passed to the Conusee. Trin. 17 Eliz. In the Common Pleas. CIX. Stroads Case. Tenors. IN a Replevin, the Case was, Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries. The King granted the Lands over unto another: it was holden in this Case that the Patentee should hold of the King according to his Patent, and not of the ancient Lord; but the Patentee should pay the rent, by which the said Land was before holden, as a Rent-seck distrainable of Common right to the Lord and his Heirs, of whom the Land was before holden. CX. Mich. 19 Eliz. In the Common Pleas. A. Seized of Lands in Fee devised them to his Wife for life, and after her decease, Estate. she to give the same to whom she will: He had Issue two daughters, and died; Devises. Leon. 121● the wife granted the Reversion to a Stranger and committed waste, and the two daughters brought an Action of waste. In this Case it was holden, that by that Devise the wife had but an Estate for life, but she had also an authority of giving the Reversion by her Will to whom she pleased; and such a Grantee shall be in by A. and his Will; for A. hath given expressly to his wife for life, and therefore by Implication she shall not have any further Estate: But if an express Estate had not been appointed to the wife; by the other words an Estate in Fee should have passed. Mich. 19 Eliz. In the Common Pleas. CXI. Sir Thomas Kemp and Windsor's Case. SIr Thomas Kemp was outlawed at the Suit of one Windsor, who had against him four Capias utlagat', and none of them were served, and afterwards he sued out a fifth Capias: It was moved by Mead, that the said Sir Thomas keepeth open House, and yet the Sheriff had not served the Capias. Dyer, The Sheriff may justify to break the House to take his body, and seize his Goods for the Queen, for this Process is in Law at the Suit of the Queen; but contrary where the Process is sued at the Suit of a Subject: And the justices commanded Ford Prothonotary to make a special Capias for Body and Goods; and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly. CXII. Mich. 19 Eliz. In the Common Pleas. THis Case was moved by Anderson Sergeant at Law, Improvement of Common. if in case of Common appurtenant by Prescription without number, the Lord of the waste might improve, for it is not admeasurable, therefore not improveable, for the Common being without number, the sufficiency cannot be proved. Dyer and Manwood justices, although it be without number, yet it may be reduced to a certainty being by Prescription; as the number of the , and the best and most substantial Tenant of the said Tenement at any time within time of memory had kept upon the said waste, and then the Plaintiff the Lord might improve leaving sufficient, according to such Rate. Mich. 19 Eliz. In the Common Pleas. CXIII. The Earl of Derbys Case. Debt not against the Husband upon a Contract by the Wife. DEbt by a Merchant of London against the Earl of Derby and his Wife, and declared upon a Contract for Silks, and it appeared upon the Evidence, that the Countess during the Coverture had bought of the Plaintiff certain Silks for her own wearing; and for the money, which the Countess agreed to pay for the same, the Action was brought. It was the Opinion of Dyer, Manwood, and Mounion, that the contract by the Wife, during the Coverture, should not bind the Husband; but admit that the Husband should be bound yet this Action is not well brought against the Wife, for she ought not to be mentioned in the Writ. CXIV. Mich. 19 Eliz. In the King's Bench. Indictments. ONe was indicted in the Country, because he commanded J.S. to take up a Bridge, being in Regia via, leading from such a Town to such a Town; and also the said J. S. was indicted for executing the command of the other: Exception was taken to the first Indictment, because no place of the commandment is alleged in the Indictment, and for that cause the Indictment was taken insufficient, although Mr. Plowden strongly insisted upon the contrary, as in Trespass the Defendant justifies by the commandment of J. S. the same is good without any place of the commandment, for in the first Case the commandment is traversable, but contrary put by Mr. Plowden, Vide 3 H. 7. 11. Markenfields' Case. Another Exception was taken to the Indictment, because it is not there alleged, that the Bridge was a common Bridge, but because there was other words in the Indictment which supplied the same, scil. in via Regia, the Indictment was holden good enough. CXV. 19 Eliz. In the Common Pleas. IN a writ of Partition between Tenants in common upon the Statute, of 20 Acres of Land; the Defendant as to part, scil. 10 Acres, pleaded Non tenet pro indiviso, and as to the residue confessed the Partition; and by Manwood, and Ford chief Prothonotary, the confession ought to be in the beginning of the Plea, and Non tenet pro indiviso, in the second place last, so as that part of the Plea which agrees with the Demand, aught to preceded the part which denies demand: And the truth of the Case was, that the Defendant had but 10 Acres in all, and of them was sole seized. Manwood, If your Case be such you may safely plead to the whole Non tenet pro indiviso. 20 Eliz. In the Common Pleas. CXVI. Duffams' Case. A Man made a Lease by Deed indented for 20 years to begin after the expiration of a former Lease thereof made to one Duffam, in an Action brought by the second Lessee against the Lessor; the Lessor said there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam. It was said that such a Plea did not lie for the Lessor, Estoppel. for he is estopped to say against the Indenture, that no such Duffam was, etc. And also, if no such person was, than the first Lease was void, and the second Lease should begin presently, which Mounson and Manwood concesserunt And Manwood said that the Defendant should be estopped by the recital of the first Lease, to say that no such Duffam was; and although that the common ground is, that a recital is not any estoppel, yet where the recital is not material, as it is here. for the second Lease is to be begun upon the expiration of the Lease recited, there is an estoppel. Recital. Trin. 29 Eliz. In the Common Pleas. CXVII. Brown and Fulsbyes' Case. UPon the Statute of 5 Eliz. of Usury, the Case was this, Stat. 5 Eliz. of Usury. A. borrowed of B. 80 l. and was bound in an Obligation to pay to him. 90 l. at the end of the year: It was the Opinion of the justices, that although the 90 l. was tendered, and B. the Lender did tell the same, yet if he take and except but of 80 l. it is not Usury within the Statute to make a triple forfeiture; but yet in that Case the Obligation itself is void. CXVIII. Trin. 29 Eliz. In the Exchequer. NOte in the Case of the Tenants of Owning and Northmaston. It was holden by Manwood Chief Baron, That he who hath vesturam terrae cannot dig the Land. And Gent Baron said, where many have Lot-Meadow to be divided, every year by lot, who shall have the Grass of such an Acre, and who of such an Acre, etc. and so change every year according to Lots, they have not any Freehold therein, but only Vesturam terrae. Trin. 32 Eliz. In the Exchequer. CXIX. Sir Walter waller's Case. 3 Leon. 259. Execution. a Leon. 77. IN the Case of Sir Walter Waller, it was moved, if one hath judgement in Debt, and thereupon within the year and day sueth a Capias ad satisfaciend. although he doth not prosecute the same in two or three years, yet when he pleaseth he may proceed upon it, and shall not be put to a Scire facias, and of that Opinion was Philip's. Manwood Chief Baron, I agree that if one hath sued a Writ of Execution, and the same be continued two or three years by Vicecomes non misit breve, yet the Plaintiff may proceed upon it, Discontinuance of Suit. and shall not be put to a Scire facias. But if such Writ be sued forth, but not continued, but discontinued for a year and a day, he shall be put to a Scire facias, for it is the negligence of the Plaintiff not to continue it, which within the year and day he might do without Order of the Court; but not after the year by any Order of the Court. 32 Eliz. In the Exchequer Chamber. CXX. Russel and Prats Case. RUssel as Executor of Russel brought an action upon the Case against Prat and his Wife, of Trover and Conversion of Goods and 700 l. in money, and declared that the Testator was possessed of these Goods, 6 Feb. 1 Eliz. at which day they came to the hands of the Defendant dum ipsa sola fuit, and converted them, etc. and Licer the Wife dum sola fuit was required and the said Prat and she after their marriage, to deliver them, yet they not only refused so to do, but knowing the said Goods and Money de jure to belong to the Testator in his life, and to his Executors after his death machinantes ●psum inde call●de decipere & defraudare, the said Wife dum ipsa sola fuit converted them to her use the said 6 day of February. And Error was assigned in the Declaration, because it is not alleged there, whether the said conversion was in the Life of the Testator, or after his death, for that aught to be showed certainly; for if it was in the life of the Testator, than it was not punishable by the Common Law or Statute Law, and the conversion is the principal point of the action. This action is personal & moritur cum persona; for it is grounded upon a personal wrong, and ariseth upon a deceit and wrong, and if there was no conversion, than an Action of Detinue should lie 7 E. 3. Replevin by Executors of Goods taken in the time of the Testator, Fitz. Exec. 106. And it was said that this Action here doth not lie upon the Statute of 4 E. 3. which gives to Executors an Action of Trespass De bonis asportatis in vita Testatoris, for the said Statute gives remedy in Cases, where there was no remedy before, but here the Plaintiff might have Detinue. And in our Case it appeareth not whether the Conversion was in the life of the Testator, or after his death, therefore for the incertainty it is not good. Also here is a repugnance in the Declaration, scil. Sciences the said Goods de jure pertinere to the Testator, in his life, and after his death to his Executors, & machinantes ipsum inde decipere & defraudare, the said wife dum ipsa sola fuit, converted them to her use, which cannot be, etc. Popham Attorney General contrary. And he agreed, that the Executor should not have an account against one who was accountable to the Testator, because the privity was gone. But it hath been granted on the other side, that here upon the matter Detinue lieth, and if, etc. then also this Action lieth, for this is the nature of it. If the Testator lends a Horse to a special purpose, scil. to ride to such a place, and the party rideth further, and the Testator dyeth, the Executor may have Detinue, or this Action, be the Conversion in the life, or after the death of the Testator; and yet the damages recovered, for the Goods converted shall be Assets. Two joint-tenants possessed of Goods, lose them and they come to A. by Trover, who converts them to his use, be it in life, or after the death of one of them, is all one. Anderson, The Conversion may be well intended after the death; and as to the Exception for the Repugnancy, it was said by the justices, that the words ●ciente●, etc. are but surplusage, and not traversable. Cook. If I deliver Goods to a Carrier, being in a Chest, and he breaks it and takes them out, in that Case Trespass lieth vi & armis, notwithstanding the delivery. Anderson, praedicta tamen; i. e. Non obstante, that the Testator was dead, did not redeliver them, etc. which proves that the Testator was dead: Periam, praedicta tamen, refers to the Non deli●eravit, not to the Conversion. Cook, I find your Goods and use them, the same is a Conversion: and in the Case of Knight against Vinchcomb, it was holden that a Conversion is traversable, therefore it ought to be certainly alleged: and in our Case the Executor might have detinue or Trespass for the personal wrong; where the thing itself certain is to be recovered, there the Executor is sure to have an Action, as Detinue, Replevin, etc. but where damages only, or things uncertain, there the Executors shall not have Action; and that difference was in a manner agreed by all. Anderson, Where it is said, That upon the Assumpsit of the Testator, the Executor shall have an Action upon the Case, the reason is, because the duty upon the Assumpsit is certain: and the Statute of 4 E. 3. shall not be taken by Equity; for by the said Statute, the Executor of an Executor shall not have an Action before the Statute of 25 E. 3. Also there is not any wrong, for than moritur cum Persona: If one finds my Goods, and denies the having of them, the same is not Trespass. Periam, This Case is not within the Statute of 4 E. 3. for the Statute is to be intended, where Goods are taken vi & armis, and if it be at all within the Statute, it must be within the Equity of it. Manwood, Where one takes my Horse and dies, I shall not charge his Executor, and that is our Case. At another day some held, That the Action did not lie against Executors, therefore not for Executors: And Executors of Executors shall not be charged with a Devastavit made by the first Executors. Manwood, The Executor of the Gaoler shall not be charged in an Escape. Anderson, It is not within the Equity of the Statute of 4 E. 3. Cook. A Smith pricks my Horse, my Executors shall not have an Action for it. Anderson, If one takes my Goods, I shall have Detinue for it, therefore this Action. Cook, If one take my Goods he is a Trespasser, and I shall have Detinue, for that affirms a property. Manwood, If my Goods be taken from me, I cannot give them to a stranger, but if my Goods come to another by Trover, I may give them over to another. CXXI. Trin. 32 Eliz. In the Exchequer. Attaint. IT was holden by all the Barons, That where the Queen is sole Party against the Subject, and the jury find for the Queen, no Attaint lieth; contrary where the Suit is Tam pro Domina Regina, quam pro seipso. CXXII. Trin. 32 Eliz. In the Exchequer. Debt: IF Rent-corn be reserved upon a Lease for years, and it is behind for two or three years, the Lessor may have Debt for the Corn, and shall declare of so much Corn, and it shall be in the Detinet, but yet he shall not have judgement to have Corn, but so much money as the Corn was worth, every several year being accounted. Clark Baron doubted if he shall recover the price of the Corn, as it was at the time when it was payable, or it was at the time of the Action brought. Manwood, The Law is clear, that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease. Clark said, A is bound to pay and deliver to the Obligee 10 Bushels of Wheat, and no place is appointed where the payment shall be made, the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of money, for that the importableness therefore shall excuse him, which Manwood granted. CXXIII. Trin. 27 Eliz. In the Exchequer. NOte, It was holden by the Barons, Fine for Alienation without Licence. that for Fines for Alienation without licence, not only the Land aliened, but the other Lands of the Alienor shall be chargeable. Mich. 30 Eliz. In the Exchequer. CXXIV. Prowses Case. IT was holden in the Case of one Prowse by Egerton Solicitor, Tithes. upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate, and also Land within the same Parish, etc. and so paid no Tithes, because he could not pay them to himself, and for no other cause was discharged; and after the Dissolution, the Rectory is granted to one, and the Land to another, that in such Case the King nor his Patentees should not be discharged of Tithes, for the Lands were not discharged in Right; but if the Lands in the hands of the Abbot were discharged in Right, as by composition or lawful means, there the King and his Patentee should be discharged from payment of Tithes. And it was said by Burliegh Lord Treasurer, that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmers or Lessees, if the Abbot made a Lease, and the Lessee paid Tithes, as he ought; and after the Reversion cometh to the King, the Lessee should pay Tithes during his Lease, but after the Lease determined, the King and his Patentee should not pay, but should be discharged by the said Statute; and said, the like matter was in the Chancery. Trin. 30 Eliz. The Abbot of Tewksbury having the Rectory impropriate of Tewksbury, 11 H. 7. purchased Lands within the said Parish to him and his Successors, Unity no discharge of Tithes. after the dissolution the King granted to G. the Rectory, and to W. the Lands; and if W. should pay Tithes, was referred to Manwood and Periam, who gave their Resolution, that Tithes were payable. Trin. 30 Eliz. In the King's Bench. CXXV. Ropers Case. ROper was rob by Smith, and within a week after the Robbery, he preferred an Indictment against him, and within a month after the Robbery, he sued an Appeal against Smith, and prosecuted it until he was outlawed, and thereupon Cook moved to have Restitution, and they of the Crown Office, said that the Fresh-suit was not enquired, for upon an Appeal one shall not have Restitution without Fresh-suit. Restitution. Cook, The Books are, if the Defendant in the Appeal of Robbery be attainted by Verdict, Fresh Suit. the Fresh-suit shall be enquired of: But here he was attainted by Outlary, and not by Verdict, and so the Fresh-suit could not be enquired of; and here the Indictment is within a week, and the Appeal within a month after the Robbery, is a Fresh-suit. Wray Chief justice, In our Law he is to pursue the Felon from Town to Town; but the suing of the Appeal is no Fresh-suit, vide 21 F. 4.16. Restitution grounded upon Outlawry, and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony, and so is 2 R. 3. 13. Trin. 30 Eliz. In the King's Bench. CXXVI Piers and Leversuches Case. IN Ejectione firmae by Piers against Leversuch. It was found by Verdict that one Robert Leversuch, Grandfather of the Defendant, was Tenant in Tail of the Land whereof, etc. and made Lease for years to Purn, who assigned it over to Piers the Plaintiffs Father. Robert Leversuch died, W. his Son entered upon Piers, who reentered; W. demised the Lands without other words to P. for life, the remainder to Joan his wife for life, the remainder to the Son of P. for life, with warranty, and made a Letter of Attorney to re-enter and deliver seisin accordingly. P. died before that the Livery was executed, and afterwards the Attorney made Livery to Joan, W. died, Edward his Son and Heir entered upon his Wife, she reentered and let the Land to the Plaintiff, who upon an Ouster brought the Action. Heal Sergeant, When P. entered upon W. Leversuch, the Issue in Tail, he was a Disseisor, and by his death the Land descending to his Heir, the entry was taken away of W. Leversuch. Cook contrary, P. by his entry was not a Disseisor, but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor; and it is not found that the said P. had any Son and Heir at the time of his death, and if not, than no descent, and there is not any disseisin found that P. expulit Leversuch out of the Land, and judgement was given against the Plaintiff. And Cook cited a Case which was adjudged in the Common Pleas; it was Skipwiths' Case. Grandfather Tenant in Tail, Father, and Son, the Grandfather died, the Father entered and paid the rent to the Lessor, and died in possession, and it was adjudged the same was not any descent, for the paying of the rent explained by what title he entered, and so shall not be a Disseisor, but at the Election of another. Trin. 33 Eliz. In the King's Bench. CXXVII. Penhalls Case. PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying, that he drew it with intent to strike the Party, and for that cause the Indictment was holden void, as to the Statute. It was moved, if it should not be a good Indictment for the Assault, so as he should be fined for the same: By Sands Clerk of the Crown, and the whole Court, the Indictment is void in all; for the conclusion of the Indictment is contra formam Statuti, and then the jury cannot inquire at the Common Law. Trin. 33 Eliz. In the King's Bench. CXXVIII. Weshbourns Case. WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was taken to it, because in the Margin was written Middlesex, and in the Indictment they both were named of London, and afterwards in the proceed the words are, That Weshbourn and Brown entered in such manner in Com. predict. and that is incertain what County is intended, Middlesex or London; but the Exception was not allowed, for London before is not expressed to be accounted, but only employed. Another Exception was, because they had not any addition; but it was not allowed, for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if ●he party indeed had had the Occupation, or had been in quiet possession for three years' next before the day of the Indictment, and in the Case at Bar the Master hath been in possession by three years, but the Parties indicted being his Servants, had been with him but for one year; it was thereby holden by the Court, that upon the matter Restitution should not be granted, for the possession of the Master in this Case, takes away all Restitution, and that by the Statute. Mich. 32 Eliz. In the Common Pleas. CXXIX. Canons and Osborns Case. A. Seized of a Rent in Fee, granted the same by Fine to B. to the use of C. It was moved to whom the Tertenant should attorn. And by Walmesly, Periam, and Windham, there needs not any Attornment to the Conusee, because all the right of the Rent is out of the Conusor, Attornment. and transferred to Cestuy que use instantly: And Walmesly cited this Case to have been lately adjudged. A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste, and it was adjudged that the Action did well lie. CXXX. Mich. 32 Eliz. In the Common Pleas. A Lease for years is made by Deed Indented rendering Rent, and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term, the Lessee did not pay the Rent, and afterwards is ejected by a Title peramount: By Walmesly and Windham justices, that the Covenant is conditional, and that the Lessee should not have advantage of it, if he did not perform the Condition, which is created by this word (paying.) Periam justice, was strongly to the contrary, viz. that the word (paying) did not create a Condition. Mich. 32 Eliz. In the Common Pleas. CXXXI. Thetford and Thetfords' Case. THe Case was an Action of Debt for Rent reserved upon a Lease for years; the Plaintiff declared that Land was given to A. and B. his Wife, Leases. and the Heirs of their Bodies, and that he and his Wife leased for years to the Defendant, Baron and Feme. and that the Donees were dead, and that the Plaintiff as Heir, etc. for Rent behind, etc. And upon Non dimiserunt, the jury found, that the Husband and Wife dimiserunt by Indenture, and that after the Husband died, and the Wife entered and within the term died: Agreement. Disagreement. Now upon this matter, Anderson justice, conceived clearly that the jury have found for the Defendant, scil. Non dimiserunt, for it is now no Lease ab initio, because the Plaintiff hath not declared upon a Deed, and also the Wife by her disagreement to it, and Occupation of the Land after the Death of her Husband, had made it to be the Lease of her Husband only. Trin. 31 Eliz. In the Common Pleas. CXXXII. Acton and Pitchers Case. IN a Writ of second Deliverance by Acton against Pitcher. Leases within 32 H. 8. It was moved, if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches, and a Prebendary is seized in right of his Prebend, and not in right of the Church: But it is the Opinion of the whole Court, that he was within the Equity of the Statute. Trin. 32 Eliz. In the Common Pleas. CXXXIII. Curtises Case. IN a Writ of Error it was holden in the Common Pleas, Amendment. that if a Writ of Error be brought and delivered to the Chief justice de Communi Banco, and allowed by him under his hand; that afterwards the Record cannot be amended by Prothonotary, Attorney, or Clerk of the Court, although that no Record be entered upon the Roll, upon which the Writ of Error is brought. Mich. 31 Eliz. In the Common Pleas. CXXXIV. Scots Case. SCot brought a Formedon against A. who made default after default, Resceit. Anders. 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand, and gave the same to A. in Tail, the remainder to the said B. in Fee, and prayed to be received; and afterwards the Court, upon advice, ousted him of the Resceit. 28 Eliz. In the Common Pleas. CXXXV. Terrets and the Hundred of etc. Case. IN an Action upon the Statute of Hue and Cry against the Hundred of, etc. the Defendants pleaded Not Guilty: Action upon Statute of Hue and Cry. And in Evidence, the Plaintiff to prove that he was rob, offered to the jury his Oath in verifying his Declaration, which Anderson and Periam utterly refused to accept of; but Windham justice affirmed, that such an Oath had been accepted of in the Case of one Harrington, Oaths. where the Plaintiff could not have other Evidence to prove the Cause in respect of secrecy; for those who have occasion to travel about their occasions, would not acquaint another, what moneys or other things, which they have in their journey: and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause, as in Debt, where the Defendant wageth his Law. Periam, That's an ancient Law; but we will not make new Precedents, for if such an Oath be accepted of us in this case, by the same reason in all causes where is secrecy and no external proof, whereupon would follow great inconvenience; and although such an Oath hath been accepted of, and allowed here, yet the same doth not move us, and we do not see any reason to multiply such Precedents. The Declaration is, that the Plaintiff was rob of 10 l. de Denariis ipsius querentis, and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich, and had received the said money for the use of the said Lady: And Exception was taken to the same by Shuttleworth, but it was not allowed of, for the Plaintiff is accountable to the Lady Rich for the said money. And it was agreed, that if he which was rob after he had made Hue and Cry, doth not further pursue the Felons, yet his Action lieth. Mich. 26 Eliz. In the King's Bench. CXXXVI. Townsend and Pastor's Case. Feoffment by Coparceners Cestuy que uses. NOte, It was holden in the Common Pleas by all the justices in the Case between Townsend and Pastor, two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor, that this Feoffment is not only of the moiety of the Manor, whereof she might lawfully, and by the said Statute make a Feoffment, but also of another moiety by disseisin. Mich. 26 Eliz. In the King's Bench. CXXXVII. Bulwer and smith's Case. BUlwer brought an Action upon the Case against Smith, and declared, how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died, and that the Defendant knowing that, at D. in the County of Norfolk, malitiose & deceptive machinans, to Outlaw the Plaintiff upon the said judgement, in the name of the said H.H. etc. in performance of his said purpose, at W. in the County of Middlesex, took out a Capias ad satisfaciend. in the name of the said H.H. against the now Plaintiff upon the said judgement directed to the Sheriff of London, and Non est inventus being returned upon that, took out an Exigent, in the name of the said H.H. which Writ by the procurement of the Defendant was returned, and then the Plaintiff was Outlawed, and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk; by force of which the Plaintiff was arrested and imprisoned for two months, until he had gotten his Charter of Pardon, by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels: and upon the said Declaration, the Defendant did demur in Law, and the principal cause of the demurrer was because that the Action might have been laid in Middlesex, where the wrong began, scil. the Capias ad satisfaciend, the Outlawry for this imagination at D. in the County of Norfolk, set forth in the Declaration, cannot give to the Plaintiff this Action: But if divers conspire in one County for to indite one, and they put the same in Execution in another County, the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious, than an imagination, imaginatio est unius, conspiratio plurimorum: And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary, and the suing of the Process aforesaid at Westminster is the principal: upon the part of the Plaintiff it was said, that such an action might be laid in the County, where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter, which was but conveyance to the said wrong, was done. A imprisoned upon a Capias ad satisfaciend. in Middlesex escapes into Surrey, the Action upon the escape shall be laid in Surrey. Reteiner of a Servant in one County, who departs in another County, the Master shall lay his Action in which of the said Counties he will, 15 E. 4. 18, 19 41 E. 3. 1. A Writ of Deceit was brought in the County of York, and the Case was, that in a Praecipe quod reddat of Land, the Tenant shown forth a Protection at Westminster, the which was allowed for a year, and within the year the Tenant stayed in the County of York upon his own occasions, the said Writ of Deceit was holden to be well laid, for there the wrong began, notwithstanding that the Original: i. e. the casting of the Protection was in Middlesex; for the deceit is, that the Tenant contrary to the pretence of the Protection continued at York, for the Protection was quia Moraturus. And always where the cause of the Action consists of two things, whereof the one is matter of Record, and the other is matter of Fact: there the Action shall be laid in such County, where the matter in fact may be more properly tried, Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar, the Court was of Opinion, that the Action was well brought in the County of Norfolk. Another Exception was taken to the Declaration, because the Plaintiff hath there set forth whereas his true name is John Bulwer, by which name he now sues, he was sued and outlawed by the name of John Buller, and then the now Plaintiff upon that matter was never sued, nor outlawed, and then is not grieved by the Defendant, but John Buller; for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same, and not divers Persons: But the Exception was disallowed, for the whole Court held, that for As much as the Plaintiff hath declared that he, by the name of John Buller, was sued and Outlawed, the same is an averment in Law, etc. and amounts to so much. Another matter was objected, because it appeareth in the Declaration that H. H. was dead before this Process was sued, and then the Outlawry was erroneous, and so the Plaintiff is not at any mischief, but that he may reverse the Outlawry by Error; as in Conspiracy, the Defendant pleads, that the Indictment upon which the Plaintiff is arraigned is vicious and erroneous and so his life was never in jeopardy. But as to that, it was said by the Court, that the erroneous proceed of the Defendant shall not give advantage to himself, but because the Plaintiff was vexed by colour and reason of the Outlawry, and put to his Writ of Error, which cannot recompense the loss and damage by him sustained by reason of the Outlawry aforesaid, it is reason that the Plaintiff have his Action; wherefore Wray Chief justice, ex assensu Sociorum, gave judgement for the Plaintiff. CXXXVIII. Mich. 27 Eliz. In the King's Bench. Upon the Statute of 23 Eliz. of Recusancy. CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church, and upon the same were Outlawed, and now they came to the King's Bench ready to make their submission, and to conform themselves according to the said Statute; and thereupon they prayed to be discharged. But the Court would not receive such Submission, but advised them to purchase their Pardon for the Outlawry, and then to tender their Submission, which they did accordingly, and at another day came again, and shown to the Court their Pardon; whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute; who said they would, wherefore they were discharged. Mich. 27 Eliz. In the King's Bench. CXXXIX. Christian and Adam's Case. Action for words. AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff, scil. the Plaintiff did conspire the death of the Defendant; it was found for the Plaintiff, and moved in Arrest of judgement, that upon the matter the Action did not lie; for the bare conspiring of the death of a man is not punishable by the Law of the Land, no more than if many conspire to indict one, but do not put it in Execution it is not punishable; but if A. saith that B. lieth in wait to kill him, or rob him, there an Action lieth, for insidiatores viarum are punishable. But the Opinion of the whole Court was, that because these words sound in great discredit of the Plaintiff, it is reason he have his Action, and so judgement was given for the Plaintiff. Mich. 27 Eliz. In the King's Bench. CXL. The Lord Stafford and Sir Rowland Heywoods' Case. THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ. Exception was taken to the original Writ, viz. ad respondend. etc. Quare colloquium, quoddam habebatur, inter Dominum Stafford & Row. Heywood de assurando Castrum, to the said Lord Stafford by the said Sir Rowland, etc. Dictus Rowlandus Castrum illud non assuravit, etc. where the said Writ said cum colloquium quoddam habebatur; for the cause of the Action is not colloquium habitum, but the not assurance of the Castle according to the promise made super colloquium praedictum; and for that cause the Writ was abated. CXLI. Mich. 27 Eliz. In the King's Bench. NOte, by the Court, If one who is not a common Informer, be barred in any Information or Action upon a penal Statute, he shall pay costs, notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be, for the redressing of divers Disorders in common Informers; but if pars gravata be barred, in such case he shall not pay costs. Trin. 32 Eliz. In the Exchequer. CXLII. Robinson's Case. GEorge Robinson Lessee for years of the Manor of Drayton Basset, the Reversion to the King, devised his term to his wife, as long as she should keep herself a Widow, with the Remainder over, if she married or died, and made his Wife and his Son William his Executors, the said William being within age, and therefore the administration was committed to the Wife alone, and she only proved the Will, and afterwards the Wife granted all her Interest to the said William, and died; And by Cook nothing passed by this Grant, for William had the same before, for every Executor hath the whole Interest. Popham contrary; for at the time of the Grant the Son was within age, and had not administered nor proved the Will, therefore in effect the wife was sole Executrix; and by Egerton Solicitor, if during the said Executorship by the wife, one doth trespass upon the Lands, the wife only shall have the Action of Trespass without naming her Co-Executor, which Cook denied; and he cited the Case 10 H. 7. 4 where two Executors are, and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession, to whom the other Executor releaseth, and after the Executor, out of whose possession the goods were taken, brings an Action of Trespass against the Trespasser, who pleads the Release of the other Executor, and it was holden a good Plea, for the possession of the Plaintiff was also the possession of his Companion: The Case was further, that Thomas Robinson in pleading, showing that G. Robinson was possessed, and the same devised to his wife, who granted to William Robinson, who devised it to the Defendant: And the other side showed, that the said Thomas granted the said term to Paramour, and upon that grant they were at Issue; if now against his own pleading Thomas might give in evidence, that Thomas could not grant, for that he had not any thing to grant; for if the gift made by the wife to William was void, and he had the term as Executor, than he could not devise it, but his devise to Thomas was void, and then Thomas could not grant it, and so Ne grant pas. It was also showed, that the said Thomas granted the same to Paramour by Indenture; if now against that Indenture he might give in evidence such special matter; ut supra; and if the Party shall be concluded, if the jury shall be concluded to give the Verdict Secundum veritatem facti, for they are sworn to say the truth, and by Popham and Egerton, as well the jurors, as the Parties, are bound and concluded by the confession of the Parties on the Record; and here all confess that William devised to him, virtute cujus he was possessed. The Queen's Attorney to that said, That true it is that Thomas Robinson was possessed; but further said, that the said Thomas granted it to Paramour, and so the Interest of Thomas is confessed on both sides. Therefore the jury shall not be received to say the contrary. And by Manwood Chief Baron, if the Parties admit a thing by not gainsaying it, Jurors, where bound by confession of the parties, where not. the jury is not bound by it; but where upon the pleading a special matter is confessed, the jury shall be bound thereby. And afterwards the Issue was found against Robinson the Defendant. 33 Eliz. In the King's Bench. CXLIII. Applethwait and Nertleys' Case. IN an Action upon the Case, the Plaintiff declared, that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter, to give to the Plaintiff 40 l. and said he had married his Daughter, and yet the Defendant Licet saepius requisitus would not pay it. It was moved by Cook in stay of judgement, that the Declaration is vicious because there is not set forth the place and time, when the request was made, for the Assumpsit being general, it is by Law to be paid upon request. Fenner, If the promise was expressly to be paid upon request, the Declaration was not good. And afterwards judgement was given for the Plaintiff. Hil. 30 Eliz. In the Common Pleas. CXLIV. Wats and King's Case. SAmuel Wat's Plaintiff in Ejectione firmae against W. King, upon a Special Verdict it was found that W. Wallshot was seized in Fee, and he with one Oliver Shuttleworth Octab. Mich. 3 & 4 Phil. & Mary, levied a Fine Sur Conusans de droit, etc. to John Hooper, who granted and rendered by the same Fine to Oliver for a month, the remainder to the said W. Wallshot, and to one Anne Cook, and the heirs of their bodies, etc. the remainder to the right heirs of the said W. Wallshot in Fee, and that with Proclamation. William and Anne intermarry, have issue John now alive: W. Wallshot 4 & 5 Phil. & Mary, levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs: W. Wallshot 18 Eliz. died, Anne took to husband Richard Stephens, and they in the right of the said Anne entered, and by Indenture demised the said Land to Richard Hoose the Father, Richard the Son, and Mary his wife, for the term of their lives, rendering to the said Richard Stephens and Anne his wife, and to the heirs of the body of the said Anne, and of the right heirs of the same W. Wallshot. Anne died; and if this Lease should bind the Conusee was the question, for it was agreed by all that the Issue in Tail was bound by the Fine, Quaere; the Case was only put, but not resolved. CXLV. Trin. 30 Eliz. In the Common Pleas. UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands, an Habere facias seisinam was awarded; the Sheriff as to one Acre returned Habere feci, and as to the other tarde. And that return was showed to the Court, Amercement of the Sheriff. and all the justices but Periam held that the Sheriff should be amerced for that return, being contrary & repugnant in itself; but Periam said, it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had, that the Sheriff in time could not make execution of both being so remote the one from the other. To which it was answered, That if the truth of the case was such, Then might the Sheriff make Execution in one Acre in the name of both Acres. And if upon a Capias ad satisfaciend. against two, the Sheriff return as to one a Cepi, and as to the other Tarde, he shall be amerced, for his several retorns cannot stand together. Mich. 29 Eliz. In the Common Pleas. CXLVI. Lees and Lord Staffords Case. COmpton made Conusans as Bailiff to Edward Lord Stafford, and shown that Henry Lord Stafford, Father of the said Edward, and Ursula his Wife, were seized of the place where, and let the same for years to Edward Lees the Plaintiff, Robert Lees, and Elizabeth Atwood, upon Condition they, nor any of them, should alien the said Term, nor any part of the same without the leave of the Lord or his Heirs. Henry Lord Stafford and Ursula died, and that the Reversion thereof descended to Edward Lord Stafford; and shown further, that the said Edward Lees the Plaintiff had aliened: To which the Plaintiff in bar of the Conusans said, that the said Edward now Lord Stafford gave Licence, that the said Edward Lees, Robert, or Elizabeth might alien, and that was without Deed. It was conceived by some, that this Licence was not of any force to dispense with the Condition, because it is uncertain and doubtful in the disjunctive; and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty: But all the Court was to the contrary. For here the thing which is given is but a Liberty, and is not to be resembled to a Gift or Interest; and the intent of the Lord Stafford was, that one of them might alien, but not all of them, and afterward judgement was given for the Plaintiff. Trin. 31 Eliz. In the King's Bench. CXLVII. Limver and Evories Case. LImver as Administrator of one A. brought Debt against Evory, and the case was, F. made G. his Executor, and G. made H. an Infant his Executor and died, and during the minority, Administration was granted to the Plaintiff, who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator, and that was assigned for Error, for the Plaintiff ought to bring his Action as Administrator of the first Testator, vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the judgement was reversed, Mich. 33 Eliz. In the King's Bench. CXLVIII. Knevit and Copes Case. KKnevit brought Ejectione firmae against Cope, and declared, 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May, 32 Eliz. had let to him a House and two yard Lands, containing forty Acres of Land, Meadow, and Pasture, at Tithingham de forecomb, in the Parish of Steep, etc. and upon Not Guilty, the Visne was of Tithingham de Forecomb: Exception was taken by Cook, that the Declaration had not certainty; for it is not showed certain, how much Meadow Land, and how much Pasture is contained in the said two yard Lands, and the jury may find the Defendant Guilty, as to so much Land, but not to the residue; also he hath not showed in the Declaration when the Lease was made, but only saith, that by Indenture bearing date 20 May, etc. but doth not show any day of delivery of the Indenture, for than is the demise. To which Exception it was said by the justices, That the Declaration as to that was good enough, for it shall be intended to be delivered at the day of the date. Another Exception was taken to the Visne, because that the Visne ought to have been from the Parish, and not from Tithingham, 11 H. 7. 23, 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy, You shall never have a Visne of the Parish, for divers Towns may be in one Parish; but here the Visne is well of Tithingham, for it may be that it is a Town. Cook, It is but a Vill conus, from which a Visne cannot come. CXLIX. Trin. 28 Eliz. In the Common Pleas. Rot. 1027. MIlbourn brought an Action upon the Statute of Winchester, against the Inhabitants within the Hundred of Dunmow in the County of Essex, it was found by Special Verdict that the Plaintiff was rob 23 Aprilis, inter horam secundam & matutinam tempore nocturno, & ante Lucem ejusdem diei; and the Opinion of the Court was clear, that the Plaintiff should be barred, for the said Statute provided for ordinary Travel: as in the Case of Archpool, who came to his Inn post Sunset & ante noctem in tempore diurno, which is an usual time for travelling to come to his Inn; but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours, for it is the folly of the Traveller to take his journey so out of season, and the Inhabitants are not bound to leave their Houses, and to attend the ways tempore nocturno: and another reason was alleged by the justices, because the said Statute appoints watch to be kept in the time of night, à Festo Ascensionis usque ad Festum Sancti Michaelis, and this Robbery was done the 23 of April, so as it was out of that time; and afterwards judgement was given against the Plaintiff. Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case. Estrepement in Partition. A Writ of Partition by Barker heir of Gertrude, Marquess of Exeter, who devised all her Lands to Blunt; by which the third part was descended to the Plaintiff, and he prayed a Writ of Estrepement; and it was the Opinion of the Court, that the Writ ought not to be granted, for that the Plaintiff might have a more proper remedy upon the Statute cum duo & tres, etc. and in a Writ of Partition, no Land is demanded. Trin. 29 Eliz. In the King's Bench. CLI. Megot and Davies Case. Assumpsit. MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit; and it was found by Nisi Prius for the Plaintiff, and afterwards before the day in Bank Broughton died; and after judgement given, Davy the other Defendant brought a Writ of Error in the said Court, scil. in the King's Bench, where judgement was given, and assigned an Error in fact, scil. the death of Broughton depending, the Writ, vide 2 R. 3. 21. and this Case is not like to Trespass; for Trespass done by many are several Trespasses, but every Assumpsit is joint: If the Court may reverse their own Judgement. and if the Court upon this matter might reverse their own judgement, was the Question; the Case was not resolved, but adjourned. CLII Trin. 31 Eliz. In the Common Pleas. IT was found by Office, that J. S. held by the Queen, and died without Heir, whereas in truth he had an Heir, scil. A. S. who leased the Lands for an hundred years, and afterwards traversed the Office, Office trove. and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner, in behalf of the Sheriffs of London, before whom the matter depended, to whom it was said by Anderson Chief justice, Conveyance by the Heir; upon Entrusion. That where the King is entitled by an Office to a Chattel, as to a wardship▪ etc. there if the Heir without any intrusion bargain and sell, levy a Fine, or lease for years during the possession of the King, it is void against the King, but shall bind the Heir; but where the King is entitled to the Fee-simple, as in this Case, such a Conveyance is merely void. Hil. 31 Eliz. In the King's Bench. CLIII. Samuel Starkeys' Case. HOmine replegiando by Samuel Starkey to the Sheriffs of London. Who returned, that the said Starkey was indicted to be de mala fama & deceptione Domini Regis, with divers other general words, and namely that he had deceived J. S. a Clothier, and that he was a common Cozener; and thereof being found guilty, judgement was given by the Mayor and Recorder, That he should be disfranchized of his Freedom, and should be fined and imprisoned for a year; and further said, that he had not paid his Fine, nor the year expired. Cook, Such Return hath not been seen, and it is directly against the Statute of Magna Charta. Wray Chief justice gave a Rule that the Sheriffs should make their Return at their perils before such a day. Hil. 31 Eliz. In the King's Bench. CLIU Bushy and Milfeilds' Case. IN Error brought by Bushy and Milfeild, It was assigned for Error, that where in the first Action the jury gave four pence Costs, and the Court gave the incremento three and twenty shillings, that in the judgement the four pence was omitted. Error. It was the Opinion of the Court, That for that Cause the judgement should be reversed, although it be for the advantage of the Party, so where the judgement is quod sit in misericordia, where it ought to be Capiatur. Hil. 29 Eliz. In the Common Pleas. CLV. Bingham and Squires Case. BIngham brought Debt upon an Obligation against Squire. Obligation. 3 Leon. 151. The Condition was, If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham, so as the said Bingham, at the said next Avoidance may present, that then, etc. The Case was, That afterwards by the means and endeavour of Squire, the Grant of the next Avoidance was made to Bingham: but before the next Avoidance, the present Archdeacon was created a Bishop, so as the presentment of that Avoidance belonged to the Queen: It was adjudged in this Case, that the Condition was not performed, and that by reason of these words, scil. So that Bingham may present. And afterwards judgement was given that the Plaintiff should recover. Hil. 26 Eliz. In the Common Pleas. CLVI. Mansors Case. A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December, he to whom the Assurance was to be made, scil. the Obligee, the said last day before Sunsetting, came to the Obligor with a Deed ready to be sealed, and prayed him to seal it; who said to him that he was a man unlearned, and said he would show the same to his Counsel, and then he would seal it. And if the Obligation was forfeited or not, because he did not seal it presently▪ was the question: And Fenner argued that it was not; for when a thing is to be done upon request, than he who makes the request, aught to give sufficient and convenient time to perform the Condition. I agree, That where the Condition is absolute, there if the Condition be not performed, he shall not be excused by the default of another. As if a man be bounden to marry A.S. and she will not marry him; or to enfeoff J. S. and he refuseth, as 3 H. 6. is, the Obligation is forfeited; Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment, or he will not marry A. S. the Obligation is not forfeited: So in our Case, for by his late request it is impossible for me to perform the condition; for before my Counsel shall have perused it, the time will be past. If a man be bound to enfeoff one of Lands in Barwick, request ought to be made so long time before, that after that he may go to Barwick. So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day, that the money may conveniently be told. This Case was in question. A man made a Feoffment of the Manor of D. with the Appurtenances, to which an Advowson was appendent, and covenanted that the Manor upon request should be discharged of all manner of Encumbrances, and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died, the Clerk of the Grantee was instituted and inducted, the Feoffee requested the Feoffor to discharge the Encumbrance. The opinion of many Sages of the Law was, that he had not made his request within convenient time. So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body; If the Obligee demand Assurance after the death of J. S. without Issue, yet the Obligation is not forfeited. In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use, where he could not have more speedy notice of his death, he shall not be a Trespassor. In 15 Eliz it was holden in Wottons Case, That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall, and tendered to him a Writing, and prayed him to seal it. And Wotton said that he would not, that the Obligation was forfeited; contrary if he had not denied to seal it, but had showed the same to his Counsel, as in our Case. But the Opinion of the justices was, that the Obligation was forfeited. For when he knew the last instant of the time, he ought to have had his Counsel there ready with him. Vide the Case of Arbitrement 18 E. 4. 21. At another day the Case was argued again by Andrews, and he said that the Obligation was not forfeited; For he said it is a Rule in Law, Sic utere tuo, ut alienum non laedas, and in E. 4. a man was bound upon request to relinquish and renounce Administration▪ and there it was holden, that after the request he ought to have convenient time to go to the Ordinary, before it shall be said that he had forfeited his Obligation. In 33 E. 3. it is said that if J. S. be bound, That if A B infeoff C. that then he shall pay to the Obligee 10 l. Now if the Feoffment be made after Sunsetting as it well may be, yet it is sufficient to save his Obligation, if he pay the money the next day: And 19 H. 6. an Annuity was granted to an Infant until he was promoted to a Benefice, if a Benefice be offered unto him before he be of sufficient age, and he refuseth it, the Obligation is not forfeited. If a man be bound to enfeoff and make Livery and Seisin of the Manor of D to one upon request, and afterwards the Party is made King, in which Case he cannot take Livery, now if upon request the Party refuseth, yet it is no Forfeiture: And it hath been holden here by you all, That if a man unlearned seals a Deed which is written contrary to the intent of the Parties, the same not being read unto him, by that he shall not be bound for ever. But the Opinion of the Court was as before, That the Obligation was forfeited. CLVII. Pasc. 26 Eliz. In the Common Pleas. NOte that Mead and Windham (the other justices being absent) were of Opinion, That a Copyholder in Fee, who by Custom may surrender in Fee, may make a surrender in Tail, without any Special Custom to warrant it; and he who may prescribe to make a Feoffment in Fee, may make a Lease for Life, and it shall be good, because Omne majus continet in se minus. Trin. 27 Eliz. In the King's Bench. CLVIII. Trecarram and Friendships' Case. 1 Leon. 287. TRecarram made a Demise by these words: This Indenture between Trecarram, etc. of the one part, and Friendship his W●●e, and their Children lawfully begotten, at the Assignment of the said Friendship of the other part. The Question was, if L. the Daughter, which the Husband and Wife had at the time of the Lease made, was Party to the said Indenture, and so took by it. Or if another Son of Friendship, which after he made his Executor, should have the Term. Hamon, 30 E. 3. If a Gift be made to Infants of such a man, it is a good Name of purchase, and if he hath but one Infant, it is good to him: and so in our Case, where Friendship had Issue a Daughter, at the time of the Lease, that she should take only; otherwise where he had many. And the words, viz. at the Assignment of Friendship, are mere surplusage, as 20 Ass. where a man gave twenty loads of Wood in such a Wood (whereof fourteen he hath of the gift of such a one,) these words (whereof he hath of the gift of such a one,) are surplusage. Cook conceived that the Daughter, who was in esse at the time of the demise, should have the Term: For if a man make a grant to two, as the one of them is not Capax, he who is capable shall have the whole. As a Feoffment to J. S. and the right Heirs of J. D. J. D. being alive, J. S. shall have the whole. So Ass. a gift to a man, and to such a wife which he shall have he shall have the whole, and the wife nothing: The words At the Assignment, etc. are void, for there is not a Person able to take at the time of the grant, therefore he shall not take afterwards; and because the Daughter is able, she shall. Wray justice, conceived that these words, At the Assignment of Friendship were not void, but that he had reserved to him liberty to make his Son party, or not; and because he had not assigned him, that he took nothing. Ayliffe, If Lands be leased to me, my Wife, and William my Son, whereas his Name is John, it is void as to the Son for the Misnomer, but if he had said Son, without more, it had been good to the Son: and so here if he had not mentioned any Assignment, than the Daughter should have had it; but contrary by the words of the Assignment. Clench, The intent of the parties is to be considered: As if I grant to you Common within my Manor of D. it shall be construed to be within my Lands commonable, and not in my Orchard: And here it shall be intended those Children which he shall name when the sealing was; and if he name others after, it shall be void; as a Lease to you, and to her who you shall take to wife, is void, for there aught to be such a person at the time of the commencement of the Deed, which might take. And the Opinion of the whole Court was, That the Defendant, who claimed by the Executor, should have the term, and not the Plaintiff who claimed by the Daughter, and therefore judgement was entered, that the Plaintiff nihil capiat per Billam. Pasc. 24 Eliz. CLIX The Countess of Sussex and Worths Case. IN 4 and 5 Phil. and Mary, 1 Leon 35. ● 3 Leon. 132. Co. 6 Rep. 33. Fitz-williams Case. a private Statute was made by which the Manor of Barnham was assured to the Countess of Sussex for her jointure. Proviso that it should be lawful for the Earl of Sussex to make a Lease, or Leases for 21 years. The Earl made a lease for 21 years, and afterwards he made another lease for 21 years, within a year before the first lease ended and the second lease was to begin at the end of the first lease, and if the second lease was good, and within the intent of the Act, was the question. Popham Attorney, That it was not: 1. Because it is to begin at a day to come. 2. Because it is made during the first lease. But it may be objected, that it is said (lease or leases): It is not the sense of the Act, for by it he might only make leases in possession, and not in futuro, and so he might make a lease for 21 years, to begin after his death, which should be a great prejudice to the Countess, and against the intent of the Act, which was made for her advantage. The Lord Treasurer and W. Mildmay had a Commission to make leases for 21 years of the Lands of the Queen, because the Queen should not be troubled with it: They could not make leases but in possession only by virtue of their Commission; but all others which exceed 21 years, and in Reversion passed by the hands of the Attorney of the Queen, and not by them only by their Commission. 2. Because he cannot make a lease upon a lease, for by the same reason that he might make one future lease, he might also make 20 leases in ruturo, and so make void the Act: It was Marshal's Case upon the Statute of 1 Eliz. of leases to be made by Bishops. The Bishop of Canterbury made a lease for one and twenty years, and afterwards he made another Lease for 21 years to begin at the end of the first Lease. It was holden that the second Lease was not good. Leases by spiritual persons, as Bishops, etc. But in the great Case upon that point in the Exchequer Chamber, there the second Lease was in possession, and to begin presently, and ran with the other; and therefore it was adjudged a good Lease, because the Land was not charged with more than with 21 years in the whole; and if it had been so done here, it had been good. Wray said that if the second lease had been made two or three years before the expiration of the first lease, then clearly it had been void, but because, but one, two, or three days, or a month before, he doubted if it should be void, or not. The Statute of 32 H. 8. Leases made for one and twenty years to be good from the day of the date thereof, and one makes a lease to begin at a day to come, and by two of the justices of the Common Pleas it is good; but the two other justices held the contrary. Clench justice, There is no difference, if it be by one Deed or several Deeds; and therefore he held, that if the Earl had made a lease for one and twenty years, and within a year another, it is a void Lease, whether it be by one Deed or two Deeds, for he exceeds his Authority: And so in the principal Case; If there had been no Proviso, he could not have made any lease, therefore the Proviso which gave him Authority ought precisely to be performed. At another day it was argued by Daniel for the Lessee in Reversion to begin at a day to come, and by him words only are not to be taken or considered in a Statute, but the meaning of them, and they are not to be severed: Also Statute Law is to be expounded by the Common Law, and by the Common Law if one give Authority to another to make leases of his Lands, he may make leases in Reversion, because an Authority shall be taken most beneficially for them for whom it was given. So if one grant an Authority to make Estates of his Lands, by that general word, he may make leases for years or life, or gifts in tail, Feoffments, or other Estates whatsoever. If one gives a Commission to another to make leases for One and twenty years of his lands, he may make a lease in Reversion: and that Case was in the Duchy between Alcock and Hicks. Leases. 2. It is good by Statute Law: For the Statute of Richard 2. which gives Authority to Cestuy que use, to make leases, he may thereby make leases in Reversion. The Statute of 27 H. 8. which gives Authority to the chief Officer of the Court of Surveyors to make leases, if it had stayed there he might have made leases in Reversion, but the said Statute goes further, and says, Proviso that he shall not make a lease in Reversion, vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leases to be made by Husbands of the lands of their Wives by the general words of the said Statute, they might make Leases in Reversion. But the Statute goes further Proviso, that there shall not be any former Lease in being above 21 years before the making of the said Leases. In all Cases of Statutes which are with Prouisoes, the Law upon them shall be taken generally, if not in such particulars which are restrained by the Proviso, as here, the Proviso goes to the ancient Rent to be reserved, that the Countess shall have remedy against the Lessees for the said Rent, etc. therefore it is at large in all other points but in these: As if the Wife be within age, and she and her Husband join in a Lease, yet this Lease is good by the Statute of 32 H. 8. because the Law is general, and doth not restrain these Imperfections expressly: So a Feoffment in Fee with warranty, Proviso that he shall not Vouch; yet that is a restraint as to the Voucher only, and he is at large to Rebutt or have warrantia Chartae: A Lease for life, Proviso he shall not do voluntary waste, he is at large to do other waste, but otherwise it were if there were no Proviso. Therefore a Proviso makes the words precedent to be expounded more liberally. The words of the Statute of 33 H. 8. cap. 39 of Surveyors, which gives authority to the chief Officer to devise, set, or let for 21 years, he might have made a Lease for 21 years in Reversion, if the Proviso had not been. But the words of the Act in our Case are demise; demises therefore shall be taken most liberally. 3. As to the intent of the Act, this Lease is within it, for the intent is to be collected out of the words, and shall not be drawn to any private intent against the words which should be done here; for by such Exposition the Earl, his Heirs, Executors, etc. should be prejudiced, and the Countess only should be benefited: Also Remedy is given to the Countess by this Act against such Lessees, that she should have the Rent by Debt or Distress, as it she had been party or privy, therefore it is reason via versa, that they have remedy against her for their Leases: Also he said that the same remedy should be for them as against the Earl himself if he had lived, therefore they shall have remedy against her, who might have had it against the Earl in his life. Also the Statute is to be expounded according to the words, where such Exposition is not rigorous nor mischievous. Also private Laws are to be expounded by the Letter and strictly, as the Deed of the party, as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor, calling to him one of the justices, might award a Subpoena between A. and B. and end the matter between them; there, by all the justices but Littleton, he shall not award a Subpoena general, but a Subpoena making mention of the Act, for he shall pursue the particular Act strictly, and a common Act for the common profit shall be construed largely. Also a Statute shall not be construed largely by Equity to the overthrow of an Estate; as the Statute which gives, That if a Woman consent to a Ravisher, that the next Heir shall enter, if the Daughter entereth, and afterward a Son is born, he shall not put out the Daughter, because the Statute shall not be drawn to a private intent to the overthrow of an Estate vested before lawfully in the Daughter: Therefore neither in our Case the Act shall not be drawn to a private sense for the benefit of the Countess to overthrow the Lease for years; and it is not like to the Case which hath been put: If he make a Lease for twenty years, and for other twenty years, the same is not good by the Act, which Case I agree, for that is a Lease for forty years. Egerton Solicitor contrary: 1. As to the word Demise from dismission, the same is nothing else but a letting of the Land. Lo Lease is from (Laiser) a French word, and such a Demise at a day to come is an Interest of a Lease, and not a Lease itself, for he hath not let the Land: As if I say, I let you my Land for 21 years: When shall you have my Land? Shall you have my Land at a day to come, or presently? If I fell you Land, and Covenant that it is discharged of all other Encumbrances than Leases for 21 years, and there is a Lease to begin afterwards for 21 years. I have broken my Covenant. If I am bound to make you a Lease for 21 years, and I say to you, I make a Lease to you to begin 200 years after, I have forfeited my Obligation. If the custom of a Manor be that Dominus pro tempore may make Leases for 21 years, may he make a Lease to begin 20 years after? Truly not, if there be not a Special Custom to make it good. If I give authority to my Steward to make Leases of my Lands for 21 years, he cannot make a Lease to begin at 100 years hereafter. As to the Case of the Duchy, there the Condition is that he shall make Leases according to his discretion, therefore there he may make such Leases as he pleaseth. As to the Statute of Richard 2. which enables Cestuy que use, it is not like to our Act or Statute, for that is, that Feoffments, Estates, etc. therefore he may make such Leases without doubt. If I devise that my Executor shall make Leases of my Lands for 21 years, he cannot make a Lease for to commence 100 years after; and if they do not make them within convenient time, the Heir shall avoid their Authority: So the Statute Law hath such Exposition that the precise time ought to be observed, as the Statute of 14 E. 3. Cap. 18. 1. Receipt to Vourcher, 8. If the Tenant vouch to warranty a dead man, and the Demandant will aver that the Vouchee is dead, or that there is none such, there the Averment shall be received without more delay. Upon that Statute the Case in 21 E. 3. where one vouched to warranty, and a Summoneas ad Warrantizandum issued, and then came the Demandant, and would have averred that the Vouchee is dead, the Tenant said he ought to aver the same upon the Voucher to warranty, and that now he had surceased his time to take advantage of the time; and the Demandant said, That the Statute did not bind him to that, nor prescribed any time, but left the same generally, yet by the Court it was awarded that he should have the Averment the time of the Voucher, or not at all. So the Statute of 11 H. 7. cap 20. If a woman who hath a jointure for life or in Tail, and suffers a Common Recovery, according to the Statute of 11 H. 7. cap. 20. and afterwards the Issue in Tail, releaseth all his right by Fine and dieth, his Issue may enter, for the assent ought to be by Vourcher in the same Action, and the like, for if there be a mean instance between the Recovery and the Assent, than any Assent after is nothing to the purpose; for the Recovery being once void by the Statute, it cannot be made good by assent afterwards, Vide Dr. & Student 54. and yet the Statute saith, Provided that the Act shall not extend to any such Recovery, Discontinuance, etc. if the next heir be assenting to the same Recovery, etc. so as the same Assent or Agreement is of Record or enroled; and doth not say, If the Assent ought to be at one time, or at another. But to come to Leases upon Statutes. Before the Statute of 2 E. 6. cap. 8. if Leases were not found by Offices, they should be ousted and put to their Traverse. But put case that after that Statute a Lease to begin at a day to come is not found by Office, shall it be aided by that Statute? No truly, and so it is holden in the Court of Wards at this day. And the Lord Chief justice of England so held in his Reading at Lincoln's Inn: The Statute of 1 Eliz. of Leases to be made by Bishops is, that Leases other then for 21 years from the time that they begin, that is, when they take effect as a Deed, and when they take effect not to be executed; for so they might make infinite Leases: Quaere the further part of egerton's Argument in this Case; And vide in Cooks 1 part of his Reports, where this Case is reported to be adjudged; that the Lease made in Reversion by the Earl was a void Lease. Mich. 29 Eliz. In the Common Pleas. DEbt brought upon an Escape in L. the Defendant said, That he suffered him to escape in C. by the commandment of the Plaintiff, without that, that he escaped in L. It was holden to be no Plea. But in an Action upon a false imprisonment in L. he may justify, That he was Sheriff of C. and took him by force of a Writ, without that, that he imprisoned him in L. Rhodes justice. One brings an Action upon an Escape in L. and in truth he never was in L. after the Escape, in an Action he shall recover. Periam and Rhodes, Where the matter of justification is tied to a place there the place is traversable. And Rhodes said, There was a Case adjudged, in an Action, by Davage, against the Mayor of Lynn, where the Defendant justified as a special justice within the Town, and traversed the place alleged by the Plaintiff. Mich. 29 & 30 Eliz. In the King's Bench. CLXI. Scot and Scots Case. Common Recovery. 2 Leon. 128. 3 Leon. 225. 1 Cro. 73. GEorge Scot the Elder sued a Replevin against George Scot the Younger: The Case was this, One Georgo Scot 20 H. 8. being Tenant in Tail of certain Lands, suffered a Recovery to the use of his last Will, and 25 H. 8 by his Will declared. That he willed that the Recoverers make a good and favourable Lease to Hugh Scot his younger Brother, and 25 H. 8. they make a Lease to Hugh Scot for ninety nine years, reserving 11 l. 5 s. 8 d. rend payable at the Annunciation and Michaelmas by equal portions, and that to the Recoverers, their Heirs and Assigns. And further it was covenanted, that after the death of the Recoverers, the rent should be paid to Cestuy que use, and his Heirs and Assigns, any thing in the Indenture to the contrary notwithstanding. Proviso that if the Lessee make his Heir-male his Assignee of the Term, that then he pay the rent to the Recoverers, their Heirs and Assigns, and he did not pay the rent to the Heirs of Cestuy que use, and thereupon was a Distress and a Replevin. Drew argued for the Plaintiff; and first he spoke to the performance of the Condition, and when a Condition is created, the Law says it shall be taken favourable for him who is to perform it, Conditions. as 3 H. 7. One is to make Appropriation of such a Church, and he grants a rent out of it, and then makes the appropriation, it was holden that he had performed the Condition. So 27 H. 8. a Lease upon condition to scour the Ditches; if he once doth it, it is sufficient, and he cited another Case out of 37 H. 6. As to the creating of a condition, there are some words which are conditional of themselves, as in Litt: Ita quod, sub conditione, Ad effectum, 38 H. 6. 34. in Case of the King: In some Case (Pro) makes a condition, in some Cases not. Proviso also sometimes makes a condition, sometimes it is taken for the enlargement of an Estate, 45 E. 3. 8. One had the ward of Land, and of the Body, and granted the same to W. P. his Servant, Pro bono servitio, and he departed from his service, the other may enter in the wardship and land therefore, (Pro) makes a condition. 41 Eliz. One granted an Annuity to another Pro concilio inpendendo, if he doth not give counsel, the Annuity is forfeited for he hath no means to compel him to give counsel, and therefore it is a condition: But in some cases (Pro) doth not make a condition, as if before the Statute of Quia emptores terrarum, one makes a Feoffment of lands pro homagio suo, there if the homage be not done, he may distrain for it. 9 E. 4. 21. Where Tithes are exchanged for Annuity, or Annuity for Tithes, there it is not a condition. (Simo) in the Case of Colthirst is a condition, in some other Cases no condition. (Proviso) in our Case doth not make a condition. 7 H. 6.44. A man made a Feoffment with warranty, Proviso semper, that he should not vouch him nor his heirs. So a grant of a rent, Proviso that he shall not charge his person: these are not conditions but foreprises. 9 H. 6. a Lease was made without impeachment, Proviso that he should not do voluntary Waste; this Proviso went to a Covenant, and not to the overthrowing of the Estate. So if one granted a Manor, Proviso that his grant shall not extend to a Wood upon the Manor, the same is not a condition but a foreprise or exception. 35 H. 8. Br. Conditions 195. Note for Law, Proviso Condition. That Proviso semper put on the part of the Lessee, upon the words of the Habendum, makes a condition, but contrary of a Proviso on the part of the Lessor; As it is covenanted after the Habendum and after the Reddendum, that the Lessee shall scour the Ditches, Proviso that the Lessee carry the Dung to such a place or field, the same is not a condition to forfeit the lease for not doing of it. Contrary if the Proviso be put immediately upon the Habendum, which makes the Estate, or after the Reddendum. The Case 27 H. 8. of Martin Dockery is left at large. In 5 Eliz. there was a Case of one Etherel, where the Bishop of York made a lease for years reserving rend to him and his Successors, Proviso that during the time of every vacation, the rent should be paid to the Dean and Chapter of York, and it was not paid to them after the death of the Bishop, during the vacation: It was holden to be no condition, but a limitation. Also if the Proviso here shall be a condition, than it is a favourable lease according to the will, for a conditional lease is not a favourable lease. 2. Point. If it be a Condition; yet the Plaintiff ought to recover the rent for which the demand shall be, where the Entry is only the moiety of an annual rent, and he demands the whole, therefore his demand is not good; for if a Feoffment be pleaded made by one, and the Deed is showed, by which it appeareth that it was made by many, although he was one of them, yet it is not good, nor warranted by it. Also the conclusion which they make doth destroy the whole, for it is, Et quia praedict. redditus was not paid, etc. Which was that? the rend of the whole year, scil. 11 l. 6 s. 8 d. and that is false; for if the moiety was paid, he had no cause to enter; but by their conclusion, if all was paid but a penny, yet they might enter, and therefore the rejoinder is not good. Cook contrary, for the Avowant: he said, It is a condition, and he put this as a general Rule, That where a Proviso is parcel of the sentence which contains Covenant, or abridgeth parcel of the Covenant, that it doth not make a Condition, but an Exception. As Litt. a rent granted, Proviso that he shall not charge his person, the same is not a Condition, because it abridgeth parcel of the Grant, and controls the Sentence precedent. So 9 H. 6. Proviso that he shall not do voluntary Waste, for it abridgeth the first impeachment of Waste. So a Feoffment with warranty, Proviso that he shall not vouch, abridgeth parcel of the force of the warranty; for by warranty he may rebut, vouch, or have Warrantia Chartae: Therefore there where it is parcel of the Sentence which contains Covenant, it is not a Condition: and that difference was holden and agreed in the Lord Mountjoyes Case. But in our Case there is not a qualification of the Sentence, or Covenant contained in the Sentence, nor participant at all with the Sentence, but it stands substantiuè, for there was a full Sentence before, and therefore it is not parcel of it. Also it varies from the Sentence precedent in the person who shall pay the rent, and to whom it shall be paid, and therefore it is a new Sentence, and strange to the first: and it is not like to the Case of 9 H. 6. before, Br. Warranty, he shall not vouch, for there it controls the precedent Sentence: But if I make a Feoffment in Fee with warranty, that he shall not vouch J. S. who is a stranger, there it is a Condition; but if it is that he shall not vouch the Feoffor, there it is not a Condition. And the Case of the Bishop of York, was Pasc. 4 Eliz. Rot. 460. Com. Banc. he conceived, that during the vacation, the rent should go to the King, and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York, and there the Proviso did not make a Condition: For although it was limited to be paid to the Dean and Chapter in the time of the vacation, with a Proviso, or by way of Promise, yet there it is a Condition, for all is one Corporation; for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors. But 15 and 16 Eliz. Andrews and Cromwell's Case, where John Blunt sold a Manor to Andrews, and his Heirs, and Blunt covenanted to suffer a Common Recovery for the better assurance thereof, and afterwards there was a Proviso, Provided always, That Andrews re-grant the Advowson which was appendent to the Manor to Blunt for his life; and because there it stands substantiuè by itself, therefore it was holden to be a Condition; and yet truly it was not the meaning, that for not granting of a pelting Advowson, that the whole former Estate of the Manor being of great value, should be defeated; yet notwithstanding, it was holden to be a Condition: and there also the Opinion of Br. 35 H. 8. is controlled, That where also the Opinion of Br. 35 H. 8. is controlled; that where a Proviso is jumbled amongst Covenants, that it doth not make a Condition: Proviso never makes a Covenant, therefore, either the Sentence shall be void, or it shall be a Condition. As if a Lease for years be made, Proviso that the Lessee for years do not commit Waste, it is no covenant. He said as to the second point, that the same was adjudged between Andrews and Cromwell, where a rent was payable every half year, and there, as here, the whole rent was demanded, and it was good, for he is not to pay the one moiety; and he is at his peril to pay the one moiety; and he who denies the whole, denies every part; Et quicquid dicitur de toto, dicitur de partibus. It was adjourned. Hil. 29 Eliz. In the Common Pleas. CLXII. The Lord Mountjoyes and Barkers Case. IN an Ejectione firmae upon a Special Verdict, the Case was this, King Ed. 6. granted the Manor and Hundred of Tremington in Fee, rendering rend, to hold of the Manor of East Greenwich in Socage, reddendo annuatim 136 l. Queen Mary reciting the first Grant; in the first year of her reign, granted the rent and fealty and the Manors of Cauford, D. S. Et etiam Manerium nostrum, & Hundredum de Tremington (although she had not the Manor) to the Marquis of Exeter; after which the Marchioness being seized of the Manor of Cauford holden in Capite, and of other Lands 4 and 5 Philip and Mary, devised the Manor of Cauford, D. S. and whereas she had nothing in the Manor of Tremington, but the rent and fealty out of it; she devised the same with the others to the Lord Mountjoy: and also she devised divers Legacies and Annuities to her Servants and others. And devised by the same Will, that they should be levied of the Manor of Tremington, and of the Manors of D. S. whereas D. S. were not Manors but Farms. And one Barker was found Heir to the Devisor, who claimed to have the third part: The first question was. If the rent and fealty here holden in Capite, passed by the name of the Manor, or not; and if they passed, what quantity passed. Walmsley, They do not pass by that name; for this rent, nec in rei veritate, nec in reputatione, was ever taken for a Manor. Also she hath named it in her Will, between those which are very Manors, by which it appeareth, that her intent was not to pass it, unless it was a Manor, as the other, which sense is also fortified that they shall be levied, parceled, and taken; by which I conceive her meaning was, that there should be some place to which the Devisees might resort to levy it. Further, It is taken for Law in Wills; that a thing employed shall not destroy a thing expressed: But if by implication, the Rent should pass, than the Manor of Cauford should not pass, which was her express will to pass. As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males, and if he die without Heir of his Body, etc. Here he shall not have Tail general to the Heirs of his Body, but to the Heirs males of his body, for that was the express limitation, and the other after but implication. So 16 Eliz. Dyer 333. in Chapman's Case: But our Case is better, for that there are not words sufficient to warrant any implication, for nec in veritate, nor in common speech was it ever taken for a Manor. 27 H. 6. 2. 22 H. 6. 39 Green Acre may pass by the name of a Manor, although it be but an Acre of Land, because it is known by such name. In 27 H. 8. a man having suffered a common Recovery to his use, willed that his Feoffees should sell, etc. So in Chapman's Case, a man in his Will limited a Remainder to his Family, there it is taken, the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter, in truth she being a Bastard, she shall have it, because she is known by the name of Daughter. So if there be Grandfather, Father and Son, the Father dyeth and the Son gives Lands to his Father and his Heirs, the Grandfather shall have it, for that the Son so called him. 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted, having Issue a Son, the Son shall not have the Land, for the word (Heir) intends one who may inherit, but he cannot, because a man attainted cannot have an Heir: And that is a stronger Case than our Case, in which there is not any affinity with a Manor, for it is but a sum in gross, but if it had been an Acre of Land, peradventure it should have passed, but being Rend, Common, Estovers, or other Profits, they cannot pass, for they have not any resemblance to the Manor; but peradventure a man having a Manor parcel in Demesn, and parcel in Services if he alieneth his Demesns, and afterwards deviseth his Manor, the Services will pass. Gawdy, All the difficulty of the Case is this, If by the Devise, the rent out of Tremington shall pass, for if not, than the third part thereof cometh to Barker. And I conceive clearly, That the rent shall pass; for Wills shall have a favourable construction according to the intent of the Devisor, and no part thereof shall be void, if by any means it may be made good; for intent then appeareth, that something should pass out of the Manor of Tremington, for otherwise a Clause in her Will would be frivolous. For it is precisely found by the jury, that neither at the time of the Will, nor at the time of her death, she had nothing of the said Manor of Tremington, but the said Rend of one hundred thirty and six pounds. Also it may be taken that she who devised was ignorant of the Law, and conceived that it was a Manor when she had Rents and Services out thereof, notwithstanding that, those who are learned in the Law know, that a Manor could not pass without there was two Suitors at the least, 21 R. 2. Devise 27. Lands are devised to one for life, the remainder Ecclesiae Sancti Andreae in Holborn, there it is holden in an Ex gravi Querela, that the Parson should recover, for otherwise the Devise should be void, if the Parson should not have the Lands; and in Wills, shall subserve and give place to the intent of the Party; and therefore if a man deviseth, that his Lands shall be sold for the payment of his debts, his Executors shall sell them, and to that intent the naming of them Executors is sufficient. Blow. Com. 523. in Weldens Case it is vouched to be adjudged; that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee, that it was a good Devise of the Lands to A. and yet then he had not, nor could have any Feoffees, etc. But the Party was ignorant of the Statute, and his intent to pass the Land was apparent, in that Case the words were as much impertinent to the matter, as in our Case, for there he had not any Feoffees, as here she hath not any Manor. Br. recites, That in 38 H. 8. it was holden by Baldwin, Shelly, and Morgan, that if a man who had Feoffees to his use would, after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments & Faits 12. Land cannot pass by the Deed of an House, for it cannot be parcel of an House; but an Acre of Land may be given by the name of a Carve, and a Carve of Land by the name of a Manor; and yet a Carve can be no more a Manor, than this rent: yea, Rents and Services more resemble a Manor, than a Carve of Land. It cannot be intended that her Will was here to pass the Manor itself, which was not in her, but in another. Also she by four years before had the rent, and therefore it shall be intended, that it was her meaning to pass the same, which she herself received, and no other thing: and although in the Devise the rent be specially named, and the Manor also yet the same shall not alter the Case; for if a man grant the Reversion upon an Estate for life, and by the said Deed grants the Land, and the Tenant attorns, and the Grantee deviseth all his Land, the Reversion shall pass without all question. If a man grant the Advowson of D. and in the same Deed, the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass. In Adam's Case, Blow. Com. 195. a man leaseth his Capital Message rendering rend, there the question is, If the Reversion or Rent shall pass: It was adjudged, That all which he had passed. As to that, that it cannot be levied out of the Rent, for that no place is therein of Distress; I say, that she did not know whether a lesser rent might be paid out of a greater rent, and 1 H 4. Multure was granted reserving rend, and the Grant was good. The words of the Will are, All which Manors, Lands, and Tenements, etc. she devised to the Lord Mountjoy, and these words expound her meaning, for although the word (Rent) be not within the word (Manor) yet the words (Lands and Tenements) do comprehend it, and words subsequent in Wills may express the Premises. As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses, having three Brothers, devised the House in which A. inhabited to his three Brethren, and A. to dwell there, and they not to raise the rent, and devised the House in which B. his Brother dwelled to him, and that he pay to C. his Brother 3 l. for to find him at School, and otherwise to remain to the House; Proviso that the Houses shall not be sold, but shall go to the next of the Name and Blood which are Male, and died. B. his brother died without Issue, the eldest of the two middle brothers entered, and had Issue a Son and died. It was a Question, If the Son or the middle brother should have the House: And it was holden that the Son of the eldest should have it in Tail, which Exposition was by reason of the words in the Proviso, that it should not be Sold, and that it should go to the Heirs Males. Shuttleworth, The rent shall not pass by the Devise, for the construction of a Will aught to be according to the words, or according to the intent collected out of the words, and not by a thing out of the Will; for then a stranger shall be the maker of the Will of another: And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass, it ought to have apt words, and not the name of a Manor. And thereupon he put the Case, that where one deviseth certain Lands to one, and afterwards his Goods, Leases, and other things to another: All his Goods and Terms shall pass, but not his Lands, for that there wanteth apt words to pass them, for the word (other things) shall not pass them, and this set order ought to be observed, for the avoiding of confusion: And the Rent and Services shall not pass for the two parts, admitting the words sufficient, for they cannot be divided: But Periam said, That the rent might be divided. Anderson said, That it should be but a Rent-seck: Periam said it was a Rent distrainable of Common Right, but Anderson doubted of it; but they all agreed that it might be divided, but there should not be two Tenors. Fenner, The Rent should pass by the Devise of the Manor, for there is do difference betwixt a Manor and a Seignory in gross amongst Laymen; and then their intent shall be taken, although it was not written by apt words; for in Grants a Reversion shall be taken for a Remainder, and à Fortiori a Devise. And 7 E. 3. a Manor shall pass by the name of a Knight's Fee; and 19 H. 8. a Wood shall pass by the name of Land, and 38 E. 3. by grant of totam terram which A. held in dower, the Reversion shall pass. Afterwards in Mich. Term the Plaintiff discontinued Action. And Periam told me, I being at his House, that the Opinion of the Court was against the Plaintiff, and if it had not been discontinued, they would have given judgement accordingly: Now this was the intent of the Lord Mountjoy. The Marchioness had devised all her Lands, and had not left any thing to her Heir, for which Case the Heir of the Marchioness entered into the third part of the Manor of Cauford (of which the Lease upon which the Ejectione firmae was brought, was made by the Lord Mountjoy to Insley) and into the third part of the residue of the whole land, now his meaning was, That if the rent was not well passed by the name of the Manor, than the same descended to the Heir, which was sufficient for him: For the Special Verdict found also, That the rent was the third part of the value of the whole Land of the Marquis: So that thereupon it may be collected, That if a man hath three Manors, some of them holden in Capite, and of equal value, and he deviseth two of them, and suffereth the third to descend, that the Devise is good for every part of the two Manors, and the Heir shall not have the third part of each Manor. Pasc. 28 Eliz. In the Common Pleas. CLXIII. Spring and Lawsons' Case. ONe recovered in an Ejectione firmae, and afterwards the Defendant made a new Lease for years, and he who recovered ousted him, and he brought an Ejectione firmae: and the other pleaded the former Recovery. It was holden a good bar by all the justices, but Windham and Periam, and by them the same is no Estoppel, for the Conclusion shall be judgement if Action, and not judgement if he shall be answered: And although that it be an Action personal, and in the nature of a Trespass, yet the judgement is quod habeat possessionem termini sui, during which Term the judgement is in force, it is not reason that he should be ousted by him against whom he recovered, for so Suits should be infinite; and by Rhodes an Entry pendent the Writ shall abate it. CLXIV. Hil. 29 Eliz. In the King's Bench. AN Action of Covenant was brought against one who had been his Apprentice; The Defendant pleaded that he was within age: The Plaintiff maintained his Action by the Custom of London, where one by Covenant may bind himself within age: Exception was taken to it, that that was a Departure: For 18 R. 2. an Infant brought an Action against his Guardian in Socage, who pleaded that the Plaintiff was within age. The Plaintiff did maintain his Declaration, That by the Custom of such a place an Infant of 18 years might bring account against his Guardian in Soccage, and it was there holden to be no departure. Wray Chief justice was of Opinion, that it was no departure; for he said, It should be frivolous, to show the whole matter in his Declaration: viz. That he was an Infant, and that by the Custom he might make a Covenant which should bind him. But Quaere of the Matter, and of his Opinion, for that many learned Lawyers doubted much of it. And vide the Case in 19 R. 2. of the Guardian in Soccage. Mich. 29 & 30 Eliz. In the King's Bench. CLXV. Savage and Knights Case. ERror was brought upon a judgement given in Leicester in Debt; Tanfeild assigned Error, because in that Suit there was not any Plaint, for in all Inferior Courts the Plaint is as the Original at the Common Law, and without it no Process can Issue forth, and here upon this Record nothing is entered; but only that the Defendant Summonitus fuit, etc. and because the first entry ought to be A. B. Queritur versus C. Clench, a Plaint ought to be before any Process issueth; and the Summons which is entered here is not a Plaint, and for that Cause the judgement was reversed: It was said, That after the Defendant appeared, a Plaint was entered: But it was answered, That that did not help the matter, for there aught to be a Plaint out of which Process shall issue, as in the Sovereign Courts out of the Original Writs. 28 Eliz. In the Common Pleas. CLXVI. Grindal Bishop of Yorks Case. GRindal Archbishop of York made a Lease for one and twenty years, another Lease for years of the same Land being in being, not expired by four years and died; and in time of vacation, the Dean and Chapter confirmed it. Clench, It is a good confirmation: A Bishop makes a Lease for years, reserving the ancient rent but where it was payable at four Feasts of the year, it is now reserved payable once in the year, the same is within the Letter of the Statute, but not within the intent; the same Law, if the Rent before was usually reserved to be paid upon the Land, now it is reserved to be paid at any far remote place. And he said, that although his lease was in possession, yet not to take effect before the four years of the former Lease are expired, cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it; for he to whom it was made, had but a right to have the Land; and he could not surrender. And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel. Periam, At the Common Law a Bishop, with the Confirmation of the Dean and Chapter, might have made a Feoffment Gift in Tail, and a Lease for any Term of years; and he spoke much, What shall be said the Possessions of a Bishop: And therefore, if a Bishop disseiseth another of certain Lands, and makes a Lease thereof under the Seal of his Bishopric, it shall be now his Seal and it shall be his election in what capacity he will take, and then this Land is to be reputed parcel of the Possession of his Bishopric. Mich. 29 Eliz. In the Common Pleas. CLXVII. Ho and Hoes Case. JOhn Hoo brought a Writ of Intrusion against Richard Hoo, depending which Writ, the Demandant prayed Estrepement, and had it, and declared upon it, scil. That the Tenant after the Prohibition fecit Vastum, Estrepementum, in prosternendo, etc. To which the Tenant pleaded, Not Guilty: But the Plea was not allowed by the Court, for there is no Issue in this Case; but he might to plead Quod non fecit vastum, etc. after the Prohibition. 29 Eliz. In the Common Pleas. CLXVIII. Clinton and Bridges Case. DEbt; The Condition was for performance of an Award, which was to pay 10 l. to the Plaintiff, and to do divers other things: The Defendant pleaded Quod perimplevit Arbitrium, and shown how the Plaintiff assigned for a Breach, that the Defendant had not paid the 10 l. The Defendant rejoined that he rendered it to the Plaintiff, and he refused it. It was the Opinion of Dyer, that the same is a Departure, for in the Bar, the Defendant pleads that he hath performed the Award, and shows how; and now in the rejoinder a Tender and Refusal, which is not a performance of the Award, although it is not any Breach of it. 29 Eliz. In the Exchequer. CLXIX. The Bishop of L's Case. Tenors. THe Case of the Bishop of L. the King Lord, Mesne and Tenant, the Mesnalty is holden in chief, and the Tenancy by Knight's Service; the Manor escheats by Attainder: If the Tenancy should be holden in Chief was the question. Manwood, It hath been holden, that no Tenure in Capite may be, if not by the creation of the King: And he said, that if before the Statute of Westminster 3. the King's Tenant in Capite had made a Feoffment to hold of him, so as now there is Lord Mesne and Tenant; and afterwards the Mesnalty came to the Crown by Attainder, etc. If by the coming of the Mesnalty to the Crown the signory Paramount be extinct, than the Tenancy is not holden in Capite; but they have taken a difference where the Mesnalty comes to the signory, and where the signory comes to the Mesnalty. But he said it was a good Case. 29 Eliz. In the Exchequer. CLXX. Pigotts Case. Assignment of Debts to the King. PIgott Collector of the Subsidy granted by Parliament holden 28 Eliz. and by reason thereof indebted to the Queen, (one B. being indebted to him) assigned the said debt to the Queen for parcel of her debt: upon which Process issued out against B. and now, at the return of the Process, Cooper Serjeant, moved in the behalf of B. that the Assignment was not good. 1. There was no such Parliament holden 28 Eliz. 2. No assignment of Debt to the Queen is effectual, where the Goods and Lands of the Queen's debtor are sufficient, but here constat de claro, that Pigott is sufficient: As to the matter of the Parliament, the truth is, that the Parliament was begun in October 28. But no Session was then holden, but it was adjourned to Newbury 29 Eliz. But if a Session had been holden, one ought to say it was Prorogued. Fenner, There is not any Authority in our Law for such assignments of Debt to the Queen. Manwood, The Parliament is October 28 Eliz. and so is the Roll, and the Record of the Parliament: The Writs of Parliament were returned in October 28 Eliz. But then the Queen adjourned the Parliament; for there was no Session: and although it was adjourned, yet the first day of the Parliament was in October: And such was the Opinion of all the justices. 29 Eliz. In the Exchequer. CLXXI The Queen and Pains Case. AN Information was exhibited against pain Treasurer of the Records in the King's Bench, Privilege. upon the Statute made against the buying of Cattle, and he came and demanded Privilege. Manwood, It hath never been seen, that such Privilege hath been granted against the Queen, Vide 21 H. 6.22. in a Decies tantum. by the better Opinion the Party shall have the Privilege. Some said that this is not like to the Case where the Queen only is Party, for in such Case Attaint doth not lie against the jury which have found for the Queen; contrary where the Suit is tam pro Domina Regina quam, etc. Manwood, The Law is not so, for an Attaint lieth where the Queen alone is Party. Tanfield, who was of Counsel with pain, showed to the Court a Precedent 29 Eliz. where one tam pro Domina Regina quam, etc. prosecuted a Suit in the City of Oxford, upon a penal Statute, and the Defendant claimed the Privilege of the Common Pleas, being an Officer there, and by the Award of the Court, the Privilege was allowed him. Manwood, The Suit upon the penal Statute was in an Inferior Court. But show to us a Precedent where the Courts are equal. CLXXII. Mich. 30 Eliz. In the Common Pleas. A Poor man was ready at the Bar to wage his Law; and upon examination it was found, that the Defendant was indebted to the Plaintiff ten pounds, to be paid at the Feast of Christmas; and that upon communication between them it was agreed, that the Defendant should pay to the Plaintiff at the said Feast 5 l. in satisfaction of all the Debt due to the Plaintiff; and as to the other 5 l. that he should be acquitted of it: Upon this matter the justices were clear of Opinion, that the Defendant ought not to be admitted to wage his Law, for notwithstanding that bare communication, the whole Debt remained due not extinguished by the communication; for 5 l. cannot be a satisfaction for 10 l. but contrary of a collateral thing in recompense of it, etc. And satisfaction and agreement, to pay 5 l. before the said Feast of Christmas in satisfaction of the whole 10 l. Upon such matter shown, the Court was of opinion, that the Defendant might be admitted to wage his Law. CLXXIII. Mich. 30 Eliz. In the Common Pleas. IN a Replevin, the Defendant avowed for damage pheasant: Upon which Issue was joined and found for the Advowant: and Damages assessed, and a Retorno Habendo issued, upon which the Sheriff returned Elongata: upon which a Withernam was awarded. And now the Plaintiff came into Court, and tendered in Court the Damages assessed by the jury, Withernam. and prayed a stay of the Withernam, and cast the money into Court. But the whole Court was clear of Opinion for the stay of the Withernam upon that matter only: because in this Case the Plaintiff ought to be fined, Fine for Contempt. because he had essoigned his , which is a contempt, wherefore the Court assessed a Fine upon him of 3 s. 4 d. and then the Plaintiff had his prayer and request. Mich. 37 Eliz. In the Common Pleas. CLXXIV. Germies' Case. 2 Leon. 119. 1 Leon. 87. Assets. IN Debt upon an Obligation against A. as Executor, the Case was, That the Testator of A. by his Will appointed certain Lands, and named which should be sold by his Executors, and that the money thereof arising should be distributed amongst his Daughters, when they had accomplished the age of one and twenty years; the Lands are sold accordingly, and if the moneys thereof coming being in the hands of the Executor, should be Assets to pay the Debts of the Testator, was the question. It was the clear Opinion of the whole Court, that it was not Assets, for that that money is limited to a special use. CLXXV. Mich. 29 Eliz. In the Common Pleas. Alien Purchaser. THis Case was moved to the Court; An Alien purchased Lands in Fee, the Queen confirmed them to the Alien, etc. Office is found, if the Confirmation should bind the Queen was the Question. Some conceived it should: For by Anderson Chief justice, when an Alien is enfeoffed, he takes by the Livery the Fee-simple, of which he shall be seized until Office found, and a Praecipe quod reddat lieth against him. Fenner, An Alien and Denizen joint-tenants are disseized, they shall both join in an Assize, vide 11 H. 4.26. And he said that the wife of the King takes a Husband being an Inheretrix, they have Issue, Office is found, the Husband shall be Tenant by the Courtesy, which see 33 E. 3. Fitz. Traverse 36. It was argued on the other side, That the Estate of the Alien is so weak, that a confirmation cannot enure upon it for an Alien cannot take, but to the use of the King, and cannot be enfeoffed to another's use, and if he be, such use is void. For there is not a sufficient seisin in an Alien to carry an use. And it hath been adjudged on Forset Case: Where an Alien and the said Forset were joynt-purchasers, and the Alien died, that Forset should not have the whole by Survivor, but that upon Office found the Queen should have the moiety, Vide 11 Eliz. Dyer 283. Mich. 30 Eliz. In the Common Pleas. CLXXVI. Jermine and Arscots' Case. THe Case between Jermine and Arscot was this: A seized of Lands in Fee, had Issue six Sons and one Daughter, and devised the Manor of, etc. parcel of his said Lands to J. S. for ninety years, if the said J. S. and G. his Wife, or any of them should so long live, the remainder to P. his eldest Son, and the Heirs males of his Body, the remainder to his other Sons in tail, the remainder to his Daughter. Provided, That if the said P. his Son, or any of the Sons of the Devisor, or any of the heirs males of their bodies, should endeavour by any Act or Thing to alien, bargain, or discontinue, etc. that then after such attempt or endeavour, and before such Bargain and Sale, etc. were executed, that the estate of such Person attempting, should cease, as if he were naturally dead, and that then the premises should remain and come to such person to whom the same aught to come, remain, or be by the intent and meaning of his Will, and died: P. levied a Fine of the Manor, he in the next remainder entered, and claimed the Land by force of the Devise. This Case was this Term argued by Walmesly Sergeant, that an Estate tail cannot cease, for it is an Estate of Inheritance; and here is not any limitation, for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender, but a Limitation determines the Estate utterly, which is not here: but here it appeareth as well by the meaning of the Devisor, as by the words of the Devise, that the Estate tail upon such act should be suspended, and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee, and that it shall cease during the Nonage of every Heir, the Rent is but suspended between the Parties and Privies to the Gift; as in the Case of Littleton of Reentry and Retainer quousque; but that a Stranger should re-enter and retain quousque, that cannot be: And in the Case of Scholastica reported by Plowden, the Estate tail by such Offence is determined by the limitation: But in our Case by the meaning of the Devisor only suspended, so our Case is not like to that Case. Shuttleworth to the contrary; The purpose of the Devisor appeareth to be, the continuance of the Land in the name and Family of the Caries; and as to the difference of ceasing and suspending of an Estate tail, the same is not to the purpose, for the Tenant in tail himself may suspend his Estate tail, therefore à fortiori the Donor upon the Creation of the Estate tail: As by Littleton: Tenant in Tail grants totum statum suum, the Estate tail is thereby suspended; and by Anderson, if in such a Case, after such a grant, Tenant in tail levy a Fine in our Case, If Tenant in tail offend: and the party to whom the next interest is limited enters, and after the Offender levies a Fine to a Stranger, there, although his Estate was determined by the offence, yet the Estate tail is bound by the Fine. Ad quod caeteri Justiciarii murmurabant. Tenant in tail hath Issue two Sons, the eldest in the life of his Father levieth a Fine, and after the Father dieth, the Estate tail is bound; contrary if the Father had survived his eldest Son: And afterwards in the end of this Term judgement was given against the Plaintiff, for by the Will here is a good limitation, and an estate to cease upon an act, and upon another contingent to be revived, is good enough, Vide 30 E. 3. 7. A Lease for life rendering rend, and if the rent he behind, that the Lessor shall return quousque agreement be made; so as a Freehold may cease and rise again according as the same is limited: And all this was agreed by Rhodes, Periam, and Windham; and afterwards Walmsley for the Plaintiff, took an Exception to the Bar, for that the Defendant pleaded Quoth Petrus Cary tempore levationis finis praedict. non habet exitum, and doth not say, that tempore quo ipse Henricus clamabat reversionem praedict. the said Peter had not Issue; for he said if Peter had Issue, when Henry claimed the Reversion, nothing had vested on him by the said claim: But all the Court besides Anderson, said, that needed not be, but if the matter had been such, the same should come on the part of the Plaintiff. Also they said, That the Estate was vested in Henry without claim, and although after the Offence committed, and before claim Peter have Issue, yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied: for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation. CLXXVII. Mich. 30 Eliz. In the Common Pleas. Alien suffers a common Recovery. 9 Co. 141. LAnd was given to an Alien in tail, the Remainder over to another in Fee, the Alien suffered a common Recovery, and died without Issue: All this matter was found by Office. It was moved, That this Office should have return, so as upon the matter, the Alien was not Tenant of the Land at the time of the Recovery suffered: But the whole Court held the contrary, and that the Recovery was good, and should bind him in the Remainder. Mich. 30 Eliz. In the Common Pleas. CLXXVIII. Seixtbark and Percies Case. EJectione firmae of Lands in Knolton and Woodland; the Parties were at Issue, and the Venire facias was of Knolton only, and it was found for the Plaintiff. It was showed in stay of judgement, that the Venire facias was not well awarded, for it ought to have been De vicineto de Knolton & Woodland, which was granted by the Court: And that that defect was not relieved by any Statute, for it is a Mis-trial, and for that cause judgement was stayed, and a Venire facias de novo granted. 30 Eliz. In the Common Pleas. CLXXIX. The Provost of Queen's College in Oxford's Case. THe Provost, Fellows, and Scholars of Queen's College in Oxford, are Guardians of the Hospital, and Meason de Dieu in Southampton, and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of Praepositus Socii & Scholar's Collegii Reginalis in Oxonia Gardianus Hospitalis, etc. And in an Ejectione firmae upon that Lease, it was found for the Plaintiff. It was objected in Arrest of judgement, That this word (Gardianus) ought to be in the Plural Number (Gardianis) for the College doth consist of many persons, and every one of them capable; and not like to Abbot and Covent: The Court was all of Opinion that the Exception is not to be allowed, but that as well the Lease as the Declaration were both good, for the College is a Body, and as one Person, and so it is as well Gardianus. 30 Eliz. In the Common Pleas. CLXXX. Green's Case. AN Action upon the Statute of Hue and Cry was brought by Green: The Case was, Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain moneys to carry the same from Bristol to London, in which journey the Servant was rob: upon which matter the Master brought his Action. It was moved, That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action, because he was not examined twenty days before the Action was brought, but the Exception was disallowed, for the Court was clear of Opinion, that the Master should not be examined, but the Servant. CLXXXI. 30 Eliz. In the Common Pleas. THis Case was moved upon the Statute of 1 and 2 Phil. and Mary, cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford; and Queen Mary by her Letters Patents made the said Town a County. And now a Distress was taken in the residue of the said Hundred, and brought into the Town of Coventry, and if that be within the Statute was the question. It was holden by the Court clearly, That now the Town of Coventry is exempted out of the Hundred aforesaid, and is a thing by itself, and it is a good challenge for the Hundred of Offley, that the juror challenged dwells in the Town of Coventry, for now it is not parcel of Offley as to the King: But as to the Lord of the Hundred, the said Town remains parcel of it, notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred; but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred, the Citizens shall not be charged. 25 Eliz. In the Common Pleas. CLXXXII. Dolmans' Case. A. Seized of a Manor to which two parts of the Advowson was appendent, presented, and afterwards aliened the Manor cum pertinentiis, the Alienee presented and purchased the third part of the Advowson, and presented again one J. S. Chaplain to the Earl of Rutland, who had a dispensation, and took another Benefice, and was inducted 1 Eliz. and died 11 Eliz. The Queen presented for Lapse, and her Clerk was instituted and inducted, the Alienee Lord of the Manor died seized inter alia; this Manor was allotted to the Wife of Dolman for her part; and he brought a Quare Impedit. It was moved, If Dolman should not join in this Quare impedit with her who had the third part; and by Walmsley, he need not, Vide 22 E. 4. 8. By Brian, If an Advowson descend to four Coparceners, and they make Partition to present by turns, and the third presents when the second ought, for that time his presentment is gone, but when it comes to his turn again, he shall present; which proves that they are several Tenants. CLXXXIII. Mich. 26 Eliz. In the Common Pleas. ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint, in the nature of a Writ of Right: It was moved in the Common Bench, If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery, and to put him who recovered in possession with the Posse Manerii, Posse Manerii & Comitatus differ. as in such Case at the Common Law with Posse Comitatus; it was resolved clearly that force in such Cases is not justifiable, but by Mandate out of the King's Courts. Hil. 29 Eliz. In the Common Pleas. CLXXXIV. Anne bedingfield's Case. DOwer was brought by Anne Bedingfield against Thomas Bedingfield; the Tenant brought out of Chancery a Writ de Circumspect agatis containing this matter, that it was found by Office in the County of Norfolk, that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk, and held the same of the Queen in Chief by Knight Service, and thereof died seized, the Tenant being his Son and Heir apparent, and of full age, by reason of which the Queen seized as well the said Manor as other Manors, and because the Queen was to restore the Tenements tam integre as they came to her hands, it was commanded them to surcease Domina Regina inconsulta: It was resolved, that although the Queen be entitled to have Primer Seisin of all the Lands whereof the Husband died seized, yet this writ cannot extend to any Manors not found in the Office, for by the Law the Queen cannot seize more Lands than those which are found in the Office, and therefore as to the Land found in the Office, the Court gave day to the Tenant to plead in chief. And it was argued by Gaudy Sergeant for the Tenant, that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin. And cited the Case 11 H. 4. 193. And after many Motions, the Court clearly agreed, that the Tenant ought to answer over, for the Statute of B●gamis, cap. 3. pretends that in such Case the justices shall proceed notwithstanding such Seisin of the King, and where the King grants the Custody of the Land itself 1 H. 7, 18, 19 4 H. 7. 1. à multo fortiori against the Heir himself, where he is of full age, notwithstanding the Possession of the King for his Primer Seisin, by the Statute of Bigamus, where the Heir was of full age, there the wife could not be endowed in the Chancery: But now per Prerogativa Regis, cap. 4. Such women may be there endowed, si Viduae illae voluerint. And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril, for the Demandant might sue at the Common Law if she pleased, Vide Cook 9 Part Acc. CLXXXV. Savages Case. ONe Savage was presented to a Benefice, and afterwards took another, and then purchased a Dispensation (which was too late) and then was qualified, and afterwards accepted of the Archdeaconry of Gloucester; and Underhil, who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of leonard's Reports Sect. 442. Ideo Quaere there. CLXXXVI. Pasc. 26 Eliz. In the King's Bench. Husband and wife Copyholders for Life, the Husband surrendered to the Lord, who granted the Land over by Copy to a Stranger, the Husband died, the Wife recovered and entered, and surrendered to the Lord, and by Wray, the Stranger to whom the Lord granted it, after the Surrender by the Husband, should have the Land, and not the Lord himself against his own Grant. Pasc. 28 Eliz. In the Common Pleas. CLXXXVII. Chomley and Congees Case. CHomley brought Trespass of Assault and Battery made to his Wife against Coney, and upon the general Issue it was found for the Plaintiff: It was moved in Arrest of judgement, that the Action was not well brought, for the same being an Action of Trespass done to the person of the wife, the Writ ought to be brought and prosecuted in both their Names; for now, if judgement be given for the Husband, and he die before Execution, the Wife to whom the wrong was done should not have Execution, but the Executors of the Husband; and afterwards upon advice the Plaintiff had judgement to recover, Vide Cont. 9 E. 4. 51. 38 H. 6. 25. Pasc. 28 Eliz. In the Common Pleas. CLXXXVIII. Blithe and Colegates Case. Vide this Case Reported by Cook 2 Part of his Reports. REplevin by Blithe and Colegate, who made Conusans as Bailiff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage pheasant, and upon a Special Verdict the Case was, That the said Eliz. was seized, and took to Husband Christopher Kenne, and by an Indenture made by the said Eliz. without the assent of her said Husband, by the name of Elizabeth Beckwith, bearing date 14 March, 14 Eliz. declareth the uses of a Fine to be levied etc. 1. To the use of the said Elizabeth for life, without impeachment of Waste, and after to the use of the Conusees for their lives, and after to the use of the said Elizabeth and her Heirs: And that afterwards the said Christopher Kenne, before any Fine levied in Feb. 20 Eliz. by Indenture between himself and the said Elizabeth his Wife of the one part, and R. W. of the other part, without the consent of the said Elizabeth declared, that the uses of the said Fine so to be levied, should be to the use of the said Christopher and Elizabeth for life, etc. And afterwards the said Fine was levied by the Husband and Wife; and the only Question upon the matter was if the uses declared by the Wife, or the uses declared by the Husband should stand. It was argued by Shuttleworth Sergeant, that the uses declared by the Husband should stand, and that the Declaration by the Wife should be rejected, for a Feme Covert is not sui juris, but is sub potestate v●ri. And therefore ●7 Ass. 17. a Feme Covert without her Husband acknowledgeth a Fine, the Husband shall avoid it; and as to the Declaration of the uses, it is no other thing but the showing of the meaning of the Parties to the Fine, how and in what manner the Land of which the Fine is levied, shall be disposed of by the Fine, but such a power cannot be in a Feme Covert: For if an Infant levy a Fine, and declare the uses by Indenture, the Declaration is void, and the Fine shall be to his own use, and that was adjudged in the Court of Wards: The same Law in case of a man of Non sanae memoriae: and if an Idiot levy a Fine, and declare uses upon it, the Declaration is void, and the Fine shall be to his own use, and that Case also hath been adjudged in the Court of Wards: And by intendment of the Law, every Wife is at the disposition of her Husband, as in a Praecipe quod reddat against the Husband and Wife, the Wife makes default, it shall be accounted the default of the Husband, for the Law intends that the Wife is ameanable by the Husband. 21 Ass. The Husband seized in the right of the Wife, made a Feoffment in Fee, and in making of Livery his Wife interrupts him, it was not any interruption or impediment quo minus the Livery operetur, for cui ipsa in vita contradicere non potuit, etc. So in a Praecipe quod reddat against the Husband and Wife, the Husband pleads one plea and the Wife another, the Plea of the Husband shall be admitted, 33 H 6. 43. 89 Ass. 1 And the Husband may in some case prejudice his Wife in point of Inheritance, as by Session, Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground, where it shall be said the folly of the Wife to take such a Husband: If the Husband be seized in the right of his Wife they sell the said Land, and for Assurance levy a Fine to the Vendee, now the Husband alone shall have an Action of Debt for the money upon the Sale which proves that it is the Sale of the Husband alone, which see 48 E. 3. 18. Fenner Sergeant contrary: And first he confessed that the Declaration by the Wife is utterly void and also the Declaration by the Husband; and therefore when the Husband and Wife levy a Fine the Conusee in judgement of Law is in by the Wife, and not by the Husband, so as the Husband as to the right is a Stranger to the Land, and to the Estate which passeth by the Fine, although he be Party to the Fine, for that is not for any Interest which he hath in the Land, but for the conformity of Law, which disables a Wife to levy a Fine without her Husband, and therefore it is not any reason that the husband alone shall be received to declare the uses, for he is no Proprietor of the Land in right especially, forasmuch as in account of the Law, the whole passeth from the Wife: And the Law in divers Cases frames its judgement according to the possession of the Wife, and that in acts done by the Husband 14 H. 8. 6 where A seized of a Rent-charge in Fee issuing out of the Land of the Wife, A releaseth the Rent to the Husband and his Heirs, the same shall enure to the Wife, Vide 38 E. 3. 10. From such Cases the Law respects the nature of the Seisin and the manner of the possession. And as to the Case vouched out of Dyer 12 Eliz. where the Husband and Wife were seized of a Message to them, and to the Heirs of the Husband, they suffer a common Recovery, and the Husband alone declareth the uses, the same is good, for in that Case the Fee was in the Husband, and always he who hath the Fee ought and may declare the use, if all who have interest will not join, and therefore if Lands be given to two, and to the Heirs of one of them, if they both join in a Fine he which hath the Fee may by himself declare the uses: But if there be two joint-tenants in Fee, they both aught to join in the Declaration of the uses, or otherwise make several Declarations of their several Moieties. So if Cestuy que use and his Feoffees join in a Fine, and make several Declarations, the Declaration of the Feoffees shall stand, for that the Land passeth from them. So if Cestuy que use and his Feoffees make a Feoffment in Fee 21 H. 7. And to that purpose he put the Case reported by Plowden 15 Eliz. 464. Husband and Wife seized in right of the Wife, they levy a Fine sur Conusans de droit come ceo, &c and the Conusee renders the Land to the Husband and Wife, and to the Heirs of the Husband, the Husband dieth, the Wife discontinues the Land, the same is not within the penalty of the Statute of 11 H. 7. For notwithstanding the Wife be now in by the purchase of her Husband, yet that purchase is not within the meaning of that Statute, because the Law respects the original Seisin which was in the Wife, and so it was adjudged. Vide Term. Mich. 30 Eliz. Pasc. 25 Eliz. In the King's Bench. CLXXXVIII. The Earl of Northumberlands Case. THe Earl of Northumberland brought Debt for Arrearages upon Account. The Defendant shown, that before the said Account, the Plaintiff of his own wrong imprisoned the Defendant, and he so imprisoned, assigned Auditors, and so the Account was made by Duress. It was holden a good Plea by the justices of both Benches. Pasc. 25 Eliz. In the Common Pleas. CLXXXIX. Clark and Kemptons' Case. IN Ejectione firmae the Case was, 1 Leon. 141. Smith and Burds Case. Co. 10 Rep. 129. b. Payment of Rents. The Defendant leased for years to the Plaintiff, rendering rend, payable at Michaelmas, and the Annunciation, or fourteen days after. Et si contingat the said rent to be behind post aliquod terminorum vel festorum praedictorum in quo solvi debet by the space of 14 days, post aliquod festum predict. that then, etc. It was adjudged in this Case, that the Lessee had fourteen days after the said fourteen days mentioned in the Reservation without danger of the penalty of the condition, and the last words post aliquod Festorum predict. for the contrariety shall be rejected. Pasc. 31 Eliz. In the King's Bench. CXC. Harris and Whiting Case. DEbt upon an Obligation by Harris and his Wife, as Executors of Giles Capel against Whiteing, the Condition was that if the Obligor before the Feast of Pentecost pay such a sum, so as the Obligee be ready at the payment thereof to enter into a Bond of 200 l. with Sureties to purchase such Land, etc. that then, etc. The Defendant pleaded that he was ready to pay, etc. and that the Obligee was not ready to enter into such Bond ut supra. The Plaintiff Replicando said, that he was ready absque hoc, that the Defendant was ready to pay. It was moved that the Traverse was not good, for the first Act here was to be done by the Obligee, viz. to enter into the Bond, ut supra, for otherwise the Obligor had not any means to compel the Obligee to enter into it. But by Wray Chief justice, the first Act is to be done by the Obligor, and at the Payment the other party is to do that which to him belongs to do. Trin. 29 Eliz. In the King's Bench. CXC. Ralph Morris Case. RAlph Morris and his wife libelled against one in the Ecclesiastical Court, for that the Defendant called the Wife of the Plaintiff Veneficam, Sortilegam, & Incantatricem Daemoniorum. And now came the Defendant into the King's Bench, surmising that the matter of the Libel is determinable by the Law of the Land, and thereupon prayed a Prohibition; and it was holden, that although the Offence of Witchcraft be in some cases punishable in our Law, yet the same doth not take away the jurisdiction of the Ecclesiastical Law; and to call one Witch generally, an Action doth not lie in our Law, as it hath been adjudged. But to say He hath bewitched such a one, an Action doth lie: And by Wray, Witchcraft, which is made Felony by any Statute, is not punishable by the Ecclesiastical Law; but in case of Slander upon such a Witchcraft, such slanderous words are of Ecclesiastical jurisdiction; and for Witchcraft which is not Felony, the Ecclesiastical Court shall punish the party; and afterwards in the principal Case a Consultation was awarded. Trin. 29 Eliz. In the Common Pleas. CXCI tyrrel's Case. TYrrel Warden of the Fleet of an Estate of Inheritance, let the said Office for years and afterwards is condemned in London in many Actions of Debt, and is there detained in Execution for the sum of fourteen hundred pounds, and now one Iden sued the said Tyrrel in the Common Pleas, in an Action of debt for 50 l. and had judgement to recover, and thereupon the said Tyrrel is brought to the Bar, and Iden prays he be committed to the Fleet in Execution for his Debt. It was first moved by the Court, if there was not a practice between Iden and Tyrrel for to deliver him out of the Compter in London to a more easy Prison etc. But it was moved by Fenner, who was of counsel with the Creditors in London, that it should be very dangerous to commit Tyrrel Prisoner to the Fleet, because he had the Inheritance of Custody of the said Prison, and if the Lessee under whose guard he shall be, surrenders his Interest; or if he doth not pay his Rent, so as in default thereof Tyrrel re-enter, or if that the Term expire before that the Creditors of Tyrrel be satisfied, then here is an Escape and discharge of Execution, and we are without remedy. But as to that it was said by Rhodes, Windham, and Anderson, That if the Lessee surrender it shall be an Escape in him, and he shall answer for the same. Afterwards by Order of the Court Tyrrel was committed to the Fleet in Execution, and the Sheriffs of London discharged. Mich. 29 Eliz. In the Common Pleas. CXCII. Owen and Morgan's Case. THe Case between Owen and Morgan which was agreed Trin. 29 Eliz. was this, Richard Owen was seized of, Ante 26. Post 222. etc. and levied a Fine to Owen and Morgan, and to the Heirs of Owen, and they granted and rendered the said Land to the said Richard and Lettuce his Wife (not Party to the said Writ of Covenant, nor to the Conusans) and to the Heirs of the body of the said Richard, the Remainder over to the said Owen now Demandant in Fee: The Husband alone without the Wife suffered a Common Recovery, the Wife died, the Husband died without Issue. If this Recovery by the Husband only should bind the Remainder, was the Question: And now the Lord Anderson declared openly in Court for himself, and in the name of his Companions, the other justices, that the Demandant ought to have judgement, & that the said Recovery should not bind the Remainder: But first he spoke to the Fine itself, for the Wife is not named in the Writ of Covenant, nor the Conusans but in the Render, the Land is rendered to the Husband and Wife, and the Heirs of the body of the Husband, and he said a Scire facias did lie upon the Fine well enough, for the Fine is not void, but only erroneous, and being in its force, this Writ doth well lie. And he cited to this purpose 7 E. 3. Fitz. Sc. fac. 136. where upon such a Fine levied, and such Exception ut supra taken to it: To which it was said by Herle, that forasmuch as the Fine is excepted, and yet in its force, we ought to grant Execution, and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant, but every Stranger may take by way of Remainder, and such was the Opinion of the whole Court: As to the matter in Law all the Court agreed, That notwithstanding the Recovery the Demandant should have Execution, for here the Land which by pretence of the said Recovery, shall be Recovered in value, cannot go to the Estate which is given, for the Estate given was to the Husband and Wife, and the Heirs of the body of the Husband, and then the Tenant against whom the Recovery was had was impleaded as sole Tenant, in which Case the Vouchee, when he comes in, is to warrant a sole Estate, but not another, but now the Land to be recovered in value shall go to the Husband alone, and the Wife shall have nothing, so as the true Estate is not warranted and so not answered: And he cited the Case of 38 E. 3. 5. in a Formedon, the Tenant vouched himself for to save the tail, and shown that one A. was seized, and gave the Land in Demand, to the now Tenant, and to E. his Wife in tail, which E. is now alive, and by award the Voucher was disallowed. Because it was there said by Knevyt, the Recovery in value cannot be according to the gift, 45 E. 3. 18. Tenant in tail discontinues, and takes back an Estate in Fee, is impleaded, and voucheth the Donor, he shall be ousted of the Voucher, for that he is in of another Estate, and afterwards the Plaintiff had judgement to have Execution. Mich. 33 Eliz. In the Common Pleas. CXCIII. Foles and Griffins Case. DEbt upon Obligation by Foles against Griffin; the Condition was That if the Obligee may enjoy certain Tithes demised to him by the Defendant, during his Term, against all Persons paying yearly the Rent of three pound, that then, etc. To which the Defendant said, that the Plaintiff did not pay the said Rent, etc. Beaumond Sergeant moved that the Plea is not good, but he ought to say, that the Plaintiff enjoyed the Tithes until such a Feast, at which time such Rent was due, which Rent he did not pay, for which etc. Quod Curia concessit. Mich. 33 Eliz. In the King's Bench. CXCIV. Young and Tailor's Case. IN Debt upon an Obligation upon Condition to perform the Arbitrament: (the Obligation was laid to be made in the Parish of Bow in London) and the submission was of all things depending between them; so that they made an Award of the premises before such a day: and said further, that no Arbitrament was made. The Plaintiff Replicando said, that the Arbitrators made an Award in the Parish of Pancras in Warda predict. and laid a breach, etc. The Defendant rejoined, that 300 l. was depending in Controversy between them for a certain thing of which no Arbitrament was made: upon which they were at Issue, and tried by a Visne of the Parish of Bow only, which passed for the Plaintiff. It was moved in stay of judgement, That the Trial was not good, for no place is alleged where the Controversy of 300 l. is depending▪ for which cause it shall be tried where the Bond and Arbitrament was made; to which it was said, That the alleging the place where the Arbitrament was made is superfluous; for which Cause the Trial is good: And also the Submission being conditional, the Award ought to be of all things submitted, or else it is void; contrary if it be no Condition, Vide Cook 8 Part, Baspoles' Case. Mich. 32 Eliz. In the Common Pleas. CXCU. The Queen and the Bishop of Lincoln's Case. THe Queen brought a Quare Impedit against the Bishop of Lincoln and others: And the Case was, That F. Bishop of Lincoln, Predecessor of the Defendant, was Patron of the Church and presented to the same, being void, one Garth, who being inducted, took another Benefice, by which, by reason of the Statute of 21 H. 8. the first Benefice became void, and remained void by the space of seventeen years, whereupon the Queen was entitled to present to the same by Lapse. The said F. then Bishop presented to the same, and afterwards was translated to Winchester, and the Defendant, now Bishop, was suffectus. And he certified into the Exchequer, that the Incumbent presented by the said F refused to pay his Subsidy, upon which he was deprived; and if now the Queen shall present by reason of her Title by Lapse, notwithstanding the plenarty after, or if the Title by Lapse of that Presentment of the Bishop was, etc. was a great Question: And the Case late adjudged between Beverly and Cornwell was cited; but there the Case was, that the Clerk presented (where the Presentment appertained to the Queen by Lapse) died, but here he is deprived, which may be the Covin betwixt the Ordinary and him. Fenner argued to the contrary, and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties; As the Queen hath a signory consisting of Homage, Fealty, and Rent, and the Queen grants the signory to a Stranger, reserving the Rent, and afterwards the Tenancy Escheats, the Rent is gone: The Queen leases for years, rendering rend to a Stranger upon Condition, who enters upon the Lessee, the Condition of the Queen is suspended. The Queen purchaseth Lands in Borough English hath Issue a Son, and dyeth seized he hath the Land now by descent; afterwards a younger Son is born, that Land shall be divested out of the possession of the King, and the Royalty of his person doth not alter the right of descent: And afterwards, forasmuch as the same deprivation is the act of the Incumbent, the refusal the act of the Ordinary himself, the sentence and not the act of God in the case before cited. It was the Opinion of the Court, That judgement should be given for the Queen. CXCVI Windham and Meads Case. WIndham brought an Action upon the Case upon the Common Law of England concerning Ostlers: The Case was, That the Servant of Windham brought his Master's horse to the Inn, and there it was stolen. To which the Defendant said, That the said Servant brought the said Horse to the said Inn to be put to Pasture, and thereupon the said Horse was put to grass, and was there stolen; it was ruled in that Case that the Innkeeper should be excused: but if the Innkeeper of his own head, without direction of the Owner, or his Servant, had put the Horse to grass, and afterward the Horse is stolen, there an Action upon the Case doth lie. Trin. 29 Eliz. In the Common Pleas. CXCVII. Neals Case. IN a false Imprisonment by Neal against the Mayor, Sheriffs, Citizens and Commonalty of the City of Norwich; the Original Writ was directed to the Coroners of the said City. And Exception was taken to the Writ, because it was not directed to the Sheriffs of the said City, but to the Coroners. Sed non allocatur, for the Sheriffs are parcel of the Corporation, as it is to see by the name by which they of Norwich are incorporated. And also it hath been adjudged, That a Sheriff cannot summon himself, and therefore by the Award of the Court, the Writ was allowed to be good. Trin. 29 Eliz. In the Common Pleas. CXCVIII Sir John Brome's Case. SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands, the King's Silver was entered, and the Conusans taken; but the Fine was never engrossed, and now he who claimed under the Fine came in Court, and prayed that the Fine might be engrossed, and the Court examined them upon their Oaths, to what use the Fine was levied, and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine? Upon which Examination it appeared fully to the Court, that the Party to whom the Fine was levied, was seized after the Fine, and suffered a Common Recovery of the Land, and that the said Land had been enjoyed according to the said Fine at all such times since, etc. Whereupon the Court commanded that the Fine be engrossed. Vide Acc. 8 Eliz. Dyer 254. Trin. 29 Eliz. In the Exchequer. CXCIX. The Lord Dacres and Philip Fines Case. THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite, levied a Fine thereof without Licence; 3 Leon. 261. and Process issued against the Tenants for Life; It was holden by all the Barons, that by Plea he should be discharged; it was holden, That if the Conusor had any other Lands ubicunque in Anglia, the Fine for Alienation should be levied upon them. But it was moved, If the Tenant should be driven to plead it, because it appears upon Record that the Conusor was but Tenant in Tail in Remainder, and that was in an Office containing such matter which was pleaded by another in another Cause before, by which Office it appeared, that the Lord Dacres was Tenant in Tail, the Remainder in Tail to Philip Fines; and now Fines had levied a Fine sur Conusans de droit, etc. and because the same appeared on Record, Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed. Trin. 29 Eliz. CC. Paston and Townsends Case. IN Trespass by Paston against Townsend, The Defendant pleaded that Tindal was seized in Fee by protestation and died seized, and the Land descended: To which the Plaintiff replied, and said &c, absque hoc that Tindal was seized in Fee, upon which they were at Issue. On the part of the Defendant to prove the Issue, it was given in Evidence to prove the Issue in his right, that the said Tindal long time before his death was seized, and aliened, and never after was seized: It was said that that Evidence did not prove the Issue for the Defendant, for the Seisin in Fee intended in the Issue is in the nature of a dying seized; and so Periam conceived that the Defendants Plea did not intent any other Seisin, a dying seized, and the dying seized is taken by Protestation, to avoid the doubleness. So as the Seisin upon which the Issue is taken aught to be intended a Seisin continuing until the time of the death of Tindal, and Seisin at large, or a general Seisin at any time during the life of Tindal, quod Anderson concessit. Trin. 29 Eliz. In the King's Bench. CCI Griffith and Prices Case. ERror by Griffith against Price, upon a judgement in Chester in Ejectione firmae, and the Error assigned was because the Original bore date 16 April, 28 Eliz. and the Plaintiff declared of an Ejectment 17 April, 28 Eliz. So as it appeareth, that the Action was brought before there was any cause of Action: and that was holden to be Error: And also Ejectione firmae is not a personal Action; and afterwards the judgement was Reversed. Trin. 30 Eliz. In the King's Bench. CCII Harris and Caverleys' Case. A judgement was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Wools; and upon that Error was brought in the King's Bench, quod nota, For this Writ of Error upon a judgement given in London ought to be sued before the Mayor, Vide ● N. B. 22, 23. And Wray asked, Wherefore the Writ of Error was brought here. To which it was answered by Dodding Clerk, that the Record was removed by Certiorari out of the King's Bench at the Suit of the Defendant, to the purpose to bring a Writ of Error, quod coram vobis residet. And the Error was assigned in this, that by the Statute of 18 Eliz. cap. 5. it is enacted, that upon every Information that shall be exhibited, a special Note shall be made of the Day, Month and Year of the exhibiting of the same into any Office, or to any Officer, who lawfully may receive the same: And here upon this Information there is not any such Note, according to the said Statute: And in truth, no Information may be exhibited, for there is not any Officer there appointed for that matter, for the entry in such Cases in that Court is, Talis venit & deliberavit hic in Curia Miloni Sands, etc. But in the Case at Bar, the Entry is, Talis venit & deliberavit in Curia, but without showing to whom. (But note that the words of the said Statute of 18 Eliz. are in the disjunctive, into any Office, or to any Officer) and that such Information shall not be of Record but from that time forwards, and not before, wherefore here this Information is not upon Record and then no judgement can be given upon it. Cook, This Information may be well sued in London, for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King: And the Court in London is a Court of Record of the King, and every Court of Record hath an Officer to receive Declarations and Pleas, and if it be delivered into the Office, it is good enough. 2. The Offence is laid in the Parish of Bow in Warda de Cheap, & alibi in Civitate London, and so there is not any place laid where the Offence shall be tried. Cook, This Alibi is a Nugation. Trin. 31 Eliz. In the King's Bench. CCIII. Peuson and Higbeds Case. IN Assumpsit, the Plaintiff declared, that in consideration that he by his Servant had delivered to the Defendant two Bills of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Rouen in Normandy, to his own use, the Defendant promised to pay to the Plaintiff 60 l. and upon this matter judgement was given; and now a Writ of Error was brought and assigned for Error, because it is not showed in the Declaration that the Bills were sealed, or that they were made to the Plaintiff, and here is not any consideration, for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse. Godfrey, If the money be not paid at Rouen to the Defendant, he shall have an Action upon the Case, for this is an Assumpsit in Law, which Wray concessit, for it is a mutual promise and agreement: And it was argued to the contrary, that here is not any sufficient consideration, for it doth not appear that the Defendant hath any remedy for to recover the money. And 13 Eliz. it was holden, that where the Plaintiff declared in an Action upon the Case, that in consideration that he had delivered a Bill of Debt to the Defendant, and hath made a Letter of Attorney upon it, etc. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff (notwithstanding that) might release the debt, or revoke the Letter of Attorney, and so defeat the Defendant of the whole profit, etc. that the Action upon the matter did not lie: Also for another cause the consideration is not sufficient, for it is illegal because maintenance; but if it was upon the consideration precedent it had been good enough: As if I be indebted to A. and B. is indebted to me, J. may assign to A. the debt which B. oweth me. Golding, Although the consideration be but of small value, yet it is good enough. And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it, yet it is good, and also though the consideration be Executory, yet it is valuable, for if the money be not paid at Rouen, the Defendant shall have an Action upon the Case against the Plaintiff: It was also objected that upon the Declaration it doth not appear that the Defend. if the two Bills be not paid, may have an Action upon the Case against the Plaintiff, for there is not any express Assumpsit on the Plaintiffs part, that the moneys due by the Bills to the Plaintiff shall be paid to the Defendant, for if it had been so, than it had been good, for then there had been a reciprocal promise which is not here, nor can be collected by any words in the Declaration. Cook, It doth not appear upon the Declaration by whom, nor to whom the money due by the two Bills, shall be paid, for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration, Quod Clench & Gaudy concesserunt. The Case was adjourned. CCIU Temps Roign Eliz. THe Case was, A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee, his Executors and Assigns, within three years' next ensuing, that then, etc. The Feoffee hath Issue three Sons, whom he makes his Executors, and dyeth before the day of payment. The Ordinary commits Letters of Administration to J. S. during the minority of the Executors. It was the Opinion of Dyer, that it was the surest way for A. to pay the moneys to the Executors no withstanding the administration committed to another, for the Administrator in such Case is but a Bailiff or Receiver to the Executors, and shall be accountable to them; which Harper concessit: And Manwood said, That if in that Case the moneys be paid to one of the Executors, it is sufficient; and the moneys to be paid upon that conditional Feoffment, are as a sum in gross, and not in the nature of a Debt, quod caeteri Justiciarii concesserunt. CCV. Temps Roign Eliz. A Lease is made of certain Lands for years, Proviso that the Lessee shall not put his upon the Land from Michaelmass to St. Andrews Tide, the Question was, If this Proviso and Restraint shall reach for the whole Term, or but to the first year. Dyer, Conditions are stricti juris, and ought not to have liberal constructions; therefore he conceived, that the condition should be restrained to the first year, and should not further extend. Manwood, If I be bound that I will not go to London between Easter and Michaelmas, it shall not extend only to the first year after the date of the Obligation, but for my whole life. Hil. 32 Eliz. In the Common Pleas. CCVI Doughty and Prideaux Case. ACtion upon the Case by Doughty against Prideaux upon these words, Thou art a wicked and perjured Fellow, 3 Leon. 269. and art forsworn in the Court of Star-Chamber, as it appeareth by an Exemplification here under the Seal of that Court: The Defendant justified by reason of a Bill exhibited in the said Court, by one Brooks against the now Plaintiff, for conspiring with another to indite the said Brook of certain Felonies, and the Defendant, now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy, and Sentence was given in the said Court against the now Plaintiff, ubi revera, such Conspiracy was. The Plaintiff by Replication said, That the said Brook was arraigned and indicted upon the said Indictment, and prayed his Clergy, whereupon it appeared, that the said Brook was not legitimo modo acquiet'; and the same can be no Conspiracy in the now Plaintiff, to prove the said Brook to be indicted: And by Walmesley and Periam, the Replication is not good, for it may be that Brook was acquitted, and yet that the Plaintiff conspired, upon which a Writ of Conspiracy perhaps will not lie, but an Action upon the Case without doubt, for the Replication doth not prove that the Plaintiff did not conspire, but that the Plaintiff was not punishable for such Conspiracy. CCVII Pasc. 33 Eliz. In the Common Pleas. AN Abbot made a Lease to three men for eighty years, and in the end of the said Lease there was a clause, Proviso, That if they died within the said Term, that then the Lessor might enter. The Possessions of the Abbey came to the King, who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years, to begin after the Expiration, Determination, or Surrender of the former Lease: The three Lessees died within the term, If J. D. might enter before J. S. had entered, was the Question. It was the Opinion of the justices, that he could not, for it is in the Election of J. S. if he will take advantage of the Condition, and defeat the Lease, but that aught to be by Entry, and none can make such Entry but the Lessor himself, or by his express direction. Trin. 31 Eliz. In the King's Bench. CCVIII. Barlow and Piersons Case. BArlow brought a plaint of Debt in London against Edward Pierson, which was his very name, and he caused himself to be removed into the King's Bench by the name of Edmund Pierson, and in Easter last he put in Bail Edmund Pierson, and we declared against him by the name of Edward, his true name, and judgement was given for us; and now when we are to resort to the Bail we cannot find any such Person, wherefore all our labour is lost, and now we would declare de novo upon that Bail, and we pray that the Court will give way to answer. Kemp, The ancient use was, when any removed himself hither by Habeas Corpus, the Plaintiff might declare against him at any time within a year after; but of late time the justices, to avoid overlong delays, have taken this order, that the Plaintiff in such Case declare within two Terms; and this is the second Term in your Case, wherefore you may declare: And it was said that because that the Defendant had removed himself by the name of Edmund, he is estopped to say the contrary: But if it were upon an Original Writ here, it is otherwise. And afterwards the Plaintiff declared against him by the name of Edmund. Mich. 27 Eliz. In the Common Pleas. CCIX Kightley and Kightleys Case. DEbt by Eustace Kightley against Charles Kightley Executors of the last Will of Francis Kightley: The Defendant pleaded that they had fully administered. The Case was this, Francis Kightley made the Defendants his Executors, who being within age administration was committed to another until they came of full age, and after they were of full age, the jury found, that in the hands of the Administrator, fuerunt bona & debita Testatoris amounting to the value of 4000 l. To which Administrator the Executors did release at their full age all manner of demands; and if that release were Assets in the hands of the Executors was the Question. Puckering Sergeant argued, it was not Assets, for a Release of a thing, which is not Assets in the hands of an Executor, cannot be Assets, and things in Action, before they come in possession, cannot be Assets: But a gift of Goods in possession is Assets. And there is a difference betwixt a certain thing released, and a thing incertain, of a certain it is Assets, for by such means he hath given a thing which is Assets, but contrary of an incertain. And this difference is proved by 13 E. 3. Execut. 91. where it is holden, that if Executors release to the debtor, he shall account for such sum before the Ordinary by Parn, but Trew said he shall not account. The whole Court was against Puckering: And Anderson said, It is a clear Case, that this Release is Assets, for he hath thereby given away that which might have been Assets. And the Law doth intent, that when he releases he hath recompense and satisfaction from the Party to whom the release is made: And it is not requisite, that every Assets be a thing in Possession, or in the hands of the Testator, for a thing may be Assets which never was in the hands of a Testator, as moneys for Lands or other Goods sold. So if they come by reason of another thing, which was in the Testators hands; as the increase of Goods by the Executors in their hands by merchandizing with the Goods of the Testator or Goods purchased by the Villain of the Testator after his death, shall be Assets. So moneys received by the Executor of the Bailiff of the Testator after his death shall be said Assets. Windam justice, So it is if the Testator hath Sheep, Corn, or Swine, and dyeth, and they have young Lambs, Pigs, or Calves, they are Assets for the reason aforesaid: And he agreed that the release is Assets, and he said it had been so adjudged, and he denied the difference taken by Puckering. Periam agreed with the rest in all; and also denied the difference. And he said, the incertainty must be such, that the same cannot be proved to the Court, or unto a jury; that the thing released might not by possibility have been Assets. For if Trespass be done to the Testator by taking his Goods, and he dyeth, and the Executors release all Actions, the same is Assets, because it might be proved to the jury, that had they not released, but brought their Action of Trespass de bonis asportatis in 〈◊〉 ●estatoris, that they might have recovered damages which should have satisfied the Debts or Legacies of the Testator and therefore it shall be Assets: And yet the thing recovered cannot be in the Testator, or a thing in possession, or certain in the hands of the Executors. With whom Rhodes agreed. And Periam conceived that such Administrators made durante minori aetate of the Executor, could not by our Law neither sue or be sued: For as he conceived, the Infant was the Executor and an Infant Executor may either sue or be sued, and may release if there be a sufficient consideration given him wherefore he said if an Administrator doth release where he hath no cause nor good consideration, he shall be answerable of his own Goods when he cometh of full age, for the wasting of the Estate, and such a release shall be Assets: and it was holden, that a release before Probate of the Will is good, and it is Assets also. And the same Term judgement was given, that the Release of the Executor was Assets. CCX. Temps Eliz. In the Common Pleas. NOte by Dyer upon the words of the Statute of 32 H. 8. cap. 28. That a Feoffment of the Lands of his Wife, it shall not be a discontinuance (mes que) but that the Wife may enter after the death of her Husband, is an Abridgement of the words precedent, for in some Cases such a Feoffment is a discontinuance; as if, after the Feoffment they be divorced, she cannot enter, but is put to her Writ cui ante divortium. CCXI Pasc. 29 Eliz. In the King's Bench. NOte by the Opinion of the whole Court: A man made his Will in this manner, I will and bequeath my Land to A. And the name of the Devisor was not in all the Will: That yet the Devise was good by Averment of the name of the Devisor, and proof that it was his Will; and if a man lying sick, having an intent to make his Will by words makes such a Devise, but doth not command it 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 into writing. Pasc. 29 Eliz. In the Common Pleas. CCXII Braziers Case. NOte, It was agreed by all the justices, and affirmed by the Prothonotaries, That if the Devisor levieth a Fine, and the Disseisee in preservation of his right against the said Fine, enter his Claim in the Record at the Foot of the said Fine, that the same is not any Claim to avoid the said Fine upon the Statute of 4 H. 7. Pasc. 29 Eliz. CCXIII The Queen and Sir John Savells Case. A Bill of Intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence, and upon Issue joined, the matter was tried by the Records, and thereupon judgement was given for the Queen. and an Injunction for the Possession awarded accordingly. Sir Robert died, and now Sir John Savell, Son and Heir of the said Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The perclose of which Writ was, ad grave damnum ipsius Johannis Savell filii & haeredis dicti Roberti. It was objected against the Writ, That no Writ of Error upon the said Statute of 31 E 3. lay upon such proceed which at the time of the making of the said Statute was not in force: For trial of an Issue in the Exchequer by Record, was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon such judgements which were given by Verdict, Confession, or Demurrer, and not upon trial by Records, which was given but of late times. But to this objection it was answered by the Lord Chancellor, and the other judges, That long time before the said Stat. of 33 H. 8. Issues joined in the Exchequer have been tried by the Records; and he, when he was the Queen's Solicitor, had seen divers Precedents to that intent in the time of Hen. 6. Mich. 29 Eliz. In the King's Bench. CCXIU Houtiers Case. DEbt was brought upon a Concessit Solvere according to the Law of Merchants and Custom of the City of Bristol. Exception was taken, because he did not mention the Custom in his Declaration: And because in the end of his Plea, he saith, Protestando se sequi querelam secundum Consuetudinem Civitatis Bristol, the Plea was awarded good, and the Exception disallowed. CCXV. Mich. 29 Eliz. In the King's Bench. A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet: And the Indictment was, That he at the Leet of the Earl of Bath, super Sacramentum suum coram Senescallo, etc. Exception was taken to it, because it saith at the Leet of the Earl of Bath, whereas every Leet is the King's Court, although that another hath the profit or commodity of it: And it was said that the Steward of a Leet is not an Officer of Record; and also his Oath was, If he had done a Rescous, or not, with which he was charged. And by Drew, It is not within the Statute; for it ought to be either before a jury in giving Evidence, or upon some Article. But the justices in that were of opinion against him. Mich. 25 Eliz. In the Common Pleas. CCXVI. Howen and Gerrard's Case. IT was adjudged in this Case, That Partition of Lands made by the Bailiff of a Franchize, was not good within the Statute of 31 H. 8. of Partition, but it ought to be done by the Sheriff himself. Mich. 28 Eliz. In the King's Bench. CCXVII. Strangder and Burnells Case. AN Action upon the Case of Trover of Goods, and converting them to his own use in Ipswich. The Defendant pleaded, That the Goods came to his hands in Dunwich in the same County, and that the Plaintiff gave to him all Goods which came to his hands in Dunwich, absque hoc that he is guilty of any Trover or Conversion in Ipswich. It was holden to be a good manner of pleading by reason of the special justification. Vide 27 H. 6. But where a justification is general, the County is not traversable at this day, Vide 19 H. 6, 7. 62 Eliz. In the Common Pleas. CCXVIII. Hodges' Case. IF one enfeoffeth his Son and Heir apparent, and no use is expressed, nor Consideration, it was said It should be to the use of the Son, and so hath the Law been taken; and so it is in Case of a Covenant to stand seized to the use of the Son. The Court said that there was a difference betwixt the Cases; or in the Case of Feoffment they seemed to be of Opinion, that the Deed should have no operation; but in the other Case it may be otherwise upon construction of the Result of the Use to the Father. 28 Eliz. In the King's Bench. CCXIX Mark Steward's Case. AN Assumpsit before Action brought may be discharged by word, otherwise after Action brought. Mich. 30 Eliz. In the Common Pleas. CCXX. Verney and Verneys Case. IN Dower by Verney against Verney: The Case was, That Lessee for years by Fine, to whom the Land was rendered by Fine for years upon the Default of the Tenant, prayed to be received, and it was Counterpleaded, because the Statute of Gloucester gave no Receipt, but where the Termor might have Recovery by Writ of Covenant, but where the Lease, as in our Case, doth commence by render by Fine, there cannot be any recovery by Covenant. But it was the Opinion of the Lord Anderson, That such a Termor shall be received. CCXXI. Mich. 32 Eliz. In the Exchequer Chamber. IN the Exchequer Chamber before the Chancellor, Treasurer, etc. A Writ of Error was cast upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen, for the Defendant, That the Writ of Error ought to abate for false Latin, for the Writ is Pertenet, where it ought to be Pertinet. But by Manwood, Anderson, and Wray, The same is no Exception, but notwithstanding that, the Court may proceed to the Examination of the Errors; For the same is not properly a Writ, but rather a Commission to the Chancellor, Treasurer, etc. and therefore it was ordered that the Party should proceed to the assignment of the Errors. Mich. 31 Eliz. In the Exchequer. CCXXII. The Queens, Fanes, and the Archbishop of Canterbury's Case. THe Queen brought a Quare Impedit against Fane, 1 Leon. 201. the Archbishop of Canterbury, the Bishop of Chichester, and Hudson Incumbent, and counted that John Ashburnham was seized of the Advowson of Burwash, and was Outlawed in an Action of Debt, during which Outlawry in force, the Church voided, by which it did appertain to the Queen to present. The Archbishop and Bishop pleaded that they claimed nothing but as Metropolitan and Ordinary. Fane pleaded, That King E. 4. ex gratia sua speciali, etc. and in consideration fidelis servic. etc. granted to the Lord Hastings the Castle and Barony of Hastings, and Hundred, etc. Et quod ipse haberet omnia Bona & Catal. Tenentium, residentium & non residentium, & aliorum resident. quorumcunque hominum de & in Castro, Baronia etc. seu infra eadem pro numero debit. etc. tam ad sectam Regis, etc. quam etc. utlagatorum. Et quod ipsi liceret per se, vel ministros suos, etc. and from him derived to the now Earl of Huntingdon as heir, etc. and the said Earl being so seized, and the said Ashburnham seized of the said Advowson as appendent to the Manor of Ashburnham, holden of the said Barony, the said Church during the Outlary in force became void: For which cause the said Thomas Fane ad Ecclesiam praedict. usurpando praesentavit the said J. H. who was admitted, and instituted, and demanded judgement, If, etc. with this that the said Tho. Fane will aver that the said Church of B. is, and at the time of the said Grant was infra praecinct. libertatis & franchesiae praedict. & quoth praedict. Manerium de Ashburnham tempore concessionis praedict. was holden of the said Barony. And the Incumbent pleaded the same Plea: and if by that Grant of King E. 4. to the Lord Hastings, scil, Bona & Catalla, the presentment to the Church passed or not, was the Question. Shuttleworth of Counsel for the Queen, he said and confessed, That the Queen might grant such a Presentment, but it ought to be by special and sufficient words, or such words so as it might appear to the Court by them that the intent of the Queen was to grant such a thing, for the general words Omnia Bona & Catalla, would not pass such a special Chattel in the Kings Grant. And he said he conceived, that by the words subsequent, that no Goods and Chattels should pass by such Grant, but such which might he seized, the which the Advowson of a Church could not be: Et quod ipsi liceret per se vel Ministros suos ponere se in seisinam, 8 H. 4. 114, 115. The King granted to the Bishop of London that he should have Catalla Felonum & Fugitivorum de omnibus hominibus, & tenant. de & in terris & feodis praedict. & de omnibus residentibus infra terr. & feoda praedict. ita quod si praedicti homines, tenentes & resident. de & in terris & feodis praedict. seu aliqui eorundem, seu aliquis alius infra eadem terras & feoda pro aliqua transgressione sua, seu quocunque alio delicto vitam, vel membrum debeat, vel fugerit & judicio stare noluerit, seu aliquam aliam transgressionem fecerit pro qua ipse Catalla sua perdere debeat, in quocunque loco justitia de ea fieri debeat. Ipsa Catalla sint ipsius Episc. & per Ministros Episc. fn manus ipsius Episc. sesiri possint. Tirwhit, The Goods of those that are put to penance do not pass, so the Goods of a Felo de se, Vide 42 Ass. 5. where one being impanelled upon the Grand Inquest before the justices of Oyer and Terminer, pleaded the King's Charter of Exception from Inquests; and because in the said Charter there was not this Clause (Licet tangit nos & haeredes nostros) without challenge it was rejected, and he charged, and sworn. And if the King grant to me to appropriate an Advowson, which in truth is holden of the King, such a Grant is void. So if there be not special words, by which it may appear that the King hath notice of it, and that his intent was, that the Grant should extend to the same, it doth not pass, 16 E. 3. Fitz. Grants 58 and 33 E. 3. Grants 103 So here this Presentment is a special Chattel; and it is not usually intended, or thought upon when a man speaks generally of Goods and Chattels, but that it passeth, yet the Presentment doth not lie for the Defendants, for they do not derive any interest under that Grant, but are mere strangers to it, and therefore they shall not take any advantage in laying this Grant in the Queen's way; for the Queen hath good title against all persons, but those which claim under the said Grant, but that is nothing to the Defendants. For one cannot cross the title of the King, if he doth not make a title to himself. As 39 Ass. 18. 17 Ass. 11. if the title of the King be found by a false Office, the party grieved cannot traverse the title of the King, without making a title to himself, and then the King may choose whether he will maintain his own title found by the Office, or traverse the title of the other. Walmesley to the contrary this title of Presentment is a Chattel, Rex habebit omnia Catalla felonum, etc. Terminus Annorum is a Chattel, so Exitus & proficua terrarum utlagatorum pro felonia; so a right of Action for Goods; so it is of an Obligation made to the party delinquent, therefore also a title to present; therefore if a title to present shall accrue to the King by such general words, it shall pass also from the King by such words; and as to that which hath been objected, That the Grant of King E. 4. extends only to such Goods and Chattels which may be seized. He cited the Case 39 H. 6. 35. where the Grantee of a Rent-charge, for a term of years granted Omnia Bona & Catalla sua tam viva, quam mortua, the Rent passed, and yet the Grantee could not put him in Seisin of it when he would, but aught to expect the day of payment. And this title to present is not a thing in action, for if no disturbance be made, the Party may have the benefit of it without any Action. Anderson held that this title to present could not pass by these general words, Bona & Catalla, for they do not extend to a Right, or things in Action, but to such things only which are commonly known and understood by such words. By grant of Goods, Chattels real do not pass. For when men speak of Goods, Householdstuff, Money, and the like, personal things only are understood. So a man cannot be said to have a Chattel but where he is possessed of it, and here this Interest is but Jus praesentandi. Periam, This Interest is a Chattel; for if the Church became void and before Presentment the Patron dyeth, his Executors shall have the Presentment, for that it was a Chattel vested in their Testator, etc. 19 Eliz. In the King's Bench. CCXXIII Hide and Hills Case. IN Ejectione firmae by Hide against Hill, The Case was, Nicholas Throgmorton Tenant in Tail, without licence of the King, went beyond Sea into Italy, and there married an English Woman, and there continued in the Service of Cardinal Pool, and their practised traitorously against the State here, and against his Allegiance, within which time he had Issue a Son named Francis: It was holden that the said Son was not inheritable to the Tail; for if a Subject goeth beyond Sea with the Licence of the King, and there continueth longer than his appointed time, by that he loseth the benefit of a Subject. It was further given in Evidence, That the said Nicholas was attainted of Treason in the time of Henry 8. and afterwards went beyond Sea, ut supra, and returned in the time of Queen Mary; and was restored by Act of Parliament: And upon all that matter it was holden that the said Francis was inheritable. 19 Eliz. In the King's Bench. CCXXIU Grey and Edward's Case. IN an Attaint by Grey against Edwards it was holden by Wray, Gaudy, and Jeoffries, That if one makes a Deed, and that by these words (Dedi) conveyeth Lands to another, without any words of Bargain and Sale, and that for a sum of money; If the Deed be debito modo enroled, the use shall pass as well as if the words of Bargain and Sale had been in the Deed, because that a sum of money was paid for the Land. 19 Eliz. In the King's Bench. CCXXU. Webs Case. IN Action upon the Case the Plaintiff declared, That whereas Cobham was indebted to J. S. and J. S. to the Defendant, the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham, promised to pay and give to the Plaintiff 10 l. It was objected, Here was not any Consideration for to induce the Assumpsit; for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel. But the Exception was not allowed of. For in this Case not so much the Profit which redounds to the Defendant, as the Labour of the Plaintiff in procuring of the Letter of Attorney, is to be respected. Temps Roign Eliz. CCXXVI Heggor and Felstons Case. IN Trespass, the Case was, A Copyholder surrendered to the use of his Wife for Life, and after to the use of his Daughter in Fee, the Wife is admitted: It was holden that the Daughter, after the death of the Wife, Copyholder Surrender by Attorney. might without any admittance surrender the same Land, for the first admittance was sufficient. And Manwood said that Roper was Steward of a Manor, and one of the Copyholders of the said Manor being in Ireland, he made a Commission to one to receive a Surrender from him there, and it was holden a good Surrender. CCXXVII. Trin. 32 Eliz. In the Exchequer. NOte by Manwood chief Baron, for a Rule to all Counsellors, That they do not advise any Collectors of Subsidies or Fifteen to exhibit any Bills in the Exchequer Chamber for the not payment of Subsidies; for such Bills shall not be allowed hereafter, because they have remedy by Distress. Also it was, That if any be assessed for the Fifteen which he ought to pay, or if two Towns ought to pay together, and one Town be taxed more than it ought to be, or hath been accustomed, those who are grieved by such Assessment, may have a Commission out of the Exchequer, which is called ad aequaliter taxand. and that was put in practice in a case between Bartace and Hind, where one of these was Lord of Little Marlowe, and the other of Hedsore. It was also holden, That Fifteen are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times, and therefore it is not reasonable they pay their Fifteen always according to the same proportion. But Clark Baron held where the Custom hath always been that the Fifteen shall be taxed according to the quantity of Acres, than the rate and proportion shall be always on whosoever holdeth the Land. And as to the Commission ad aequaliter taxand. Manwood and Fanshaw said, That they could show twenty Precedents of it. Trin. 30 Eliz. In the King's Bench. CCXXVIII. Harris Case. THe Case of Harris of the Middle Temple, was, Tenant in tail in remainder upon an Estate for life is attainted of Felony, 2 Leon. 122. Hugh's Qu. 13. 3 Leon. 185. 1 Inst ● If he hath forfeited his Remainder during his Life. Popham Attorney General, He hath forfeited it to the Queen; for after his attainder, the Law will not suffer it to remain in him, and it cannot vest in the Lord of whom the Land is holden; for the person attainted being Tenant in tail in remainder, was not very Tenant to the Lord, therefore, if in none of them, the Queen shall have it, and the Law shall punish the offence so sharply, that it suffer nothing to remain in him. So Tenant in Dower and by the Courtesy: And it is a Maxim, What a man hath in his own right he may forfeit, but it is not a certain rule, Whatsoever a man may grant he may forfeit; as Guardian in Socage and Executors may grant that which they cannot forfeit. 2 Leon. 126. A man seized in the right of his wife is attainted of Felony, the Queen shall have but the profits of the Land during the life of the Husband, Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony, the King seizeth, and hath the Lands during the life of the husband, after the death of whom, issued a Diem clausit extremum, Vide F.N.B. 254. D. Cook, Tenant in tail in possession is attainted of Felony, the King shall have but the profits, but as our Case is, being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life, and after the death of the Tenant in tail, so attainted of Felony, the Issue in tail may enter, for the King hath not the Freehold; for if the King had the Freehold, the Issue in tail could not enter without Office, vide Old Natura Brevium in the Writ of Escheat, That the King shall have only the profits. At another day it was argued by Egerton Solicitor, That the Queen hath the Interest of him in the Remainder during his life; for a man so attainted cannot be received against the Queen; and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it: And he said that this Remainder vested in the Queen without Office, than not pardoned by 23 Eliz. It hath been objected, That if the Remainder be in the Queen without Office, by this attainder of Felony by the Common Law, than also in case of attainder for Treason, and then what need was there that the Statute of 33 H. 8. should be made, which enacteth, That in cases of Treason it shall vest in the King without Office. As to that, I answer, That that Statute was made in affirmance of the Common Law, and also for other things given to the King by the Statute, which were not given by the Common Law, as Conditions, Rights, etc. So as the King might grant over without Office, and also the Subject have a Petition of Right before Office, which was not at the common Law, 33 H. 8. 20. in the saving in the end of it: And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce, for by the common Law before Office, the King might grant them, but he could not grant them if they were not vested in him; and the said Statute was made to such intent, that the Queen should be fully informed of her Title, etc. by the Office. Vide Stanford Prerogat. 54, 55. and Vide 20 E. 4. 11. A. seized of a Manor with an Advowson appendent, is attainted of Treason, the Church void, the King without any Office shall have the presentment. But admitting that it is not in the King without Office, yet the Pardon of 23 Eliz. doth not extend to it: For the words of the Pardon are, Treasons, Felonies, Offences, Contempts, Trespasses, Entries, Wrongs, Deceits, Misdemeanours, Forfeitures, Penalties, and Sums of Moneys, and if by any of these words the matter be helped, is to be considered; and if any thing shall help it, it is the word Forfeiture: But I conceive that the same doth not extend to this matter; for although it be an ample word, yet it shall be construed to extend beyond the words accompanied with it, which concern only personal things, as Contempts, Wrongs, Trespasses, as the Statute of 13 Eliz. cap. 10. which is penned by general words, as Colleges, Deans and Chapters, Parsons, Vicars, and others having Spiritual Promotions, that Statute doth not extend by construction to Bishops, and they have Spiritual Promotion; yet the Statute shall be construed to extend to the Parties named, and other Inferior Orders and Degrees, and shall not be extended higher. So in the Commission of the Peace, ad diversas Felonias, & alia Malafacta, etc. those general words do not extend to Treason, etc. Vide for the Residue of this Case Venable and Harris' Case, which was the same Case, and is Reported in Leonard 2 Part, fol. 122. Placito 169. Pasc. 33 Eliz. In the Common Pleas. CCXXIX. Downhall and Catesoy's Case. IN a Formedon by Downhall against Catesby, 3 Leon. 267. the Parties were at Issue, and it was tried by Nisi prius: It was moved in Bank, because that some of the jury did eat and drink before they gave their Verdict that the Court would not receive the Postea: Curia that we cannot do; for we not know whether your Information be true or not, and this matter ought to be examined by the justices of Assize or Nisi prius, before whom the Trial was, and they are to certify thereof, and then we shall have good cause to stay the Entry of the Postea. In that Case it was said. If any of the jurors eat and drink before their Verdict at their own Costs, it doth not make the Verdict void, but if at the Costs of the Plaintiff or Defendant, it is otherwise. CCXXX. Hil. 29 Eliz. In the Common Pleas. THe Sheriff took an Obligation of a Prisoner bailable, upon condition that he should personally appear in the King's Bench, etc. It was holden a good Condition, not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer: contrary, that he shall appear and answer; for in the principal Case, the word (personally) is not of substance, for although he appears by Attorney, yet the Condition is well performed; and judgement was given for the Plaintiff: Anderson reclamante. Vide 27 Eliz. B. R. Sedford and Cutts Case. 32 Eliz. In the Common Pleas. CCXXXI. Haselwoods' Case. THe Case of Haselwood; A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land: And the Case of Fleetwood 15 Eliz. was vouched, where it was holden, That in purchase the debtor of the King was liable. But by Pigot, who was of Counsel with Haselwood, the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged. 32 Eliz. CCXXXII. Sir William pelham's Case. SIr William Pelham was Surveyor of the Ordinances, and delivered of the King's money to Painter, Clerk of the Ordnance. It was holden, That for that money the Queen might have Account against Painter. See this Case before Sect. 81. Trin. 29 Eliz. In the Common Pleas. CCXIU Ognell and Vnderhills Case. IN Replevin, the Case was, as appeared upon the pleading, That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange, and leased the same to Sir William Raynsford for thirty years, who died thereof possessed, by reason of which the Interest thereof came to Raynsford, as Executor of the said Sir William Raynsford, who assigned the said Farm, except a parcel of it called Hobbes, to Sir Henry Bear for parcel of the term, and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others, and afterwards granted the residue of the said term, not expired, to the said Bear and Frekington, and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris & renementis quibuscunque vocat. the Grange of Cruchefield, in the Parish of Stoneleigh in the County of Warwick nuper in tenura, & occupatione William Raynsford milit. & nunc in tenura, & occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee, to whom Scarre releaseth all his right, estate, and demand in the said Land called Hobbes; the Lease expired, the rent behind, Lewknor leased at will to R. the first Question was, If the said Rent-charge shall be said issuing out of the said Lands called Hobbes; for if etc. then by that Release the rent is gone: But the whole Court was clear of Opinion, That the rent was not issuing out of Hobbes, but out of the Lands then in the possession of Bear, and not out of the Lands in the possession of Frekington: Although it was objected by Walmesley Sergeant, That the words in the Grant of the rent, (in tenura & occupatione Bear) shall be construed in the disjuncive, quasi sive; and then the Close called Hobbes, although it was not in the Occupation, yet it was in tenura of Bear. The Matter was at another day argued by Fenner Sergeant for the Plaintiff, and he much relied upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque, commonly called Cruchefield Grange: As if I grant to you all my Trees, my Appletrees shall not pass; but if the Grant was omnes arbores meas quascunque they pass, and that by the Emphasis of this word Quibuscunque: So if I grant you Common for your in such a place, none shall have Common but those which are Commonable, shall have Common there; contrary where the Grant is pro averiis quibuscunque: And it was adjudged in the Chancery in the Case of the Bishop of Ely, That where the said Bishop leased all the Demeasns of a Manor for years, that by the said Lease the Park within the said Manor should not pass. But perhaps if such a Lease had been Omnes & singulas terras dominicales quascunque, the Park would have passed. And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant, took Exception to the pleading: The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent, and doth not show the Letters of Administration. And as to that, It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers. Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute, so long as the Lands remain in the possession of the Tenant in Demeasn, who ought immediately to have paid the said Rent. And it was said by Anderson and Rhodes, that the Conusans was good enough, and within the relief of that Statute: For Lewknor was the immediate Purchaser, and although he had let the Lands to another at will, that did not make any thing, for yet the Estate of the Land is within the words of the Statute, for the Land remains in the Seisin of the first Purchaser. And note that in this case Bouchier died before the Lease expired, so as the Rent was not determined in his life. And afterwards judgement was given for the Defendant. Mich. 30 Eliz. In the King's Bench. CCXXXV. Rawlins and Somerfords Case. IN Ejectione firmae, the Case was, Cartwright possessed of a house for the term of 30 years, demised a Stall parcel of it to Wartow for two years, and afterwards assigned the whole house to Rawlins for all the years; Rawlins redemised the same Stall to Cartwright for twenty years, but Wartow did not attorn; but before the said Redemise, Cartwright by Deed indented, demised the said Stall to Wartow for six years after the said two years ended, and afterwards Rawlins redemised all the house to Cartwright for 21 years, rendering rend, with clause of reentry, and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery, etc. it was agreed between the Parties, that Wartow should have the said Stall according to the Lease for six years to him made: And afterwards Cartwright redemised the said Stall to Rawlins for ten years, and afterwards the Rent. was behind, And if the Rend reserved by Rawlins upon his demise to Cartwright, was suspended, or not, was moved a question. Cook argued it was not suspended, for Rawlins had in the Estate but an Interest in futuro, which cannot suspend the Rent before in possession. And he put the Case 31 E. 1. Fitz. Descent 17. Lord and Tenant, the Tenant is attainted of Felony, and dyeth, now the signory is not presently extinct: For if the Lord takes Fealty of the Son, the signory doth continue in Esse, and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton, the rent is suspended, as if I lease Land and an Advowson, rendrint rent, and I take back an Estate in the Advowson, now the rent is suspended. But as to that it was answered, That there the party hath a present interest in the Advowson, but so it is not in the Case at Bar. And by Cook, A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendering rend, and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after, it is not a present suspension of the rent until the Lease come into possession, etc. And afterwards it was adjudged, that by the Lease in futuro the rent was not suspended, Pasch. 28 Eliz. Rot. 255. Mich. 26 Eliz. In the Exchequer. CCXXXVI. The Guardians of the Monastery of Otleries' Case. IN the Exchequer, it was found by Special Verdict, 1 Leon. 4. That the Guardian and Canons Regular of Otlery were seized of the Manor of O, etc. and that 22 H. 7. at a Court holden, granted the Lands in question to W. and W. his Son, for their lives, by Copy, according to the Custom of the said Manor, and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendering the ancient and accustomed rent, and afterwards surrendered their College, etc. and afterwards W. and W. died. And if the said Lease so made, during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not, that was the Question, being within a year before the Surrender, etc. And it was argued by Egerton Solicitor, That the said Lease was void by the Statute, the words of which are, Whereof, or in the which any Estate or Interest for term of Life, year or years, at the time of the making of any such Lease, had his Being or Continuance, and was not then determined, finished, or expired. And therefore we are to see, if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest, or Estate for Life: And as to the word Estate est nihil aliud, than measure of time; for an Estate of Fee-simple, is as much as to say, an Interest in the Lands for ever, and so of the rest, and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised. And although such Customary Tenants are termed in Law, Tenants at will, yet they are not simply so, nor mere Tenants at will, but Tenants at will secundum Consuetudinem Manerii: which Custom warrants his possession here for life, and therefore it is a more certain estate, than an estate at will, for the Copyholder may justify against his Lord, and so cannot a Tenant at will, whose estate is determinable at the will and pleasure of his Lessor; and although this estate is but by custom, and by no conveyance, yet it is such an estate which the said Statute intends, & non refert by what conveyance the estate is raised, so it be an estate; and this estate being supported by custom, is acknowledged in Law to be an estate, and so accounted in our Law; and the Law hath notably distinguished Copyhold tenancies by the custom, and tenancies at will at the Common Law, for a Copyholder shall do fealty, and have aid of his Lord in an Action of Trespass; he shall have and maintain an Action of Trespass against his Lord; his wife shall be endowed; the husband shall be Tenant by the Courtesy without a new Admittance: So customary Tenancies are within the Rules and Maxims of our Law: As in the Case of Horewood, There shall be a possessed o fratris of it without admittance; and it was adjudged 8 Eliz in the King's Bench, That if a Copyholder surrender to the use of another for years, and the Lessee dyeth, his Executors shall have the residue of the term without any admittance. M. 14, 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom, the Lessee brought Ejectione firmae, it was adjudged maintainable in the Common Pleas; Although it was objected, That if it be so, then if the Plaintiff recover, he should have an Habere facias possessionem, and there Copyholds should be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life, the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel, the Copyholder surrendreth to the use of A. who is admitted, he shall not hold the Land charged; and so it was adjudged in the Court of Common Pleas. CCXXXVII. Mich. 23 Eliz. In the Common Pleas. IT was holden by all the justices in the Common Pleas, That the Queen might be put out of possession of an Advowson by two Usurpations, and shall be put to her Writ of Right of Advowson, as a common person shall be, for it is a thing transitory; and if the Queen after such Usurpations grant the Advowson, the Grant is void, and so it was adjudged. CCXXXVIII. Mich. 23 Eliz. In the Common Pleas. THe Case was, Tenant in tail, the remainder over to another in Fee, makes a Lease for life according to the Statute, and afterwards dies without Issue; and afterwards he in the Remainder grants his Remainder by Fine before any Entry, and by Fenner, the Conusee cannot now enter upon Tenant for life, nor avoid his lease, for by the Livery to the Tenant for life, a Freehold passeth, which cannot be avoided without an Entry. As if a Parson makes a lease for life, rendering rend, and dyeth, the Successor accepteth the rent, now the lease is affirmed, vide 18 E. 4. 25. and then when before any Entry, he in the remainder grants his remainder, the Grantee shall have it but as a remainder, and so the Estate of the Tenant for life, which before was voidable, is now made good; and so it was holden by Windham and Periam: But by Mead and Dyer, by the death of Tenant in tail without Issue, the lease for life is become void, for the Estate out of which the Estate for life is derived, is determined by the dying without Issue, Ergo etc. Vide 21 H. 7. 12. A lease for life is made upon condition, That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease, now by the performance of the Condition the Estate is determined without any Entry. CCXXXIX. 32 H. 8. In the Common Pleas. NOte by all the justices of the Common Pleas, That if a man holds of the King in chief by Knight's Service, and also holds of another Lord by Knight's Service, and dyeth, his heir within age, and the King seizeth the Wardship of the Body and Land, and afterwards the heir cometh of full age; and before Livery sued, the other Lord grants over his signory to another, and the heir Attorns, It is a good Attornment; and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued, is good enough, and shall bind him afterwards in an Avowry, etc. Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL. Sir William Hollis Case. SIr William Hollis brought a Quare Impedit against the Bishop of Coventry, Godfrey Fuliamb Kt. and William Waltham Clark; The Case was, Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendent, and presented to the same Church one A. his Clerk, who was admitted, etc. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb, James Fuliamb, George Fuliamb, and William Walton, & eorum uni conjunctim & divisim, afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee; the Church became void, the said Sir Godfrey Fuliamb presented the said Waltham his Clerk, who was admitted, etc. And upon Argument at the Bar and Bench, It was adjudged against the Plaintiff, and the Presentment of Sir Godfrey sole without the others, was good: Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance, Tr. 31 H. 8. Rott. 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Moor's Reports, by the name of Sir Godfrey Fuliambs Case. CCXLI Temps Roign Eliz. NOte by Hind and Hales the King's Attorney, justices of Assize in the County of Essex, in the Case of the Bishop of London and one Heron Keeper of Cronden Park: if the Keeper of my Park or any of his Servants without his assent, of their own heads, and without my commandment kill my Deers within the said Park, being within his keeping, or abateth, or pulleth down any house within the Park, or Barn for to lay Hay for the Deer there, or cutteth any Trees, Wood or Vnderwoods' there growing, and sells the same, or gives it to another, that in all these cases the Keeper of the Park shall forfeit his Office; And it was agreed by them, That such a Keeper hath not any estate or possession in the Park, or in the Lodge, but the possession remains always in the Owner of the Soil of the Park, and the Keeper hath but the occupation, and keeping, and the surveying of the same; for such a Keeper cannot justify the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park, but it was agreed that he who hath the inheritance in such an Office, shall not forfeit his Office for the causes aforesaid. Hil. 29 Eliz. In the Common Pleas. CCXLII Fitz and Pierces Case. IN Ejectione firmae by Fitz against Pierce: Pierce was outlawed and now came, and shown by way of Plea, that the outlawry was erroneous in this, videlicet ad Com' meum tent' 30 Jan. 29 Eliz. whereas the said day was Die Dominicus, and so there was no County Court: It was the Opinion of Windham, that the same matter did well lie in Plea, for it is matter apparent within the Record, as in the case of Brecket and Fish, Ploughed. Com. 266. Rhodes and Periam were of a contrary Opinion, and said the case cited is not like to the case at Bar, for there it appeareth to the Court, as judges, when every Term beginneth and endeth; but it is otherwise in our case, si 30 die Januarii be dies Dominicus necne, for it shall be tried by the Country, etc. Trin. 32 Eliz. In the King's Bench. CCXLIII. Keenes' Case. RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam, Indictment. Nusance. for all the King's Subjects there passing: Exception was taken to it, because it wanted the word Regiam; and the word necessariam doth not imply any matter, for a Foot way is necessary: Addition. Also here the Party hath not any addition: It is R. K. but it is not said Clerk, and for these causes the Party was discharged. Trin. 32 Eliz. In the King's Bench. CCXLIV. Peake and Pollorts Case. ACtion upon the Case by Peake against Pollort, Words. upon these words, Thou art a malicious and seditious man, and movest the Queen's Subjects to Sedition: It was the Opinion of the Court, that the words were not actionable, for they were too general; for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition, which is not any great Scandal. And the Statute of 23 Eliz. is, If any Person do any thing to move the People to Sedition, the same is Felony; but than it must be Sedition against the Queen; and of that Opinion was the whole Court. Trin. 32 Eliz. In the King's Bench. CCXLV. Ratcliffe and Shirleys Case. THe Lady Ratcliff brought an Action upon the Case against Shirley, for these words, Words. My Lady Ratcliff is a beggarly Lady, and giveth threadbare Coats; she bought Sheep, and cozened men of their money, and she is as very a Thief as he that robbeth by the Highway. Upon Not Guilty, the jury found that the Defendant spoke these words, She is a worse Thief than he that robbeth by the Highway: It was holden that the words found by the Verdict were actionable, as well as if the Defendant had called the Plaintiff Thief generally. But it seemed to the Court, that upon that Verdict the Plaintiff should not have judgement; for it may be that the Defendant dixit utrumque at several times; and so several Causes of Action. And it is not like to the Case 3 Ma. 118. where part of the words is found, & quoad alia verba non dixit, and so expressly acquit him of the remnant, so it is not here, for this Verdict doth not acquit him of the other words; and for that Cause judgement was stayed. Hil. 26 Eliz. In the King's Bench. CCXLVI. Herne and Crow's Case. IN an Action upon the Case by Herne against Crowe, and declared, that whereas certain Irish Merchants had imported Furs here into England, which were offered to be sold in London; which Furs the Defendant desired to buy, but because he was a Foreigner he could not buy them without peril of forfeiture, and then the Plaintiff was in communication with the Merchants to have bought them, that the Defendant in consideration that the Plaintiff promised to the Defendant, that when he had bought the said Furs, the Defendant should have such a quantity of the said Furs as he pleased upon equal price, assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs; yet, that notwithstanding he proceeded in the said bargain, and offered to the said Merchants sixty pound more than any other, by reason of which the Plaintiff could not have them for such reasonable price, as he might have had them before. It was holden by Wray Chief justice, That the Declaration here was insufficient, upon which the Defendant might have well demurred. Mich. 26 Eliz. In the Common Pleas. CCXLVII Baker's Case. A Writ of Partition by Baker Heir of Gertrudi Marquis of Exeter, who devised all his Lands to Blunt, by which the third part descend to the Plaintiff, Estrepement. and prayed a Writ of Estrepement; and it was the Opinion of the Court, that the Writ is not to be granted, for the Plaintiff may have a more proper remedy upon the Statute, Cum duo, vel tres, and in a Writ of Partition no Land is demanded. CCXLVIII. Mich. Eliz. In the Common Pleas. Conditions. A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor, and in the performance of the said Condition, he made such a Lease, and delivered the same to C. to the use of the Obligor. The Opinion of the whose Court was, That the Condition was not performed, because the Obligor had not the Lease in his own hands to plead, but is put to his Writ of Derinue against C. which was not the intent of the Condition. Mich. 31 Eliz. In the Common Pleas. CCXLIX. Seaman and browning's Case. SEaman brought Debt, in an Obligation against Broshnin and others, Executors of one Marshal; The Condition was, That whereas the said Marshal had sold certain Lands to the Plaintiff, If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshal, &c and assigned the breach. That the said Marshal had entered upon them, and cut down five Elms there, upon which they were at Issue: And it was found that a Servant of the said Marshal had entered and cut them, and that in the presence of the said Marshal his Master, and by his commandment: It was the Opinion of the Court, that the Condition was broken, and that the Master was the principal Trespasser. Trin. 30 Eliz. In the Common Pleas. CCL. Babingtons' Case. HUmphrey Babington brought a Writ of Deceit, and counted that T. S. was seized of Land, and held the same of the Manor of Rodely, which Manor is ancient Demeasn; And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him, in which T. S. pleaded and lost, and judgement was given against him. Et quod ipse Humphridus extitit Dominus Manerii praedicti, and concluded, ad exhaeredationis ipsius Humphr●di periculum manifestum. Exception was taken to the Count, because the words are, quod cum ipse existit Dominus Manerii praedicti: where he ought to say further, Amendment. Et tempore Judicii praedicti existebat; for if the Recovery was before he purchased the said Manor, his Action doth not lie, which Rhodes and Anderson concesserunt, wherefore day was given to the Plaintiff to amend his Count 32 Eliz. In the Exchequer. CCLI. Sir William pelham's Case. THe Case was, A. Tenant for life, the remainder in tall to B. etc. A by Deed indented and enrolled, bargained and sold the Message so conveyed to W. P. in fee, who suffered a common recovery, in which A. is vouched; and so a common recovery had and executed; and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question, or if it be a forfeiture. Altham argued that here is a forfeiture: 1. It is to see if a common recovery suffered by Tenant for life (which here is the Bargainee) be a forfeiture or no by the common Law, 1 Leon. 264. it's not forfeited. 2 Leon. 60, 65. if no Execution be sued upon the same Recovery. 2. If it be executed, then, if he in the remainder may enter for the forfeiture. When the Tenant for life bargains and sells the Message, although upon it an estate in fee be limited, yet nothing passeth from him, but what he may lawfully pass, and that was the estate for life of the Bargainor, for such an estate only he might lawfully pass; and here the Vendee is but Tenant for the life of another, and when of his own assent he suffers a common recovery, and that without right, it is a forfeiture: By matter in Fait a particular Tenant may commit a forfeiture, as well as by matter of Record: By matter in Fait he cannot commit a forfeiture, if not thereby the reversion be not pulled out of him in the reversion: As if a Lessee for 10 years make a Lease for 1000 years, it is not a forfeiture, for by that the reversion is not touched; but if he by matter of Record do any thing which sounds to the disinheriting of him in the reversion, although in truth the same doth not touch the Inheritance, yet it is a forfeiture, Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion, it is a forfeiture, and by Finchden and Belknap, he cannot plead in the right, 5 Ass. 3. Tenant for life is impleaded in a Praecipe by a stranger, and confesseth the Action, upon which the Demandant hath judgement, the Lessor enters, against whom the Demandant sueth Execution: The Lessor brought an Assize, and had judgement to recover, for it is a forfeiture, because the Tenant for life hath admitted the reversion in another, because it is an alienation to the disinheriting of the Plaintiff and of the Lessor: 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief, or cannot deny or gainsay the Action of the Demandant, or makes default by Covin, he shall forfeit his Estate: But if a rent be demanded against Tenant for life, and he rendereth the same, it is no forfeiture, 12 Ass. 31. Tenant for life is impleaded by Covin, between him and the Demandant, and pleads in chief without aid prayer, upon which judgement is given, he in the reversion enters in a Juris utrum against Tenant for life, who pleads feintly, traversing the point of the Action, he in the reversion shall not be received; for in as much as the Tenant hath traversed the Action, he is not within the Statute of West. 2. 3, 5. Default, Reddition, but he in the Reversion may enter by the Common Law, 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life, who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine, judgement is given for the Demandant in the Scire facias, he in the reversion may enter: In our principal case, here is apparent and manifest Covin; for the Tenant for life voucheth without cause, and this Recovery is by assent, and is to the use of the Vendee, who is Tenant for the life of another, and therefore, by the Common Law, he in the Remainder may enter before Execution sued: And it is well known that these common Recoveries are used for to dock Remainders in Tail, and that was the scope of this Recovery. And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat, who voucheth a stranger, the Demandant counterpleads the Voucher, and it is found for him, he in the Reversion hath no remedy but by a Writ of Right; and if the Vouchee entereth, and loseth by Action tried, or default ut supra; that Book is to be intended of a Recovery executed; for there in such case he in the Reversion hath not an Entry, but is put to his Writ of Entry by the Common Law, Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded, and prays in the Aid of a stranger, he in the Reversion may enter; but if he doth not enter until the other hath recovered, than he cannot enter, but is put to his Writ of Entry, Ad terminum qui praeteriit, vel de ingressu ad Communem Legem, and therein he shall falsify the Recovery; and there, by Brook, Vourcher of a stranger is not cause of Forfeiture, for it doth not disaffirm the Reversion in the Lessor: And he vouched 24 E. 3. 68 where Tenant for life pleaded in the right with aid prayer: And so he argued, that before Execution he in the Remainder might enter but after Execution is put to his Action: But in our Case, although that Execution be good, yet he in the Remainder may enter, for it is found by Verdict, that at the time of the Recovery he was within age, and that when he died, that he in the next Remainder was within age, and then no Entry shall be imputed, and then he shall not be driven to his Action: As if Tenant by the Courtesy makes a Feoffment with warranty, and dyeth; and the same descends to his Heir within age, yet he shall enter, although he hath not avoided the warranty in the life of his Ancestors: Also he said that the Statute of 32 H. 8. extended to this Case; for Sir William Pelham the Vendee was but Tenant for life, and although that he be but Tenant for the life of another, yet he is Tenant for life as fully as if he were Tenant for his own life, (or otherwise Tenant for life or lives.) Note this, the words of the Statute. As upon the Statute of 20 E. 1. which gives Resceipt, the defension juris, the words are, Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae, vel feod taliat' vel sub Nomine Dotis, vel alio modo, ad terminum vitae; upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another, that upon such an Estate, he in the reversion should be received, by reason of these words, vel alio modo ad terminum vitae, etc. And although he who enters at the time of the recovery, was not next in remainder to the particular Estate, yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery, and at the time of the entry he in the immediate remainder was dead, and then he the next in remainder. Vide 15 E. 4. 9 by Litt. If I grant my Services to one for life, and he in a Praecipe brought against him, pleads in the right, or grants to another the said Services in Fee, it is not a Forfeiture, for it is no Discontinuance. It will be objected, That the words of the Statute of 32 H. 8. are, That such recoveries shall be utterly void, and if so, than he in the reversion cannot be damnified, and then no cause of Forfeiture. So that it may be easily answered, That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion, by matter of record, although the same doth not divest, or otherwise prejudice the Inheritance, yet it is a Forfeiture. Cook, to the contrary. Here in our Case is not any Covin in Sir William Pelham the Bargainee, he was deceived by the Bargainor; for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture, by which the Bargainor covenanted that he was seized in tail at the time of the Bargain; and also to do any other act for assurance of the Estate of the Bargainee; and it was lawful for him to Vouch his Bargainor, and although he voucheth a stranger, it is not a Forfeiture. 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture, and the reason of that is, because he acknowledgeth the reversion to be in a stranger, and that is the cause of Forfeiture. Vide Book of Entries 254. Where upon Aid prayer, the Party to have Aid shown such Special matter: But in our Case the Tenant for life hath vouched his Bargainor, and not without cause, for he hath a warranty from him, and the Demandant cannot Counterplead it, for he had a Seisin, whereof he might make a Feoffment. As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day, he in reversion may enter: It is true, he may enter, and enter into the Resceit, but not into the Land for a Forfeiture; For then Fitzherbert would have abridged that Case in the Title of Entre Congeable, and not in the Title of Resceit: And the Book in 5 Ass. 3. is good Law, for there the Tenant doth confess the reversion to be in another; but in our Case the Tenant voucheth, which is a lawful Act, and according to the Covenants of his Purchase. And although the recovery was by agreement, yet it is not for that a Forfeiture; for if the Tenant for life voucheth truly, it is not a Forfeiture. Before the Statute of West. 2. cap. 3. which gave resceit to a woman, and to those in reversion, where the particular Tenant is impleaded, and made default, & reddere noluerit, no remedy for these Cases, but a Writ of Right, but no Entry; and that was for the credit which the Law gave to recoveries, car si puissoit, then is resceit given, but that only in the two Cases aforesaid: But afterward, because it was found that many particular Tenants being impleaded, would plead faintly: The Statute of 13 R. 2. gave resceit in such case. And upon what reasons were these Acts made, if in such cases the Entry was lawful? But after these two Statutes, another practice was devised; for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it, so as they could not ante judicium, and prayer to be received; for the remedy of which mischief the Statute of 32 H. 8. was made; by which, all recoveries had against the Tenant by the Courtesy, or otherwise for life or lives, by agreement of the Parties, of any Land whereof such particular Tenant is seized, should be void as Tenant by the Courtesy, etc. should be void against him in the reversion: And yet an Evasion was found out of that Statute; for such particular Tenant would make a Feoffment with warranty, and then the Feoffor should be impleaded in a Writ of Entry, and he vouch the Tenant for life, who should vouch over, and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant, etc. For the remedy of which mischief the Statute of 14 Eliz. was made; by which, it was provided that such recoveries had, where such particular Tenant shall be vouched, should ve void, if such recovery be had between them by Covin. And he conceived, That the Forfeiture is not in respect of the recovery itself, but of the Plea pleaded by the Tenant: And here in our Case there is not any Covin found, or that Sir William Pelham knew that he was but Tenant for life; but it was found that the recovery was with their assent, and that was lawful, as this Case is, for they may agree to have such recovery for further assurance; and so Sir William Pelham hath not vouched any but his Bargainor, and that according to their Covenants, and this Bargainor was not a bare Tenant for life, but had also a remainder in tail, although not immediately depending upon the Estate for life, which he cut off; therefore it was not merely a feigned recovery: And Vide 5 E. 4.2. & Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger, it is not a Forfeiture, for it doth not disaffirm the reversion, etc. contra of Aid prayer, for a stranger may release with warranty to Tenant for life, upon which he may vouch: And he reported in his Argument, That Bromley Chancellor of England sent him to the two chief justices to know their Opinions upon these Points, and they were of opinion, That the Voucher of a stranger was not any Forfeiture, and also that after the recovery was executed, he in the remainder could not enter; but they conceived that the right of him in the remainder was not bound: And he said, That after the recovery executed, he in the remainder could not enter, which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful, infiniteness of Suits would follow, which would be a thing against the credit of recoveries. As to the Objection of the Infancy the same will not help the matter, 6 H. 8. Br. Saviour default 30. Recovery had against an Infant in which he voucheth, and loseth, is not erroneous; contrary upon default: And if an Infant Tenant in tail suffereth a recovery, it is discontinuance, for in such Recovery Infancy is not respected. And in a Scire Facias upon a judgement had against the Father, the Heir shall not have his age. And he cited a Case out of Bendlowes Reports, 5 Eliz. Tenant for life, the remainder over to a stranger in Fee, Tenant for life is disseized by Covin, in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life, who entereth into the Warranty generally, and voucheth over the common Vouchee, It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant, but he was but Tenant in Law quia Vouchee; and also the recovery is a good bar to him in the remainder, notwithstanding that he was within age at the time of the recovery. And at another time it was argued by the Barons, and Clark said, That he conceived that the Entry of him in the remainder was lawful: It hath been objected that Pelham did not know that the Bargainor had but for life, or that any other person had any remainder in the Land, that is to no purpose to excuse him; for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth: For the Law presumes that none will purchase without advice of Counsel, and without knowing the Titles of the Land. And although Statutes have been made to provide against the practices of particular Tenants, yet that is no Argument that no other remedy was before. And by Littleton, If Tenant for life joineth the Mice upon the mere right, it is a Forfeiture. And he held strongly, That the judgement did not take away the Entry, a cause of Forfeiture being given before the judgement. 5 Ass 3. He in the Reversion after judgement and Execution may enter. See also 22 Ass. 31 to the same purpose. For where Tenant for life is impleaded he ought to wait upon him in the Reversion, and expect Instructions from him in defence, etc. and therefore if he maketh default, or confesseth the Action, it is a Forfeiture. And as to the supposed recompense, the same doth not help the Case, for this common Recovery is no other but an Assurance, and Recoverors are but Assignees, and they shall take advantage of Conditions by 32 H. 8. and a recoveror shall be seized to the use of him who suffers the recovery, if no other use be expressed. And he also held, that when Tenant for life bargains and sells his Land by Deed enrolled; although no Fee passeth, 1 Leon. 264. 3 Inst. 251. b. Mores r. 212. 2 Leon. 60, 65. yet it is a Forfeiture; and that by reason of the enrolment, which is matter of Record: And he said, that if an Infant Tenant for life be disseised, the Disseisor dyeth seized, and afterwards the Infant dyeth, that he in the remainder may enter: Gent. to the same intent: If Tenant for life, etc. the same is not simply a Forfeiture; for he may have a Warranty, or a Release, or a Confirmation made to him: Attornment doth not give a right, but is only a consent, yet if he who hath nothing in the reversion will levy a Fine of it to another, and afterwards the Conusee bringeth a Quid juris clamat against the tenant of the Land, and he Attorns, it is a Forfeiture. Manwood to the same intent: This is a new Case, and I have not read the Case in any Book, nor seen any Precedent of it: And it is a great Case, and a general Case, and worthy to be argued; and I conceive clearly, that here is a direct and express Forfeiture at the Common Law, without any aid or restraint of any Statute to make it a Forfeiture: The dignity of judgement in the repute of Law hath been urged which ought to stand in force until they be reversed by Error, or Attaint; And also Littleton hath been urged 481. where upon the Statute of West. 2. cap. 3. he saith, that before the Statute aforesaid, If a Lease had been made to one for life, the remainder to a stranger, and afterwards a stranger by feigned Action had recovered against the tenant for life by default, and also the tenant for life died, that he in the remainder had not any remedy: But there Littleton doth not report the same as his own Opinion, but as an Opinion conceived by a remainder upon the said Statute; and it is in truth but a mere conceit. And as to the main point he took this diversity: Such Recoveries, in which the title of the demandant stands indifferently to the Court, and Non constat, if it be good or not, being suffered by tenant for life by default or confession without Aid prayer of him in the reversion, do not make any Forfeiture, although the tenant for life hath not dealt well with him in the reversion, not having prayed in aid of him: And in such Case, If a Lease be made for life, the remainder over in Fee upon such a recovery, he in the remainder shall have a Formedon in the remainder, or a Writ of Right, and shall not oust him who recovered without Action, and that by the Common Law. Then came the Statute of West. 2. cap. 3. which gave to the Wife Cui in vita upon a Recovery against the Husband by default, whereas before she had not any recovery but a Writ of Right, and notwithstanding her former recovery ulterius necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat, and if his right be not better than the right of him in the Reversion, he shall lose the Land, notwithstanding the judgement given before for him: And that Statute gave Resceit or Entry ad terminum qui praeteriit, and that Statute is to be intended of such Recoveries where a good, or at least an indifferent Title is so as non constat Curiae, if it be good or not: After that, Tenant for life was driven to a near shift, and would not make default, or lose by nient dedire, but would plead, but yet faintly; for the remedy of which Mischief the Statute of 13 R. 2. was made, which gave Resceit in such Case; the particular Tenant being restrained by that Statute: He juggled yet, and practised to suffer a Recover secretly, without notice of him in the Reversion: To remedy which Mischief the Statute of 32 H. 8. was made, and that made such Recovery had against such particular Tenant void against him in the Reversion. It hath been objected, That the Statute of 32 H 8. doth not give any Forfeiture in that Case, but makes that the Recovery be void, therefore he in the reversion ought to tarry till after the death of the particular Tenant: To that I shall speak after. But how our Case is a common Recovery, and constat Curiae, that the Demandant hath not any right, for the Tenant might have barred him, and in truth he who recovereth is but a Purchasor: Also this recovery is not to the use of the recoverer, but to the use of him who was Tenant in it, and not paramount, as in the Case of a recovery upon a good title, a Lease for years made by him who after suffers a recovery, is good and shall not be defeated by the recoveree; otherwise it is where the recovery is upon a good Title. Vide Statute of Gloucest, cap. 11. Where upon default of the Tenant, resceipt is given for Lessee for years, yet if the Tenant vouch upon default of the Vouchee, the Lessee for years shall be received; and now resceipt of Lessee for years is out of the Book, for by the Statute of 21 H. 8. he may falsify: But no resceipt lieth in the Case of a common recovery, for he who recovereth cannot oust the Termor. As to that which my Brother Clark hath said, That the Bargain and Sale in this Case is not any Forfeiture, but when the Deed of Bargain and Sale is enrolled it is a Forfeiture, I am not of that Opinion; for although that the enrolment be of record, yet the Deed is not of record: for against the Deed enrolled a man may plead Infancy, although none can plead Non est factum to it. Also he held, that although by the Bargain and Sale, and the enrolment of it, the Bargainee had not Fee; for by such act the reversion is not removed; yet by the recovery, and the Execution of it, the Bargainee had gained the Fee out of the Lessor; for the recovery is to the use of the Bargainee against whom it was had etc. It hath been objected, That he is only a Voucher, which peradventure was lawful in this Case, by reason of the Warranty paramount, or of a release or confirmation with Warranty, and two Cases have been vouched to such purpose, viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe, vouched a stranger, the Demandant counterpleaded the Voucher, which was found for him, he in the reversion had no remedy but by a Writ of Right: So if the Vouchee had entered and lost, etc. As to that Case we ought to consider, That every Book reported in our Law is not Law: But let us observe of what Authority the Case is, truly it is the conceit of the Reporter himself, for he puts the Case, and resolves it: but there is no judge or Sergeant named in the Case, etc. The other Case is 5 E. 4. 2. Note by Hendon clearly; If my Tenant for life voucheth a stranger who entereth into the Warranty generally, and doth not know how to bar the Demandant, the Tenant shall recover in value, and the reversion of him who hath in value shall be to me in lieu of my former reversion: as release to Tenant for life shall enure to him in the reversion: But that is but the Opinion of one Sergeant, etc. But I answer to these Books, If the Demandant in such recovery have a good title so as the Tenant, or the Voucher, as Hendon saith, know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture, nor such recovery suffered thereupon: for against his will and volens nolens he suffered it: But if the Tenant had good matter to bar the Demandant, and no good cause of Vourcher, that the vouching of a stranger, or suffering of a recovery is a Forfeiture of his Estate: And here in our Case, the Defendant had not any title, The Tenant or Vouchee had not any Warranty, or cause of Vourcher; But the Tenant might have barred the Demandant if he pleased. And he said, That the Voucher only doth not make the Forfeiture; but much rather the Recovery; for when judgement is given, and Execution had, then is the Fee plucked out of him in the reversion. 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture; but here Pelham hath done more, for he hath gained Fee by the judgement, therefore à Fortiori it shall be a Forfeiture. But let us a little see, what meddlings or attempts by the particular Tenant, are causes of a Forfeiture, and what not, 5 Ass. 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion, supposing that the Tenant for life held of his Lease: The Tenant confesseth the Action, upon which judgement is given, B enters, and his entry adjudged lawful; for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion; and here it appears That such recovery by Covin, is but an Alienation, and without any strength of a recovery. And he cited many other Cases cited before by Altham, 14 E 3. Resceit 135. Where Tenant for life pleads in chief, or prays in aid of a stranger where he might bar the Demandant, and will not, it is a Forfeiture: And also 22 E. 3. 2. & 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levied by him who hath not any thing in the Land, the same is a Forfeiture, and yet that Attornment doth not divert the Reversion out of the Lessor. 50 E. 3.7. & 8. Land was given by Fine in tail, the remainder over to a stranger in Fee, the Donee took a Wife, and died without Issue, the Wife accepted Dower assigned by a stranger, he in the Remainder brought a Scire facias against the Wife, that she is Tenant in Dower of the Assignment of a stranger, and pleaded to the Title, the Demandant recovered, she hath lost her Dower, for she hath not pleaded dutifully as she ought, being a particular Tenant. Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will, and thereupon brings Quod ei deforceat, and declares upon an Estate tail, and recovers, the same is a Forfeiture, because he hath challenged a higher Estate, etc. 5 H. 7. Tenant for life joins the Mice upon the mere Right. 2 H. 6. Lessee for years being ousted, brings an Assize and recovers. 1 H. 7. Accepts a Fine of a stranger sur Conusans, etc. come ceo que il ad de son done. All these are Forfeitures. In our principal Case here, the Tenant who suffered the Recovery did not plead at all to defend the Right; but where he might have barred the Demandant, he gave strength to his pretended Title, and made it a perfect Title, and by suffering the Recovery and judgement to pass, had taken away the Reversion out of the Lessor to whom he owed Fealty, and therefore it is a Forfeiture: And without doubt it is apparent to the Court, that the Demandant in this Recovery hath not any Title; for the Recoverers in such Cases are but Assignees and Purchasers: which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers, etc. As to the inventing of Recoveries, it was a necessary Device; for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm; and it was great reason, for Tenant in tail might by the Common Law alien his Land post prolem suscitat, and then he had an Inheritance and might commit Waste: But he was so restrained by the Statute of Westm. 2. all the Realm, and the Subjects of it, were inveigled thereby; jointures of Wives, Leases of Farmer's Mortgages to Creditors, Statutes, and other Assurances defeated by their deaths, which was against the Common Law and all Conscience: These matters tending to the knowledge of the justices, and the Mischiefs thereupon ensuing very frequent, and that Tenant in tail was become a perilous Fellow, and there was no safe dealing with him; Then they taking into consideration that several Warranties and Assets, and collateral Warranty without Assets, for that in itself employed Assets did bar him, Icil. the Entail, upon that consideration they grounded the practice and usage of common Recoveries; so that by that means Tenant in tail has potestatem alienandi, as he had at the Common Law, because his authority was restored to him, and injury done to no man: But as to Tenant for life, he never had potestatem alienandi: And as to that which hath been said, That the Recovery shall stand in force till after the death of the Tenant for life; and in our Case here, Tenant in tail is living; certainly if the Law should be such, great mischief would follow, for then greater joyntresses, the Widows of great Persons, having allowed unto them great and sumptuous Houses, and Lands furnished with Timber of great value, might suffer such Recoveries and so having plucked the Fee out of the Heirs, might commit Waste, and the same should be dispunishable, etc. which should be an intolerable Mischief. And so he concluded that this suffering of a Recovery was a Forfeiture, and judgement was given accordingly. CCLII. Grendon and Albanies' Case. JOhn Grendon brought Trespass for breaking of his Close against Tho Albany: And upon the pleading, the Case was, That Francis Bunny was seized, and 1 May, 20 Eliz. by Deed indented enfeoffed N. H. to the use of the said Fr. Bunny for term of his life, the Remainder to D. in tail, the Remainder to E. in tail, the Remainder over to F. in Fee: In which Deed of Feoffment a Proviso was, That if it should happen one P. P. to die without Issue Male of his Body, that then it should be lawful for the said Fr. Bunny at any time during his life, by his Deed Indented to be Sealed and Delivered in the presence of three credible Witnesses, to alter, change, diminish or amplify any use or uses limited by the said Deed, & aliquem usum vel usus inde alicui personae, etc. Limitare post mortem ipsius Fr. to begin: After which the said Fr. Bunny 1 Aprilis, 23 Eliz by his Deed Indented, did renounce, relinquish, and surrender to the said N. H. D. E. & F. all such Liberty, Power and Authority which he had after the death of the said P.P. without Issue, ut supra: And further remised, released, and quit-claimed to them the said Condition, Promise, Covenant and Agreement, and all his said Power, Liberty and Authority, and further granted to them and their Heirs, that at all times then after, as well the said Condition, Promise, Covenant and Agreement, as the said Power, Liberty and Authority should cease, and to all purposes should be void; after which P. P. died without Issue, 1 Maij 23 Eliz. after which 20 March 24 Eliz. the said Fr. Bunny, by Indenture between him and the said D. Sealed and Delivered, ut supra, altered the former uses, and covenanted and agreed with the said D. that from thenceforth the said N. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs, etc. And note, that in this Case Fr. Bunny being but Tenant for life, enfeoffed one Tomson, upon whom the said D. entered for a Forfeiture. And it was argued by Altham, That by the Feoffment by Fr. Bunny to Tomson, the Liberty and Power aforesaid was not extinct or lost, for this Liberty and Power was not then a thing in esse, for than was P. P. alive; and also the Liberty is merely collateral to the Land whereof the Feoffment was made, 39 E. 3. 43. Fitz The Son and Heir apparent disseised his Father, and thereof made a Feoffment to a stranger, the Father died, now against his own Livery the Son shall not enter; but if the Son dyeth, than his Son shall enter, which proves that the Livery is not so violent to determine a future right, but that afterwards it may be revived, à fortiori in our Case where the thing pretended to be extinct is merely collateral. 36 E. 3. Fitz. garr. 69. In an Assize of Common, the Release of the Father with Warranty is not a bar, because it is of another thing. 15 H. 7. 11. Cestuy que use, wills by his Will, that his Feoffees shall sell his Lands, and dies, the Feoffees make a Feoffment to the same use, yet they may well Sell, so as against their Livery, the authority to sell remains to them: And he put brent's Case, Dyer 340. A future use limited to a Wife which shall be, shall not be prevented by a Fine or Feoffment; and so by the Statute of fraudulent Conveyances, 27 Eliz. cap. 4. where a Conveyance is made with clause of Revocation, if afterwards the party who made such a Conveyance, shall Bargain, Sell or Grant the said Land to another for Money, or other good Consideration paid or given, (the first Conveyance not being revoked) that then such former Conveyance against the latter Purchasor shall be void etc. The other matter was, admitting that the said Power and Liberty be not extinct by the said Feoffment, if by the Indenture of Renunciation, Relinquishment, Release, etc. it be destroyed; and he said that a thing which is not in esse, cannot be released, Litt. 105. & 4 H. 7. 10. A Lease for years to begin at a day to come, cannot be released before it comes in esse, 11 H. 6. 29. Br. Damages 138. In Detinue, the Defendant would confess the Action, if the Plaintiff would release the Damages; and the Plaintiff would have so done, but could not before judgement; for before judgement the Plaintiff had not Interest in the Damages, but he is entitled to them by the judgement: So Lands in ancient Demesne are recovered at the Common Law, and Execution had accordingly and afterwards the Tenant releases to him who recovers; and afterwards the Lord reverseth the judgement the Tenant notwithstanding his release may enter, for his Title which accrued to him by the reversal was not in esse, at the time of the release, Vide 98. contr. And it was adjudged 23 Eliz. in the Case of one Falsor, That where Lessee for years devised his term to his Wife if she should so long live, and if she died within the term, that then the residue of his term should go unto his Daughter, which should be then unpreferred, and died, his Daughter unpreferred, released to her mother all her right in the said Land, the mother died within the said term the release shall not bind the daughter, for that at the time of that release she had no title. Cook to the contrary: And he said, That by the Feoffment the said Power and Liberty is extinct: And he agreed the Case cited before 15 H. 7 for in such Case the Vendee of the Feoffees shall be in by the Devise, and not by the Feoffees. 9 H. 7. 1. The Husband makes Discontinuance of the Lands of his Wife, and takes back an Estate to him and his Wife by which the Wife is remitted they have Issue, the Wife dyeth the Husband shall not be Tenant by the Courtesy; for he hath extinguished his future right by his Livery. 12 Ass. P. ultimo. A Praecipe against A who loseth the Land by an erroneous judgement, and after Execution had, enters upon the Demandant, and makes a Feoffment, his Writ of Error is gone, 38 E. 3. 16. In a Scire Facias to execute a Fine, the Plaintiff recovers, and makes a Feoffment in Fee, and afterwards the Tenant by Scire Facias by Writ of Deceit reverseth the judgement, now the Plaintiff in the Scire Facias shall not have a new Scire Facias, 34 H. 6. 44. A. recovers against B. by false Oath, and after Execution had, B. enters and makes a Feoffment to a stranger, who Enfeoffs him who recovers, it is a good Bar in an Attaint. 27 H. 8. 29. The Feoffees to an use are disseised, the Disseisor Enfeoffs Cestuy que use, who Enfeoffs a stranger, now by that Feoffment his right to the use is gone. And as to the release, the same is not properly a release, but rather a defeasance to determine the Power and Authority aforesaid, as if A enfeoffed B. with Warranty, and afterwards B. covenants with A. that the said Warranty shall be void, the Covenant shall enure to defeat and determine the Warranty. And afterward judgement was given against the Plaintiff. CCLXXIII. Sir Francis Englefields Case. Vide this Case Reported by Cook in Rep. 7. and by Popham 18. THe Case to recite at large was this: Sir Francis Englefield Kt. being seized in Fee of the Manor of Englefield in the County of Berks, and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time, and remained out of the Realm in the parts beyond the Seas above the time of his Licence, whereby the Queen by her Warranty under her Privy Seal required him to return, upon which he was warned, but did not come; whereupon the Queen seized his Lands for his contempt. After which the Statute of Fugitives was made 13 Eliz. upon which by Commissions found upon this Statute, all his Lands were newly seized; and afterwards 17 Eliz. by Indenture made between him and his Nephew, and Sealed by the said Sir Francis at Rome, the said Sir Francis covenanted with his said Nephew, upon consideration of Advancement of his Nephew, and after consideration to raise an use, that he and his Heirs, and all others seized of the said Manor, etc. shall hereafter stand and be seized of them, to the use of himself for the term of his life, without impeachment of Waste, and afterwards to the use of his Nephew, and of the Heirs Males of his Body, and for default of such Issue, to the use of the right Heirs and Assigns of the Nephew for ever, with a Proviso, that if the said Sir Francis shall have any Issue Male of his Body, that then all the said Uses and Limitations shall be void and that the said Manors, etc. shall be as before. Afterwards the said Sir Francis was attainted of Treason, supposed to be committed by him, 18 Eliz. at L. in partibus transmarinis; and the Attainder was first by Outlary, and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the said Condition was given to the Queen; and at the same Parliament it was Enacted, That all and every Person and Persons, which had, or claimed to have any Estate of Inheritance, Lease, or Rent, they not entered of Record, or certified into the Court of Exchequer, of, into, or out of any Manors, Lands, etc. by or under any Grant, Assurance, or Conveyance whatsoever had or made at any time after the beginning of her Majesty by any persons attainted of any Treasons mentioned in the said Act, after the 8 day of Feb. 18 Eliz. or within two years' next ensuing the last day of the Session of the said Parliament, shall openly show in the Court of the said Exchequer, or cause to be openly shown the same, his or their Grant, Conveyance or Assurance, and there in the Term time, in open Court, the same shall offer, and Exhibit, upon his or their Oath, affirming that they have not the same, nor can come by it, or that it was never put in writing, than the Effect thereof to be entered and enrolled of Record, or else every such Assurance should be void, and of none Effect to all intents and purposes, saving to every person and persons, (other than the parties and privies to such Conveyance, and such as shall not Exhibit the said Conveyance according to the true meaning of this Act) all such rights, etc. Whereupon the said Francis the Nephew, the 20 day of November, 30 Eliz. in his own person affirmed upon his Oath, that he had not the said Conveyance, nor knew not how to come by it, but delivered the Effect of the Assurance, omitting the time when it was made, otherwise than that it was made after the beginning of the Queen's Reign, and before the Treason committed by Sir Francis, and before the Statute of 13 Eliz. against Fugitives, and omitting also the last clause of the tender of the King; and this he offered openly in the Court of the Exchequer the same day: After which the Queen being moved with the said Condition, made a Warrant by Letters Patents under the Great Seal, dated 17 Martii, 13 Eliz. to Rich. Broughton and Henry Bourcher Esquires for her, and in her place and stead, to deliver or tender to the said Francis the Nephew a Ring of Gold, to the intent to make void the uses and limitations limited by the said Indenture, and to return their proceed upon it into the Court of Exchequer; whereupon they made a tender of a Ring of Gold to the said Francis the Nephew the 18 day of November, 31 Eliz. which he refused to receive. And the two years after the said Session of Parliament was the 13 day of March 31 Eliz. and the said Broughton and Bourcher returned all this that they had done as before, with their Commission out of the Exchequer: And this Case being a great case, and consisting of many doubts and questions, was often argued. And this Term, scil. 33 Eliz. It was argued by Moor of Counsel on the part of Francis Englefield; and he said, when Sir Francis Englefield covenanted to stand seized to the use of himself for life, etc. this was not any new use, but part of the ancient use which was in Sir Francis before, for there was no Consideration to raise a new use to himself; for a Consideration is a cause, or an occasion meritorial requiring a mutual recompense in fait, or in Law, Dyer 16 Eliz. 33. b. mutual. 1. of each part, and here this ancient use remaineth. For Sir Francis cannot simul & semel agree and suffer, and here is a bare Covenant without any Consideration on the part of Sir Francis, which see Dr. and Student 100 cited by Br. Feoffments to Uses 46. A man cannot limit an use to himself to be a new use upon an Estate executed, as upon a Feoffment, but it shall be the ancient use; much less upon a Covenant. And that was Milfords' Case, Pasch. 31 Eliz. Rot. 154 in the King's Bench, where an use limited to the right Heirs of the Feoffor was holden the ancient use, quod vide also in the case of the Earl of Bedford, and there is no difference between our case and the said cases, unless in the said cases the use is limited in the end, and in our case in the beginning of the Conveyance. But perhaps it will be Objected, That the particular Estate shall be good for necessity for to support the Estate limited in the Remainder, which is limited upon good consideration, for otherwise the Remainder shall be distrained: That is not any reason, for that conceit in Bayntons' case in Blow. Com. 307. 8 Eliz. hath been over-voted to be no Law in the case of the Lord Paget in this Court very lately. And he said, That the condition conceived in the Proviso is not given to the King. By the Common Law in case of Escheat, the party comes in the Post; but a Condition runs in privity: And although the Statute of 33 H. 8. gives to the King Conditions, yet it doth not give the performance of them, or ability to the King to perform them. And there are three Reasons wherefore this Condition cannot pass to the King: 1. There is a Condition in the Proviso which precedes the Condition of the Tender, viz. If the said Francis my Nephew be given to intolerable Vices, then if the said Sir Francis deliver or offer, etc. and in the whole pleading it is not averred, that the Nephew was given to intolerable Vices; therefore the precedent Condition not being performed, the second Condition is not ripened, nor in season. 2. The substance of this Condition consists in the will and pleasure of Sir Fr. Englefield, therefore it cannot be given to the Queen. 3. The prejudice which should come to Francis the Nephew if this Condition should come to the Queen, Vide Br. Temps H. 8. A Foundership cannot Escheat, or be forfeited by Attainder of Felony or Treason, for it is a thing annexed to the Blood which cannot be separated; and he said also that the Condition was gone before that tender, for the Conveyance by which the Condition was granted, was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted, That every person within two years after the last day of this Session shall openly show and bring forth into the Exchequer his Conveyance, and there in the Term time, in open Court shall Exhibit the same to be entered and enrolled of Record; and here the end of the Session was such, that all the Terms of the said two years were passed before the tender made by the Queen; and although the two years were not past, yet all the Terms were passed, and the Conveyance ought to be showed in Term time, therefore the true time is incurred before the Tender, and then the Conveyance is void, and by that the Condition gone. When the Queen was Tenant for the life of Sir Francis, and makes a Lease for years, and afterwards by the Condition hath the Inheritance, if now she shall avoid the Lease made by her when she was Tenant for life? A Disseisor makes a Lease, or grants a Rent-charge, and afterwards the Disseisee releases unto him, he shall not avoid his own Act. A man seized in the right of his Wife makes a Lease for years, hath Issue, and so is entitled to be Tenant by the courtesy; the Wife dyeth, he shall not avoid his Lease: Feoffor and Feoffee upon condition join in a Lease for years, the Condition is performed on the part of the Feoffor, he shall not avoid his Lease: And the Prerogative of the Queen shall not alter the matter against aequum & bonum: As to the Statute of 29 Eliz. it was not the intent of that to avoid Estates claimed for, or by the Queen; for the Estate was made for the benefit of the Queen. As to the words of the Statute, every person or persons which hath, or claimeth to have, etc. the Queen is not within the words. If a Statute ordains attendance, or restraint of any Liberty which was before at the Common Law, there the Queen shall not be within it: As to attendance, the Queen is not bound to make claim upon a Fine levied: As to re-grant, the Queen is not bound by the Statute of Westm. 3. Quia emptores terrarum: also where matter of penalty is imposed. Also here is an Oath to be taken, etc. the Queen being Tenant for the life of another, leaseth the Woods, and grants to the Lessee power to cut the Woods, and convert them to his own use. Now, if after the Inheritance cometh to the Queen, if the Queen may impeach her Grantee; truly the property of the Woods and Trees was in the Queen at the time of the Grant, and although the Inheritance came to the Queen afterwards, yet the same shall not overthrow the first Interest of the Grantee. Lessee for life, or for years, before the Statute of Gloucester, could not be impeached for Waste; therefore, as I conceive, the property of the Trees was in him, for there was no remedy for them against him. See the reason of that in Dr. and Student, Quasi, the property of the Trees pass to the Lessee with the Demise, which shall be taken strongly against the Lessor. If the Lessee cutteth the Trees, the Lessor shall not have Trespass against him, nor Detinue for the Trees. Lessee without impeachment of Waste cutteth the Trees, and leaves them upon the Land, and dies, his Executors shall have them, and not the Lessor. The Lessor grants omnes boscos, & arbores suas, nothing passeth, for they pass to the Lessee, if they be not excepted. The Lessor against his own Lease cuts the Trees without the agreement of the Lessee, Trespass lieth, 5 H. 4. 56. The Heir being in Ward, cut Trees in his Lands in the possession of his Guardian, who brought an Action against the Heir, it was adjudged maintainable, although the was in the Heir. Egerton Solicitor to the contrary. Admit the use in Sir Francis be the ancient use, yet it is but for life; and then when the Queen, having the Estate of Sir Francis, makes a Lease for 40 years, with the grant of the woods, the said Lease was void, for the Queen was deceived in her Grant: Sir Francis was punishable for Waste; therefore the Queen having his Interest, ought not in justice to have cut the great Wood And it is to be presumed, That if the Queen had known the smallness of her Estate, she would not have made so great a Lease, nor such a Grant of the Wood The King seized of Land in his own right, reciting by his Letters Patents, that he hath it by Attainder of J. S. gives the same to another, the Gift is void. The King licenceth one to appropriate an Advowson, without being informed that the same is holden in chief, it is void. A licence to alien, whereas in truth the Land is holden in tail, the Reversion or Remainder in the King, is also void; and here in our case, the Queen hath but a particular Estate for the life of another, and here out of that petty Estate is drawn a Lease for 40 years, where Lessee for life was 60 years of age at the least, and also a Grant of all the Trees: If the Queen hath a particular Estate, and grants totum Statum suum, without reciting of such particular Estate, the Grant is void; the Queen hath the Profits of the Lands of one who is Outlawed in a personal Action, and grants to another the Land itself, it is void, for it is a wrong to a third person, which the King cannot do. But here, the Special Interest of the Queen ought to be recited; Now when the Queen being Tenant for the life of another, makes Leases ut supra, and afterwards the Fee cometh to the Queen, the Estate out of which the Leases are derived being determined, the Leases also are determined, scil the Estate for the life of another by the accession of the Fee-simple, and the Queen is in by a new right: It was adjudged 29 Eliz. here, That where the Queen had the Land of a Fugitive for the life of another, and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder, the same Lease was void. King E. 6. gave to his Sister Mary Manerium de B. for her life, secundum tenorem & effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was, that she should have it as long as she remained unmarried; she granted a Rent-charge, King E. 6. died, by which the Fee descended to the said Mary, being Queen of England: and afterwards she married. He made it a Quaere, if the Rent be not gone. Dyer 3 & 4 Phil. & Mary 240. But Bendloes Reports the same Case to be adjudged, That the Rent was gone. Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea, his Licence expired, the Queen directed to him a Privy Seal with her Commandment to return, which he received, but did not return, but adhered to the Queen's Enemies there, upon which the Queen seized his Lands, and 8 Eliz. granted a Manor parcel thereof, and all profits thereof, quam diu in manibus nostris fore contigerit, afterwards by Act 14 Eliz. (for there was some doubt if the Queen might make Leases, grant Copyholds or usual Woodfalls of such Lands, or only take the ordinary profits thereof, as vesturam terrae) it is explained, that during the Interest of the Queen, she might do, ut supra, as Tenant for the life of another might do, upon which a new Seizure was made for the Queen, and a Steward appointed by the Queen's Letters Patents, who held a Court, and took Surrenders in the hand of the Queen, and granted Admittances, etc. And it was resolved by the two Chief justices, That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before, by the first Seizure at the Common Law, notwithstanding both the said Statutes, and so the Courts holden by the Queen void, and all Surrenders and Admittances also: And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded, That if by the said Statutes, or any of them had had a new right, the last Copy had been good, notwithstanding the Grant of the Manor before: Also for 8 Ass. the King grants Custodiam terrae & haeredis quam diu in manibus nostris fore contigerit, the Heir being a Daughter, and after a Son is born, now the Grant of the King is void; Tenant in tail, the Reversion in the King discontinues, the Discontinuee is attainted, the King seizeth, and leaseth for years, Tenant in tail is attainted of Treason; now the Queen shall avoid her own Lease. So if the Disseisor be attainted, upon which the Queen seizeth, and leaseth, and afterwards the Disseisee is attainted: And he cited the Case of the Abbot of Colchester, 13 Eliz. The Abbot committed Treason, and afterwards by the Statute, or by Surrender, the Abbey came to the Crown, who leased the Land for years, the Abbot is attainted of the said Treason; now the King shall be seized by force of the Attainder, and shall avoid his Lease. As to the Leases made to the Defendant by the Queen, one was made after the Statute of 29 Eliz. and the same is not saved by the saving there; for the words are, of Estates then in esse. 1. Such Estate as they had before the making of the Act: As to Leases made before they are drowned in the Fee-simple, which accrued to the King by the Attainder etc. and here by this Statute, the Estate of the Queen for the life of another is not saved by the Statute, and then the Leases derived out of it are not saved. The Queen is not bound by the said Statute to exhibit any Conveyance, for she shall not take any Oath, according to the Statute; and if the Queen be not within the Body of the Act, she is not within the saving. Now as to the Condition, The Statute of 33 H. 8. gives to the Queen Uses, Rights, Conditions. It hath been Objected, That such Conditions are intended to be given to the King, which are to be performed on the part of the Donee, Lessee, Grantee, Covenantee, but not on the part of the Grantor, etc. For it was in the will of the Grantor if he would perform them or not, and a Will cannot be transferred over. But as to that it may be answered, That a Will by Parliament may be transferred over, for Parliamentum omnia potest. It hath been Objected. If that shall be said the Will of Sir Francis. which now is the Will of the Queen, it shall be a great prejudice to Francis Englefield the Nephew; for now he shall be doubly bridled by his Uncle, and by the Queen. It hath been Objected, That here is a Conditional Condition, 1. If the Nephew shall be given to intolerable Vices, and it is not added to enable the Queen to take advantage of the Condition, that he is otherwise than of good behaviour and conversation but the words of the Proviso clear the matter, 1. Lest he should be given to intolerable Vices, and not if he be given, etc. So as it is not a Condition to a Condition, but a Motive to a Condition. And the Statute of 29 Eliz. by which Sir Francis was attainted, gives to the King all conditions. It hath been objected, that in the said Statute of 29 Eliz. is a saving, by which Leases made by the Queen are preserved: But if that Proviso be well observed, it doth not extend to our case. 1. That Act extends to make void any Grant, Lease, etc. made by the Queen after the Treason committed, etc. but that shall be of such force, as if the said Act had not been made. As to that I say, That this Statute doth not add or detract from such Leases, but leaves them as it found them; for the Statute gives to the Queen the Condition, which Condition avoids the said Leases; for it avoids the Estate of the Queen out of which the said Leases are derived: And although that the Conveyance, as to the benefit of Sir Francis or his Nephew, be void by the Statute for not enrolment of them, yet it is not utterly void as to the Queen also. The Statute of 1 Eliz. Enacts, That Leases made by Bishops against the Form of the Statute, shall be void: Yet they shall not be void against the Bishop himself or against the Lessor: Exception hath been taken, for that the tender of the King is not found by Office: But he needs no Office, for the tender is the Act of the Queen herself, there she ought not to be informed of it; for to what purpose shall the Queen be certified of that which she herself hath done: The Queen makes a Lease for years, upon Condition that the Lessee surrender to her the Manor of B here for the not doing of it, no Office is requisite. Tenant of the King in Capite aliens by Fine, that needs no Office, for that appears upon Record; so here. And although the Condition be returned in the Exchequer after the Term; yet it is well enough, for the Exchequer is never shut, as to take and receive Money, Certificates made to be Enrolled; although it be shut as to all judicial Acts. And although no tender at all be certified, it is not to the purpose, for the tender makes the Estate void without any other thing: And it is not like to a Capias ad satisfaciendum, for that is Ita quod Habeas Corpus, etc. therefore the Arrest is not sufficient by itself; but the same aught to be remembered with an Ita. quoth, etc. But as to that which hath been said, That the Queen shall not avoid her own Lease, the same is not so, nor in case of a common Person: As if Tenant in tail enfeoffeth his Heir within age, who makes a Lease for years at his full age, Tenant in tail dies, Now the Issue shall avoid his own Lease, for he is remitted: A Disseisor levies a Fine to a stranger, the Disseisee enters upon the Conusee, and enfeoffs the Disseisor, now he shall avoid his own Fine, à multo fortiori in the Case of the King. Now it is to see. If the Grant of the Wood by the Queen, being Tenant for the term of another's life, be good, or not. He conceived it was not; for she was deceived in her Grant, not knowing that she was but a particular Tenant: It was Objected, That the Queen hath property and right in the Trees and Woods, forasmuch as no Waste or Trespass lieth against her if she cast them down: Certainly the Lessee, if the Trees and Woods be not excepted, hath the property in them, but not the absolute property, for the Writ of Waste shall say, ad exhaered' Q●erentis, for he cannot cut them, Id enim tantum possumus, quod de jure possumus, perhaps the Lessee shall have the Windfalls, because they are severed from the Inheritance by the act of God, not of the Lessee himself; and see 27 H. 6. Waste 8. and also in Statham titulo Waste. A. leaseth to B. for life, without impeachment of Waste, a stranger cuts Trees, and the Lessee brings Trespass, he shall not recover damages for the value of the Trees; for the property of the Body and the Tree is in him who hath the Reversion, he may give it, by which it appeareth, that the Lessee is not to recover, but only for the cropping and the breaking of his Close, à fortiori in case where the Lease is made without the clause absque impetitione vasti, as the Case at bar is: And therefore when the Queen having so feeble an Estate, makes such a Grant, scil. Grants all the Woods etc. the Grant is void, for she was deceived in her Grant; by which (if it should be good) she should wrong her Subject: A Grant to the Queen shall have a reasonable construction▪ as the Grant of a common Person. A. grants to the Queen Common in all his Lands, the Queen by that Grant shall not have Common, but in Lands commonable, not in his Land where his Corn is growing, or in his Orchard, or Gardens: Tenant for life grants all the Wood upon his Land, nothing passeth but that which he may lawfully grant. So in Cases of Grants of the King, 22 Ass. 49. the King grants to one bona & catalla tenent' suorum, fugitivorum & qualitercunque dampnorum; the Grantee shall not have the Goods and Chattels of one who hath killed the King's Messenger. So in Grants of Amercements, the Grantee shall not have a Special Amercement etc. So here, the Grant of all Woods ought to be intended of such Woods (as Vnderwoods') which the Queen might lawfully grant without wrong to another. And he said, That when the Queen hath granted the Land and the Woods for 40 years, that Grant cannot be divided; and the words of the Grant are, That it shall be lawful to cut the Woods during the space of 43 years: Now forasmuch as the Lease is surrendered ut supra, the liberty of cutting the Woods is gone also. A man bargains and sells his Manor with all Woods upon it growing, the Deed is not Enrolled, so as the Manor doth not pass, the Woods shall not pass in gross, for the Grant shall not be divided. See more after Sect. 276. Trin. 31 Eliz. In the King's Bench. CCLIV. Brown and Peter's Case. PHilip Brown Executor of Eliz. Brown, brought an Action upon the Case against John Peter, as Executor of W. Brown, and declared, That the said William Brown was indebted to the said Eliz. in 80 l. Cumque ad specialem instantiam of the said William Brown, It was agreed, that the said William Brown should retain the said Sum in his hands until the said Eliz. should come of full age: In consideration thereof he promised to give her 100 l. It was found for the Plaintiff, who had judgement to recover, and now the Defendant brought Error, and assigned for Error, because the place of the Agreement was not showed, Sed non allocatur; for that is the Consideration which is not traversable; also it is not showed certain, that Brown retained the 80 l. for so long time, Sed non allocatur, for he shows in his Declaration, That the said Sum was in the hands of the said William Brown, and it shall be intended that so it there continued. Trin. 31 Eliz. In the King's Bench. CCLU. Higham and Cook's Case. EJectione firmae by Higham against Cook, The Plaintiff declared upon a Lease for years, to have and to hold to him from the Sealing and Delivery of it; and declared that the Sealing and Delivery was 1 Maij, and the Ejectment the same day: And this matter was moved in Arrest of judgement, that the Ejectment could not be supposed the same day, for the Lease did not begin till the next day ensuing the Sealing, Ejectment. etc. But the Exception was not allowed by the Court; for where the Lease is to begin from the time of the Sealing and Delivery, or by these words for 21 years' next following, the Ejectment may be well supposed to be the same day; for the beginning of the Lease is presently upon the Sealing and Delivery, and such a Lease shall end the same time and hour as it began. CCLVI Trin. 28. Eliz. In the King's Bench. IN an Action upon the Case upon Assumpsit, the Case was; Land was devised to a Feme-sole for term of her life, and she let the same to the Plaintiff for 5 years, to begin after the death of the said Woman, and afterwards by Deed bearing date 18 October, leased the same Land to the same Plaintiff for 21 years to begin at Michaelmas before, and in pleading, it was showed, That virtute cujus dimissionis (posterioris) the Plaintiff entered, & fuit possess. crastino Michaelis. which was before the making of the Lease, and the Plaintiff in his Declaration declared, That the Defendant in consideration that the Plaintiff had assigned to him the said Leases, had promised to pay to him 630 l. It was found for the Plaintiff. Cook, For where the Plaintiff in an Action upon the Case declares upon two Considerations, in such Case although the one be void, yet if the other be good and sufficient, the Action is maintainable, but the Damages shall be given without respect had to the Consideration insufficient, and the Plaintiff was to declare upon both Considerations; for the Assumpsit upon which the Action is conceived, was in consideration that both the Leases were assigned to the Defendant, and our Declaration ought to be according to the Assumpsit, and it was not material, although that one of the Considerations was utterly void. Another Exception was taken, Because the Lease is set forth to be made 18 October, and that by virtue thereof the Plaintiff entered, Cro. Mich. Then the Plaintiff entering Cro. Mich. was a Disseisor, and then being in by disseisin, he could not assign his Interest to another, and that appears clearly to the Court upon the whole matter. But Cook said, That shall not hurt us, for it is but matter of surplusage to say, Virtute cujus, etc. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration, that the Trespass for which the Action was brought, commenced 10 H. 6. with a Continuando until the day of the Action brought, viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris, Anno 17 H. 6. And Exception was taken to the Declaration, because the continuance of the time was not put in certainty. But the Exception was not allowed, for it is certain enough before the viz. the day of Writ brought, and so the viz, is void, and all that which follows upon it. And so here, this Clause Virtute cujus est, totum sequitur est omnino void, 7 H. 4.44. Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit, & illud solvere recusavit. Exception was taken to the repugnancy, for it would not be carried away, if it were not paid before; yet the Writ was awarded good, and the first word Toloniam asportavit holden void: So here in the principal Case. As to the other Exception, it is clear, That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease; for there was a Communication betwixt the Parties of such a Lease to be made, or of such an Assignment, and peradventure the Entry was by assent of the other part, and then no Disseisin. And posito, it should be a Disseisin, yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit, according to the consideration, and delivered to the Defendant both the Indentures of Demises, and so he hath granted all that which he might grant: And if it be a void Assignment or not, is not material, for quacunque via data, the Consideration is good, and then the Assumpsit good also. Egerton Solicitor contrary: In every Action upon the Case upon Assumpsit, three things ought to concur, Consideration, Promise, and breath of Promise; and in this Case the Assignment of the Lease to begin after the death of the Lessor, is void, being but Tenant for life, and no Consideration upon the confession of the Plaintiff himself. And upon the second Consideration it appeareth, the Lessor, viz. the Wife who held for life, had but a right to the Land demised, for she was disseised; for he to whom the Land was after let, entered before the Lease was made; for it doth not appear that he entered by force of any agreement made before the Lease; therefore by his Entry he was a Disseisor. It was also moved, That here was not any sufficient consideration, for by a bare or naked delivery Nihil operatur; and here is not any word of Give or Grant. To which it was answered, That the delivery of the Indenture was not a bare Bailment, but a Delivery to the use in the Indenture, and so it is pleaded, and therefore thereby an Interest passed, for such a delivery cannot be countermanded. An Indenture with an Averment shall never make an Estoppel. Clench justice, If I deliver any thing to one for his proper use, an Interest passeth; but if it be to the use of another, no Interest passeth: The party may have usum, but not proprietatem. CCLVII. Mich. 18 Eliz. In the King's Bench. Contract. IF a Contract be made betwixt two here in England, scil. that one of them shall carry certain Goods of the others to Bordeaux in France, and sell them there, and with the money thereof coming, shall buy other Goods for the use of him who was the owner of the first Goods, and safely them deliver to him in London: If now the party sell them in Bordeaux, and buyeth others with the moneys thereof, and brings them into England, and there converts them to his own use; upon this matter an Action lieth at the Common Law for the Contract, and the Conversion being the cause of the Action, was made in England: But if the Contract only was in England, and the Conversion beyond the Seas, the Party at his Election may sue at the Common Law, or in the Court of Admiralty: And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him, and to Merchandise with them for his use; if the Factor receiveth them, and converts them to his own use, the Father shall be sued in the Admiralty. 25 Eliz. CCLVIII The Earl of Huntingdon and the Lord Mountjoyes Case. IT was agreed by the two Lord Chief justices, 1 And. 308. upon conference had with the other justices in the Case between the Earl of Huntingdon and the Lord Mountjoy, That where the Lord Mountjoy by Deed indented and enrolled, bargained and sold the Manor of Camford to Brown in Fee, in which Indenture a Clause was Proviso semper; and the said Brown covenants and grants cum and with them the Lord Mountjoy, his Heirs and Assigns, That the said Lord, his Heirs and Assigns, might dig for Ore in the Wastes of Camford. And also to dig Turf there to make Allom and Copperice, without any contradiction of Brown, his Heirs and Assigns; that now here is a new Grant of an Interest to dig, to the said Lord and his Heirs in the Lands aforesaid, and not a bare Covenant; and it was holden also, that the said Lord could not divide the Interest granted to him in form aforesaid, viz. To grant to another to dig one part of the said Waste, etc. But they were of Opinion; That Brown, his Heirs and Assigns, notwithstanding the said Grant to the said Lord, Owners of the Soil there might dig there. It was further moved in this Case, That the said Lord had demised the said Interest to one Laycott, who assigned it over to A. and B. and if the said Assignment to two were good or not, was a further question; for if to two, so he might do to twenty, and so a surcharge might be to the Tenant of the Soil. And as to that, the said justices were of Opinion, That the said Assignment to two was good: But the two Assignees ought not to work severally, but together, with one Stock, and with such Workmen as belonged to them two. And Note, it was holden in this Case, That this word (Proviso) being coupled with other words of Covenant and Grant, did not create a Condition, but should be of the same nature as other words of Grant. CCLIX. Pasc. 25 Eliz. In the Common Pleas. IT was found upon a Special Verdict in Trespass, that the place where, etc. was Copyhold Land, and that the Custom there is, That every Feme covert there might devise her customary Lands to her Husband, and surrender the same in the presence of the Reeve, and six other persons; and it was further found, That A. was seized of certain Copy Land, having Issue B. and C. his Daughters, and died, they both took Husbands, and B. devised her part by her Will to her Husband in the presence of the Reeve and six other persons, and afterwards at another day she surrendered to the use of her Husband, who was admitted accordingly: the Wife died, the Husband continued the possession, and the Husband of the other Daughter brought Trespass. Rhodes Sergeant, The Custom is not good, neither for the Surrender, nor for the Will; for it is not certain what Estate she might devise by the Custom, and also it is against reason that a Feme covert surrender to the use of her Husband: And he cited the Case in Fitz. 13 E. 3. Dum fuit intra Aetatem 3. where Custom is pleaded in the City of Gloucest. That every person might alien his Land when he knew how to tell 12 d. and to measure an Ell of Cloth, and that Custom was disallowed for the incertainty, for he ought to have showed the certainty of the time, scil. at what age, and the certain number of years. Vide also 19 E. 2. Fitz. Gard. 127. That an Infant should be out of Ward when he could do as aforesaid. And as to the Surrender, it is against reason that a Feme covert should give to her Husband, for the Wife hath not any will but the will of her Husband; and the Statute of Wills utterly excepts Feme coverts as an unreasonable thing to suffer them to make Devises; and although the Statute doth not extend to Customary Lands, yet the like reason, the like Law. But by Anderson, the Equity of that Act extends to Copyholds, as also doth the Statute of Limitations: And it was said by some of the Sergeants that because the Husband was admitted, Trespass did not lie against him for his Entry was continued with a lawful Ceremony. In this case, it was moved by Anderson, If a Copyholder maketh a Lease for years by word, if the Lessee might maintain Ejectione firmae, and he conceived not, for that ought to be a Title in facto, and not by conclusion; for neither the judge nor the jury are estopped: And he said, that if the Tenant at will makes a Lease for years, that it is not a good Lease between the parties to it, but that the Lessee might well say that he had nothing, etc. Mead contrary: And Anderson said, The Book of 12 E. 4. 12. is not Law, scil. If Tenant at will makes a Lease for years it is not Disseisin, but the said Book is contrary: Also Anderson said, That in the principal Case the Presciption is not well laid, Quod quaelibet foemina cooperta viro poterit, etc. whereas there should be also words, scil. Et usae fuerunt, etc. And it was said, That if the Devise be good, than the Plaintiff and Defendant are Tenants in Common, and the Action not maintainable. Pasc. 30 Eliz. In the King's Bench. CCLX. Jeroms Case. JErome made an Affray, of which complaint being made to the Mayor, the said Mayor sent the Defendant, being Constable, to bring the said Jerome to him, by virtue of which they went to the house of the Plaintiff, and signified to him the command of the Mayor, and would have brought the Plaintiff to him, and the Plaintiffs Wife assaulted them, and they gently lay their hands upon the Wife, which is the said Assault, Battery and Wounding, etc. upon which it was demurred. Cook for the Plaintiff; Customs. The Custom is not good nor reasonable, vide Magna Charta 29. Nullus liber homo capiatur, nec imprisonetur, etc. nisi, etc. per legale judicium parium suorum vel per legem terrae; Ergo, shall not be taken and imprisoned upon a bare suggestion. Vide 24 E. 3. Br. Commissions 3. That where a Commission issued to apprehend all who were notoriously suspected for Felons and Trespassors, although they were not Indicted, it was holden against Law, and therefore was revoked. Vide the Statute of 1 E. 3. cap. 9 25 E. 3. 4. 28 E. 3. 3. Justice of Peace not by Prescription. 37 E. 3. 18. & 42 E. 3. 33. 2. To be a justice of Peace doth not lie in Prescription; for no justice of Peace was before the Statute of 1 E. 3. and the beginning of them being known, Prescription cannot be. 3. Admit that the Mayor was a justice of the Peace, yet he cannot determine any thing out of Sessions. 4. The Prescription is, That the Mayor may send for him, and doth not say within the City; and it shall be an unreasonable Prescription to say that the Mayor may send for him; for in such case in any place within England may he send. 5. It is not showed that they had a Corporation which might prescribe. 6. The Wounding is not answered, for Molliter injicere manus cannot be taken for a Wounding, nor for an answer to the Battery. Fleetwood Sergeant and Recorder of London, If the Statute of Magna Charta should be observed no Felon is duly handled at Newgate; and here we have not pleaded by way of Prescription, but of Usage. Consuetudo and Usage are all one: And afterwards judgement was given for the Plaintiff; for the Plea in bar was holden to be naught, because the Wounding was not answered, and the Custom is too general; and also for the fourth Exception. Mich. 32 Eliz. In the King's Bench. CCLXI. Goram and Fowks Case. Prohibition. THe Case was, The Defendant libelled in the Spiritual Court, that whereas he was Administrator to one A. and was bound in the Spiritual Court to bring in a true Inventory of all the Goods of the Intestate, that the Plaintiff detained Jura & Credita, by reason of which he could not put in a true Inventory; and upon that the Plaintiff prayed a Prohibition, surmising that he himself claimed Property in the said Goods; and the Ecclesiastical Court would not allow of it; and the Trial of the said Goods did belong to the Common Law: And a Prohibition was granted. Trin. 33 Eliz. In the King's Bench. CCLXII. Mountjoyes and Andrews Case. IN Scire Facias upon a judgement in Debt; The Defendant pleaded, that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leice●●er, by force of which the said Sheriff took divers Sheep of the Defendant, Execution. & adhuc doth detain them: return of Writ. It was holden by the Court a good Plea▪ although he doth not say that the Writ was returned; for the Execution is lawful notwithstanding that, and the Plaintiff hath remedy against the Sheriff. CCLXIII. Vide this Case reported by Cook 1 Part, by the name of capels Case. THe Case between Hunt and Gately in the Exchequer Chamber, was now argued by Fen, That the Rent granted by him in the Remainder upon an Estate tail is good, and shall bind the Land after the Estate tail determined, notwithstanding the common Recovery suffered by the Tenant in tail in possession. Before the Statute of Westm. 2. of Donis Condic, etc. no Remainder could be limited upon an Estate tail, for that which remained in the Donor was but a possibility, and therefore then a Formedon in Remainder did not lie: But the said Statute which provided a Formedon in the Descender, provided also by Equity a Formedon in the Remainder; for a Formedon in the Reverter, as appeareth by the said Statute, was in use in Cancellaria. And now here in our case is a Remainder lawfully vested in the Grantor, which he may dispose of as he sees good; and therefore when he grants a Rent-charge out of it, the same is a thing vested in the Grantee, and by no subsequent act can be divested, and although the Estate which was charged be now charged by the Recovery, yet it is the same Land which was charged, and therefore the charge shall continue; as if a gift in tail be rendering Rend, and the Donee levieth a Fine, yet the Rent remaineth, and the Donor shall distrain. 48 E. 3. 3, 9 So here, If after the grant of this Rent, Tenant in tail in possession levies a Fine, by which the Remainder which was charged is discontinued, and afterwards the Conusor dies without Issue, the Grantee shall distrain upon such possession which passed by the Fine. As if A. lease to B. for life, and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dies, although that A. cannot re-enter, but suffers the said torcious Estate, gained de novo by wrong, to continue; yet B upon such possession shall distrain for the Rent, for it is the same Land which was charged; and by Law a thing in abeyance may be charged: As if a Parson grant a Rent-charge to begin after his death, and the Patron and Ordinary confirm it, it shall bind, although the Grant doth not take effect in the life of the Grantor, but when the Freehold is in abeyance: So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage, the same is good, and shall bind the Successor, and yet at the time of the Grant the Freehold of the thing granted is in abeyance. Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a judgement. 22 E. 3. 19 5 E. 3. Fitz. Dower 343. By Bracton, Jus, concerning a real thing, is threefold: 1. Jus terrae, scil. the Ownership of the Land. 2. Jus in terra, as a Rent, Common, etc. 3. Jus ad terram, scil. Right permanent. And by this Common Recovery in our case Jus terrae shall be bound, but not Jus in terra: And he said, That if Land be given to A. in tail, the Remainder to the King's Villain in Fee, and before any claim by the King, A. suffers a common Recovery and dies without Issue, this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery, where a Parson made a Lease for years, and afterwards in a Quare Impedit brought against him and the Patron, they pleaded faintly, to the intent to make the Lessee lose his Term, now such a Lessee cannot falsify; in such case the Parson by another way might have defeated the Lease as by Resignation; but in our case the Grantor of this Rent by no way might defeat his Grant: And he said, a common recovery did not bind Dower, therefore nor this rent. And if Tenant in tail in possession grants such a rent, and after suffers a common recovery, the rent shall stand, why not also in the case of a remainder; for upon them both, as well the remainder, as the possession, the recovery operatur: And recoveries shall always bind the possession, and no farther, and shall not disprove the right, but the possession. And the recovery by itself doth not bind the possession, but in respect of the Voucher, without which no recovery shall bar, and that in respect of the recompense which the Law presumes, etc. which recompense cannot extend to this Rent-charge, and then there is no reason that he to whom it was granted should be prejudiced by this recovery; and always in case of recompense the Law is very precise. As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice, a litigious Benefice is not a recompense intended, nor shall determine the Annuity, nor a Benefice of 15 l. If two make an exchange for their Lives, and one of them dyeth, the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live. Ad quod Manwod Chief Baron subsidebat: And there is a great difference between a Lease for years and a Rent-charge; for at the Common Law upon such Recovery the Lessee for years was bound, contrary of a Rent-charge; for it was unreasonable that a thing not demanded by the recovery should be bound by it, especially because that the Land rendered in value shall not be charged with the rent. Walmesley Sergeant contrary: A remainder upon an Estate tail is debile fundamentum, and cannot uphold with assurance a Rent-charge against a common recovery; and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged, for an Estate-tail is in Law presumed to be perpetual, and therefore, what Lands are entailed by Fee, the words of the Fine are, Sibi & haeredibus de Corpore suo exeuntibus imperpetuum. And it is the common learning in our Books that every Estate of Inheritance, be it Fee-simple or Fee-tail, shall be intended to be continued till the contrary be showed. And the Authority which the Owner of a Remainder hath upon it is but conditional; scil If the Tenant in tail in possession doth not countermand it by a recovery, etc. And also the possession upon which the Avowry is made, is not the same possession which was charged, but is a Foreign possession gained by the recovery, and therefore, before the proper possession be recontinued, there can be no Distress nor Avowry, for the Land is not reduced in the privity of Estate which was charged; and if he in Reversion upon such Estate tail would grant his reversion rendering rend, and afterwards the Tenant in tail in possession suffers a common recovery, and dyeth without Issue; Now the reversion being destroyed, the rent is gone. And he put this Case: Tenant in tail grants a Rent-charge to begin after his death without Issue, and afterwards suffers a common recovery, and dies without Issue, it is a good rent, and shall bind the Recoveror etc. At another day in the Exchequer Chamber, the Case was argued again by Snagg Sergeant for the Defendant; and he was very long in proving that a remainder might be charged, as in this case: But the Court discharged him of that, and directed him to argue to this Point, If this recovery did discharge the rent, etc. wherefore he argued, That these common recoveries are false and feigned things, false in the Title, and covenous in the Proceed, and all in prejudice of a third person. And Vide 14 H. 8.3. such common recoveries are holden fraudulent, and therefore by fraud and covin being so odious in our Law, we ought not to give and allow unto them so much force as is due to unfeigned recoveries; for these common recoveries do not go in disaffirmance of the former possession, nor in any eviction of it, but for the most part in affirmance; and the Estate gained by this recovery is under the Estate of him against whom the recovery was had, and he is in by him; for common Recoveries are no other but common Assurances: And in our Case the imagined Recompense cannot come to him who hath by the recovery lost his rent, and therefore it is not reason that the recovery should bind as to this rent. Vide 12 E. 4. 19, 20. Tenant in tail discontinueth, and takes back an Estate to him in Fee, and afterwards a common recovery is had against him, it shall not bind the tail, for the presumed recompense shall go to the Estate which he hath lost, scil. the Estate in Fee, and not to the Estate tail, whereof at the time of the recovery he was seized: So in our Case, the Land which by Fiction of Law is to be yielded in value upon this Voucher, shall not extend to the benefit or recompense of the Grantee of the Rent-charge, but only to H. who hath lost his remainder, and his new remainder, which comes in lieu of the former, shall not be charged with this rent: And therefore the remainder, which by this recovery is drawn out of H. transit cum suo onere, & cum acciderit shall answer, and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 & 5. two joint-tenants are, The one grants a Rent-charge, and afterwards releases to his Companion, he shall hold the Land charged, notwithstanding that he be now fully in by the Feoffor. And if there be Lord and Tenant, and the Tenant grants a Rent-charge in Fee, and dyeth without Heir, so as the Land goes to the Lord in point of Escheat, yet the Lord shall hold the Land charged. And as to the Statute of Fraudulent Conveyances, 27 Eliz. cap. 4. the same cannot extend to this Grant; for here, this Grant is upon consideration of Nature made to his own Son for his advancement. Popham Attorney General to the contrary: And that neither the Grantee of this Rent, nor he who makes Conusans in his right shall falsify this recovery. And he put a difference where the party who leaseth or chargeth a remainder, is bound by the recovery voluntarily, and where involuntarily; for where the recovery is suffered voluntarily, there the Grantee or Lessee shall not be bound by that recovery, but they shall falsify: But where as our Case is, there the Party who chargeth or leaseth is bound involuntarily by such recovery, there all Interests are bound, and the charge is subject to the same mischief as the remainder itself, out of which it is issuing, Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfy a recovery had against the Tenant for life, but he is put to his Writ of Entry, ad terminum qui praeteriit, in which he shall falsify, and not by Entry, much less he in the remainder upon an Estate tail shall not falsify; and falsifier lies properly where the Party who grants or leaseth against his Grant or Lease, practiseth by such recovery to avoid or defeat his own Estate, and by consequence the Interest of his Grantee or Lessee: But in our Case there is not any such matter; for the Grantor H. was not party or privy to this recovery, nor Tenant, nor Vouchee, and therefore no Covin, and then no Voucher; and all the Cases in our Law of falsifying of recoveries are upon such matter. And he put the Case of 19 E. 2. Fitz. Title Assize 82. where the Conusee of a Statute Merchant, having sued Execution, one who had no right impleaded the Conusor, and by Covin recovered against him, and by Execution upon that recovery ousted the Conusee, it was holden he should have an Assize and falsify; for here he who party to the recovery: Donee in tail, the remainder over in Fee upon condition suffers a common recovery, the Condition is gone. And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute, the words of which are, Where divers Men have leased their Land to Farm, and afterwards, after such Leases made, the Lessors, their Heirs and Assigns have suffered Recoveries: Within which words our Case is not; for he against whom the recovery was had was not our Grantor, his Heir or Assign: So if there be Tenant in tail, the remainder over to another in Fee, he in the remainder makes a Lease for years, and afterwards Tenant in tail in possession suffers a common recovery, the Lessee shall not falsify; for that Lease was not made by him against whom the recovery was had. And it is clear, that by the Common Law, the Grantee of a Rent-charge cannot falsify against the Grantor, his Heirs or Assigns: But it was a doubt as it appeareth. 7 H. 7.11. If upon a faint pleader, the Lessee for years might be received, for the Statute of Gloucester extends but to default or re-disseisin; but now by the Statute of 21 H. 8. cap. 11. in three Cases, Default, Reddition, and Faint pleading, such Resceipt lies, which proves that in case of rent, as the Statute of 11 H. 8. hath ordained in case of a Lease for years, where the Lessor, his Heirs or Assigns, have suffered the recovery and not otherwise. And afterwards he argued very much upon the reputation and dignity of common Recoveries, that they are the strongest and most effectual Assurances in the Law, and therefore they ought to be countenanced rather by the judges, than in any part diminished or disabled, and we ought to consider of them Non ex rigore juris, rigida disquisitione, but according to the common use and practice, what is the ground and foundation of these Recoveries: And so judges have used heretofore to examine Matters, which peradventure, according to the strict Rules of the Common Law, drew them away. But they perceiving that a dangerous Consequence thereby would follow to an infinite number of the King's Subjects the Law having been otherwise practised before have framed their judgements, not according to the exact Rules of Law, but to avoid the Inconvenience aforesaid according to the common and received practice, etc. Nam communis Error facit jus; and to that purpose he cited a Case very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a judgement given in Wales, and the Error was in this, That the Writ was returnable co●am Justiciariis Domini Regis Comitatus, etc. where it should have been coram Justiciariis Magnae Sessionis Dominae Reginae, &c and such are the words of the Statute of 34 H. 8. cap 26. the which Sessions shall be called the King's great Sessions in Wales; and notwithstanding that the justices in strict consideration of the Law thought the same to be Error (for the said Statute had given to the said Court such name; yet because it was well known to the justices, That that was the common course in the said Court ever after the erection thereof; And also, if the said judgement should be reversed, for that cause many judgements should be also reversed, which should be a great disquietness and vexation to the whole Country there, they in their discretion thought it convenient to qualify the Law in that point, and so to avoid the said Inconvenience, affirmed the said judgement: So in the case at Bar, If this Rent-charge should stand against the said recovery, no inconvenience should be so firm, but it should be impeached, no Title so clear, but should be encumbered, & therefore for the common repulse of many the strict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience; it hath been holden for Law when Tenant in tail maketh a feoffment in fee, the Feoffee is impleaded, & voucheth the Tenant in tail, now forasmuch as he cometh in as Vouchee, it is now said that he cometh in of all his estates, I do not see any reason for that, but common allowance, practice, and experience, etc. It was adjourned, etc. Mich. 27 Eliz. In the King's Bench. CCLXIV. Baxter and Bartlet's Case. IN Assize of Freshforce by Baxter against Bartlet upon Null tort, Null Disseisin pleaded, it was found for the Plaintiff who had judgement; upon which the Tenant brought Error, for that the Assize have generally found the Disseisin, but have not enquired of the force: And after many motions the judgement was affirmed. CCLXU. Sir Henry Gilford's Case. IT was found upon a Special Verdict, That Henry Gilford Citizen and Freeman of London, 7 Feb. 6 E. 2. seized of a Capital Message, Devised the same by these words: Lego, & volo, Quod omnes Domus & reddit' quae habeo in Villa de London, ordinentur & assignentur per Executores meos ad sustentationem trium Capellanorum qui pro vita celebrabunt in Ecclesia Sancti Pauli, London: Et ad hoc faciend' Do eye plenam potestatem; and made his Executors William Staunton and others, and died, the Will was Proved and Enrolled according to the Custom. Afterwards the Executors by their Deed bearing date 7 E. 2 granted and assigned the said Capital Message, and his other Tenements in London to the Dean and Chapter of Paul's in London, and their Successors, Habend' & tenend' in forma sequenti. Haec est finalis Concordia, etc. That the Dean and Chapter shall have the said Lands for ever, to find yearly a competent Sustenance of 10 Marks to a Priest to celebrate Mass for the said Henry Gilford, and all Souls, and that the said Priest at all hours of Divine obsequies should give his attendance in the said Church and faithfully do his Office to say Mass and Prayers according to the Degrees and Customs of the said Church, and that the Dean and Chapter should find Bread and Wine, and Massing-cloaths, and Torchlight, and granted the residue of the profits of the Lands to celebrate an yearly Obits, and for the perpetual security of the said Chantry, the said Executors granted to the Mayor and Commonalty of London 20 s yearly rend for ever: Ita quod, the Mayor and Chamberlain for the time being presented a meet and convenient Chaplain to the said Chantry, to the said Dean and Chapter, within 15 days after the Avoidance, the which Chaplain the Dean and Chapter are bound to admit. And the form of the said Conveyance was such; We the Executors H. G. do grant and assign to the Dean and Chapter of Paul's all the Lands, Tenements, and Rents aforesaid, to have and to hold to them and their Successors for the sustentation of a Chaplain perpetual, and his Clerk for the said H. G. and all Souls, receiving from the said Dean and Chapter 10 Marks for the celebrating of the said Obits of the said H. G. And that the Grant and Assignment of the said 20 s. to the Commonalty in the relief of the said Chantry, is such, scil. To have and receive of one Shop in Cheap maintenance of the said Chantry aforesaid: And that the said Dean and Chapter oblige themselves and their Successors, and the Church, to pay the same to the said Priest and Clark and that it shall be lawful for the Mayor and Commonalty aforesaid to distrain for the said Rents: By virtue of which Will and Indenture the Dean and Chapter enter, and were thereof seized in their demesne, etc. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premises had yearly paid 10 Marks for the stipend of the said Priest. And further, the 27 July 16 H. 8. the Dean and Chapter demised the same to F. Cole for 40 years; and that afterwards 15 Maij 36 H. 8. the said Dean and Chapter leased the same to Nicholas Wilford for 50 years rendering 9 l. Rent with Clause of Distress if the Rent was behind by half a year, being demanded the Lease should be void, which N. W. 1 E. 6. devised the same to his Wife who devised the same to Tho. Wilford the Defendant: And further found, That as it appeared by an Exemplification out of the Exchequer, That it was a Chantry of H. G. and that Tho. was then a Chantry Priest there, and that the said Chantry, with all the Profits and Obits were 6 l. 13 s. 4 d. the tenth of which is a Mark, which was payable to the King 26 H. 8 And that by another Exemplification in 2 E. 6. it appeared that the Dean and Chapter of Paul's certified to the Commissioners of the said King, Cantaria H. G. A. & B. Executores Testamenti H. Gilford by force of the said Will 7 E 2. granted and assigned to the Dean and Chapter aforesaid, and their Successors, the said Lands and Tenements, to the intent that they should maintain for ever a Chaplain to pray for the Soul of the said H. G. and all Souls: And the Incumbent of the said Chantry is one G. and that the said Executors granted to the Mayor and Commonalty of London the Rent of 20 s. out of a Shop in Cheap, with the Patronage of the said Chantry, to the intent that they should maintain the Chantry accordingly; and recited all the said Lands and Rents assigned, and that the Rent of them was 14 l. 1 s. (the Salary of the Priest, 6 l. 13 s. 4 d. for Bread and Wine 3 s. 4 d. the Chamberlain of London 20 s. being deducted) and so there remaineth 4 l. 3 s 4 d. And that the said Chaplain received above his Wages yearly by reason of the said Obits, other Profits, as Procession pence, and Feeding days 33 s. 4 d. And found further, the Act of 1 E. 6. and further said, That the Church of St. Paul at the time of the said act was a Cathedral Church, and the Fee of the Bishop of London, and that the profits and rends devised and ordained to the said Dean and Chapter were in the said Certificate of 2 E. 6. and that the said Lands, at the time of the making of the said Act, and for five years before, were not in the actual possession of the said King H. 8 nor E. 6. and that by force of the Statute of 1 E. 6. the said Lands came to the possession of the said King as Chantry Land, and that the said King granted it to Tho. Butcher in Fee, who bargained and sold the same to Dobson, who thereof enfeoffed Thoragill, upon whom the said Nicholas Wilford entered, claiming his Lease: And further found, That 45 s. parcel of the said rend of 9 l. due at the Feast of St. John Baptist 11 Eliz. for the said Capital Message was arrear by half a year after the said Feast, and was lawfully demanded by the said Rich. Thoragill, and for not payment he reentered, and let the same to Tho. Buttell, etc. Bell. The Executors by this Devise have not a bare authority, but an interest; for if one seized of Lands in Fee deviseth. That his Executors grant a Rent-charge to one in Fee out of his said Lands, by that Devise the Executors have a Fee-simple in the Land, otherwise they could not make such a Grant: So here in the Case in question: and also by the same reason the Executors have a Fee-simple in the Land, for otherwise they could not grant a Rent in Fee, nor the Land to the Dean and Chapter in Fee, by which the Chaplain in perpetuity ought to be found: And although but one Chantry was erected where three were intended, but the Land devised was not sufficient for all three, so that now by the erecting of one Chantry only, the Executors performed the trust as near to the intent of the Devisor as it could be, and as the Land devised might extend unto; it is not material, if here be a Condition, or a Confidence in the words of the Grant to the Dean and Chapter ad inveniendum, etc. for if it be a Condition, and broken, no advantage shall be taken of it, for it is out of the Statute; and if it be a Confidence, than it is performed as near the intent of the Devisor as it might be, and the Condition being performed, although not exactly, yet so near as it may be, it is well enough performed: As a Feoffment upon Condition, that the Feoffee shall make a Gift in tail to Husband and Wife, and the Heirs of the Body of the Husband, the Husband dyeth, now the Gift cannot be modo & forma, and therefore if it be, it may be, scil. as near the intent of the parties as it may be, it is good; and therefore if the Land be given to the wife for life without impeachment of waste, the remainder over, it is sufficient in case of a Trust and Confidence. 1. It was moved, If here be any Chantry in the Case: And a Chantry is nothing else but a Sustentation for a Priest that chants in a place certain for the Souls of the dead: And Chauntries are in two sorts; the one incorporated, as by the King by his Letters Patents; the other not incorporated, as our case is: And truly the greatest number of Chauntries were not corporal, but were Chauntries but in reputation, and not Revera; but yet such Chauntries in reputation are within the Statute, which see by the words of it, accepted, taken or reputed, as Part or Member of any Chantry. It hath been Objected, That nothing passeth to the King by that Statute, but that which is parcel or belonging to the Chantry but this Land is not parcel nor belonging to any Chantry, for all the Land is in the Dean and Chapter. As to that, we ought to have regard unto the intent of the Devisor, which was to make the Land a Chantry: And so in the time of Hen. 8. it was returned in the Exchequer for the First-fruits of the Chantry of Hen. Gilford, and we ought not to respect the Conveyance itself, which was made by the Executors to the Dean and Chapter, but also the disposition of the Devisor, so as both aught to be put together, if they be not contrary one to the other; and if they be, than the last shall be taken. And when the intent of the Devisor may stand with the act of the Executors, to construe, That the Land shall make the Chantry according to the intent of the Devisor; for the Executors have given all the Land to the Dean and Chapter to find a Priest, and things belonging to a Chantry; and the Executors have given the said Land to the said intent, and the assignment of the special portion out of it, is but a showing how the profits of the Lands shall be bestowed: For I conceive, That the Land at the time of the disposition aforesaid, was not of any better value, than it was appointed to be employed as aforesaid; and if the Dean and Chapter by their industry have made and improved it to a greater value, they shall take advantage thereof till it be given to the King by the Statute, and it shall not be said properly a Rent, but rather a portion of the profits, etc. and therefore the Land shall be said the Chantry, and not the Sum; and here the intent of the Statute extends to the intent of the Founder: So that if the intent of the Founder was to give the Land to Superstitious Uses, the same is within the Statute: If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra, to the Sustentation of a Chantry Priest, and the Feoffees employ but 20 l. per Annum, whereas the Land is of the value of 100 l. per Annum, by this Statute the King shall have all; for the intent of the Founder was, That all should be employed: And so here; for upon the Matter, the Dean and Chapter are but as Feoffees; and see that this Statute of Chauntries makes a great difference between Obits and Lights, and Chauntries; for in the Case of Obits and Lights, the King shall not have but that which was employed. Whetstone's Case was, That Whetstone seized of the Manor of Cock, made a Feoffment thereof to certain Feoffees to find two Obits in such a Chapel, and with the residue of the profits to maintain the Chapel; and judgement was given for the Queen. Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament: for a Condition is an Hereditament, and when the King grants over the reversion to Butcher, the Condition also passeth by 32 H. 8. Bromley Solicitor, The Statute extends to Chauntries in existence only, and not to Chauntries in reputation. Chantry hath divers significations in Law; 1. For the Service which the Chantry Priest is to do, as cessavit de Cantaria. 2 Sometimes for the Advowson of the Chantry, scil. Quod permittat praesentare ad Cantariam. 3. Sometimes for the Body of the Chantry, scil. the Land of which it is endowed, and in that sense it is taken by the Statute. I will agree, if the same had been an ancient Chantry time out of mind etc. and the Incumbents thereof had taken the profits, and made Leases of it, that then it should be a Chantry within this Statute, for it might be corporated by prescription: But the Chantry here in question is not a Chantry by prescription, for the beginning of it is known, so it is a Chantry in reputation only and not in facto. And he said, That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest, but the rent only; so as the Land was not immediately employed for the finding of the Priest: And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood, which was never employed in kind to the use of the House, being seven Miles distant from the House, but was never in Lease, but was yearly sold by parcels, and the Woodward rendered an Account of the same to the Auditor: And the Opinion was, That a Lease for years made of it within a year before the Dissolution, was not within the said Statute, for it was not immediately employed for Hospitality. But see the same reported by the Lord Dyer to the contrary, 3 & 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately employed, etc. And see also the words of the Statute. scil. That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it, and the Priest had nothing in the Land but only in the Rent: It was adjourned to be further argued, etc. Temps Roign Eliz. CCLXVI Harveys Case. HArvey seized of a Manor, made a Feoffment thereof to divers persons to the use of himself for life, and after to the use of his Son and the Heirs Males of his Body, and if the said Son, or any of the Heirs males of his Body discontinue or alien (otherwise than for 21 years, or three lives) that than his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee: the Feoffor died, the Son made a Lease for 21 years and afterwards discontinued against the Proviso, if that lease should bind Nic. Harvey who came in by the latter use, etc. Dyer, It is hard to avoid the lease, for at the time of the making of it, the lessor had a good interest and authority to make the lease, and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance, and therefore shall not avoid the lease. Manwood, The second use doth determine the first use, and all Estates derived out of it. Mounson contr', For here this word (Otherwise than for 21 years, &c) so as such a lease is excepted: As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs, until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs, here if J. S. makes a a lease for years, and afterwards the moneys are paid to J. D. now J. D. shall hold the Land discharged of the lease, for there is no word (Otherwise) etc. for these words (Otherwise) qualify the second use. Dyer, The word (Otherwise) amounts to an Exception. Manwood doubted of it, and moved and demanded if the wife of the Cestuy que use should have Dower or not. Barham conceived that she should, etc. CCLXVII. Mich. 31 Eliz. In the Common Pleas. TEnant in Socage made a lease for four years, and died, his Heir within age of 8 years, the Mother being Guardian in Socage, leased by Indenture to the same lessee for 14 years; It was holden, that in this Case the first lease is surrendered, but otherwise it is of a lease made by Guardian in Nurture. CCLXVIII. Mich. 29 Eliz. In the Common Pleas. IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant, and the continuance was made until this Term, scil. Mich 29 Eliz. per Curiam advisare vult: And now the Plaintiff against his own Release prayed, and had judgement, A Release pleaded after Judgement and Verdict. without any knowledge to the Defendant, and Process of Execution issued; and now Walter, a Clerk of the Court, on the behalf of the Defendant shown the Release to the Court and also the whole special matter, and prayed the Release of the Court against this practice. Anderson presently granted a Supersedeas: But afterwards, before the Process issued forth, he and the other justices were of Opinion, That the Defendant could not plead the said Release, nor any further matter after Verdict, and demanded the question of Nelson chief Prothonatory who advertised the Court, That he could show a Precedent where an Arbitrement had been pleaded after a Verdict, and Issue joined upon it, and that was 100 years since: Quod mirum videbatur Curiae hic: Audita Querela pleaded. And afterwards the Court said to Walter, Sue your Audita Querela, and upon that you shall have a Supersedeas. Mich. 29 Eliz. In the Common Pleas. CCLXIX. Sir Richard Lewknors Case. Post 225. SIr Richard Lewknor seized of Willingford Park, leased the same for years, and died the Lessee assigned over his term, excepting the Woods and Vnderwoods' standing growing, and being in and upon the premises, the Assignee committed Waste, the term expired, the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners, being dead, as tenant by the Courtesy, brought an Action of Waste against the Assignee, and the opinion of the Court was, that the husband ought not to join in that Action, for he can recover nothing, for damages he cannot have, for the waste was not done to his disinheresin, and the Land he cannot have, because the term is expired. Snag Sergeant, I conceive that the exception in the Assignment is good; for an Exception of Trees by the Lessor himself in his Lease is good, and by reason thereof the Lessee shall not have Fire-bote, Hey-bote, etc. which otherwise he should have, and the property of the Trees is in the Lessor, and also the Soil, 14 H 8. 1 & 2. 28 H. 8. Dyer 19 & vide 46 E. 3. 22 a Lease for years was made with such Exception, and the Lessor brought an Action for the Trees cut. Q●are clausum tregit, and that proves that the Soil also is excepted and then the Action of Waste lies against the Lessee, who hath excepted to himself the Wood and the Soil, and not against his Assignee. Walmsley Sergeant to the contrary. And he said, where Land is demised the absolute property of the great Trees is in the Lessor, and the Lessee hath in such case, a qualified property: And he cited 2 H. 7. 14. the Lessor commands the Lessee to dig gravel in the Land demised, or licenseth him so to do, such commandment or licence is not good for the lessor hath nothing to do with the Gravel, nor hath any property in it, but such licence to cut Trees had been good; and Vide 10 H. 7.2 & 3. Waste is assigned in the breaking de uno muro lapideo; the Defendant pleaded the licence of the Plaintiff to break it, and upon that they were at Issue: And he said, If the lessor cutteth trees, upon which the lessee brings an Action of Trespass he shall not recover damages according to the value of the trees cut down; but for the Trespass to the Soil, and for the loss of the Shadow, and the Acorns, etc. and if the lessee cutteth down trees, the lessor cannot take them, because he hath other remedy. Where a reversion is granted to A. and B. and to the Heirs of B. Waste is done. A. and B bring an Action of Waste, B. shall recover all the damages, and A. nothing; which proves that all the Interest in the Land demised is in B and not in A. therefore here in the principal Case the Exception is void, for that which the Law allows to the former, is only House-bote, Hedge-bote, Plough-bote, Fire-bote: And he said that the lessee fells the trees and the vendee cuts them down, that waste lieth against the lessee, which proves that in that case the Soil doth not pass with the trees, by the exception of the trees, the Soil is also excepted as a servant to the trees, viz. to nourish the trees; and if he who excepts the trees cuts them down, or roots them up, the lessee shall have the Soil. And he said, that for the property that the lessor hath in the trees, if he cuts them down, the rent shall not be apportioned: And if the lessor granteth the trees to one, and his heirs, there shall be no Attornment, which had been requisite if the Soil had passed. At another day it was argued by Shuttleworth Sergeant, and exception taken, because it is too general, scil. Quod fecit vastum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipsae sunt praefato, Ford dimisit, etc. And the Plaintiffs counted the Reversion was entailed by Act of Parliament to the said Sir R. Lewknor; and so the Writ ought to be special, scil. Cujus Haeredes de corpore ipsae sunt; for although there be not any such form in the Register, yet that is to no purpose; for in novo casu novum est remedium apponendum. And he compared it to the Case in F. N. B. 57 where Land is given to husband and wife, and the heirs of the body of the wife, the wife dyeth, the husband commits waste, the Writ shall be, Idem A. de domibus in B. quas tenet ad vitam suam ex dimissione quam inde fecit praefato A. & M. quondam uxori ejus, & haeredibus de corpore ipsius M. matris dicti R. cujus haeres ipse est exeuntibus. And Vide 26 H. 8. 6. Cestuy que use leaseth for years, the lessee commits waste, the Feoffees bring an Action of waste, the Writ containeth the special matter, although there was not any such Writ in the Register. Fenner and Walmsley contrary; for there is not any such form in the Register, Cujus haeredes de corpore, etc. and we are not to devise a new form in this case, but it is sufficient to show the special matter in the Count; also the words in the Writ are true, for the Plaintiffs are Heirs to Sir R. Lewknor. and the Count is well, pursuant and agreeing to the Writ; for they are Heirs, although they are but Heirs special of his Body. And the Court awarded the Writ good, and said that the case is not like the case in Fitz. N. B. 57 nor to 26 H 8. before cited; for in the first case the Plaintiffs cannot show of whose Demise the Tenant holdeth, unless that he also show the special Conveyance, scil. That the Land was given to the Husband and Wife, and to the Heirs of the Body of the Wife, for always the Demise to the Tenant ought to be showed certain which cannot be in both these cases if not by disclosing also the Title to the Inheritance, and the Estate in it. Another Exception was taken to the Count, That where the two Defendants were Tenants in Common of the said Lands demised, the Writ is tenuerunt, which is intended a joynt-tenure. But this Exception was not allowed: And Vide 44 E. 3. in Waste the Plaintiff counted upon divers Leases, and Fitz. N. B. 60. F. and the Writ shall suppose one Tenet, and not divers Tenets. Another Exception was taken to the Writ because the two Coparceners, and the Heir of the third joined in the Writ, whereas the Husband of the third Sister being Tenant by the Courtesy, was alive. Vide 22 H. 6 21, 22. But that Exception for the Tenant by the Courtesy joins to no purpose; for he is not to have Damages, because the Waste was not to his disinheresin, and the Land he shall not recover against the Defendant for the Term is not determined; and such was the Opinion of the Court. As to the matter in ●aw, Shuttleworth said, That the Action of Waste aught to be brought against the Lessee himself, and not against the Assignee for when he grants over his Term, excepting the Trees, it is a good Exception; for when the Land upon which the Trees grow is leased to another, the Trees pass by the Lease as well as the Land, and the property of them is in the Lessee during the Term; by which when he grants his Land, he may well except them, as the first Lessor might have done; and if the Lessee for years cutteth down the Trees, the Lessor cannot take them for that he hath other sufficient remedy, scil an Action of Waste. Fenner and Walmsley contrary: And they conceived that the Lessee had but a special Property in the Trees, scil. for Fire-bote, Plough boat, House-bote, etc. But if he demiseth the Land, or granteth his Interest in it, he cannot except the Trees, nor his special Property in them no more than he who hath Common appendent may grant the Land, excepting the Common: And in such case, the general Property in the Trees remains in the Lessor, as parcel of his Inheritance. And this appeareth by many cases: 27 H. 8. 13. Lessee for life and he in the remainder join in a lease for life, the Lessee commits Waste, the Tenant for life, and he in the remainder, join in an Action of Waste, the Tenant for life shall recover the place wasted, and he in the reversion all the damages. Vide 2 H. 7. & 10 H. 7. cited before, That the Lessor may licence the Lessee to cut the Trees, which proves that the Property is in him. And Vide 40 Ass. 22. the Lessor shall have the Windfalls. And as to that which hath been said, That by the Exception of the Trees, the Soil itself is also excepted that is true, as to the Trees for nourishment, and not otherwise; for if the Lessor cutteth down the Trees, or roots them up he shall not after meddle with the Land where &c. but the Soil shall be entirely to the Lessee: The Lessor during the Term may grant the Trees, so cannot the Lessee; therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee, and the Trees proprie loquendo, are not parcel of the thing demised. If this Exception of the Trees or Woods should hold place, Inconvenience would follow; for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood, he should not lose all the Wood, but that place only: But if in the said Wood there are divers Plaits of Land in divers places of the Wood, if the Termor commits Waste in that Wood he shall lose all the said Plaits, although he hath not done waste in them, for they are parcel of the Wood Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House, the whole House shall be recovered. Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law, and the Exception be good, how shall the place wasted be recovered here, and against whom? It seemed to the Lord Anderson, That the Exception was void, and that the Action was brought against the Assignee; and he said it was a knavish and foolish Demise, and if it should be effectual in Law, some Mischiefs would follow which he would not remember. Windham was of the same Opinion, and that the Lessee could not assign his Estate with such Exception; for he hath but a special Interest in the Trees, scil. for Fire-bote, Plough-bote, etc. which should go with the Land. Periam conceived, That as to such special Property, that none could have it but he who hath the Land, and therefore the Exception is void; but as to the Fruit-trees, such an Exception might be good; and although that the Trees are not expressly demised, yet quodam modo, and after a sort, they may be said demised, as annexed to the Land, and if waste be brought against him who made the Exception, scil. the Lessee, he cannot say they were not let to him; and therefore he doubted of the Exception: And Rhodes doubted also of the Exception; and Anderson said, that he was clear of opinion that the Lessor should have the Windfalls, and afterwards the Case was adjourned to be further argued, etc. Temps Roign Eliz. CCLXX. Audley's Case. Uses. THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset, and afterwards by Indenture reciting the said Feoffment and the date of it, and also that it was to the intent that his Feoffees should perform his Will, as followeth in effect, viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands ●00 l which he had lent to the said Lord Audley, and also to stand seized to pay all his Debts upon Bills signed with his hand; and after ●he Debts paid, that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife, and to the heirs of their Bodies, etc. with divers Remainders over. The said Lord Audley had Issue by the said Joan▪ and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife; and by the opinion of divers justices and Sages of the Law upon this matter no use was changed for it is not a last Will, but an Intent; and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs, because no consideration was wherefore they should be seized to their own uses; yet the same could not make a new use to the said Lord and his wife in tail, without conveying an Estate, etc. for the wife is a stranger to the Land, and the same cannot be a Will or Testament: for the Estate mentioned in the said writing ought to be made to the said Lord and his wife, who could not take by his own Will; and this matter was depending in the Chancery. And the advise of the justices being there required, they delivered their Opinions, That by that writing no use was changed, nor any use vested in the said Lord and his wife, and a Decree was made accordingly, until proof was made that such an Estate was made, etc. Trin. 29 Eliz. In the Common Pleas. CCLXXI Walgrave and Somersets Case. IN Trespass by Walgrave against Somerset, the Case was, That tenant at will cut down Trees, and the Lessor brought Trespass vi & armis: And the Court was clear of opinion, that the Action was well maintainable modo & forma, and judgement was given accordingly. Vide Litt. 25. that Trespass lieth, but he doth not speak of vi & armis. See for that 12 E. 4. 8. by Fairfax and Genny, 22 E. 4. 5. CCLXXII. Mich. 30 Eliz. In the Common Pleas. IN Debt upon an Obligation, the Defendant said that the Obligation was endorsed with a Condition for the performance of Covenants contained in an Indenture, etc. The Plaintiff assigned the Breach in this, that the Defendant himself by the same Indenture, that the said House was discharged of all former Estates and Encumbrances, etc. And further showed, that the Defendant had made a former Lease of the said House to one A. B. in the County of Warwick; to which the Defendant said, that tempore dimissionis he was within age; upon which they were at Issue, and it was tried in the County of Warwick, where it ought to be tried where the Writ was brought: But the whole Court held the contrary, Trial. that the trial was well enough; as if in an Assize the Tenant pleadeth a Release of the Plaintiff in a foreign County; to which the Plaintiff pleads, that at the time of the Release he was within age, upon which they are at Issue; the Issue shall be tried in the County where the Release is pleaded to be made, and not where the Writ is brought. CCLXXIII. Temps Roign Eliz. ACtion upon the Case was brought for stopping a way: The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life, and that the said Duke, and all those whose Estate, etc. had used time out of mind, etc. to have a way over the Land of the Defendant to the Park of D. to carry and re-carry necessary wood for the said House, from the said Park to the said House: And further declared, That the Defendant Obstupavit viam: It was moved, that upon the matter no Action upon the Case did lie, but an Assize, because that the Freehold of the House is in the Plaintiff, and also the Freehold of the Land over which, etc. is in the Defendant: But if the Plaintiff had had but an Estate for years, than an Action upon the Case would lie and not an Assize: And it is not material if the Plaintiff have but an Estate for years in the Park, Quoth fuit concestum per totam Curiam. It was holden also that this word Obstupavit was good enough without any more, scil. without showing any special matter of disturbance, Nuisance, Obstupavit. as the erection of some Gate, Hedge, Ditch, etc. for Obstupavit implieth a Nuisance continued, and not a personal disturbance, as Forestaller, or saying upon the Land, etc. that he shall not go over, or use that way: But as to a local and real Nuisance, the word Obstupavit amounts to Obstruxit: And although in the Declaration is set down the day and year of the stopping, yet it shall not be intended that it continued but the same day; for the words of the Declaration are further, That he was disturbed in the way, and yet is; and so the continuance of the disturbance is alleged; and of that Opinion was the whole Court. Action upon the C●se. Prescription. Leonard Prothonotary, He hath declared of a Prescription habere viam tam pedestrem, quam equestrem pro omnibus & omni●odis cariagiis; and by that Prescription he cannot have a Cart-way, for every Prescription is stricti juris. Dyer, That is well observed; and I conceive that the Law is so; and therefore it is good to prescribe habere viam pro omnibus cariagus, without speaking of Horse or Footway. 16 Eliz. In the Common Pleas. CCLXXIV. The Archbishop of Yorks Case. Toll THe King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon: And afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through all the Realm; and afterwards the Archbishop exchanged his Manor of Rippon with the King for another Manor: It was moved, If now the Citizens of York should be discharged of Toll within the Manor of Rippon Dyer said that they are not discharged of Toll, for the Grant to the Archbishop was eigne to the Grant made to the Citizens, and by the exchange the King had new Right: And when the King grants over the Manor of Rippon, the Grantee shall have the Toll, notwithstanding the Grant made to the Citizens, for the Grant made to them was void as to discharge them of Toll at Rippon, and the Grant of the King to the Citizens shall not take effect after the exchange; for the Grant was void ab initio. But if the Grant of the King to the Archbishop had been made for life, than the Grant of the King made to the Citizens should take effect after the Estate for life determined: And the better Opinion was, That Toll should be paid. Hil. 16 Eliz. In the Common Pleas. CCLXXV. William waller's Case. WIlliam Waller seized in Fee 26 H. 8. made a Feoffment to the use of his last Will, and by that devised his Manor of russel's to Rich. Waller his Son in Tail, and died. Rich. Waller entered, and was seized by force of the Statute 27 H. 8. and afterwards 2 E. 6. by his Deed in consideration of a Marriage to be had between him and one Eliz. A. enfeoffed Worsley and others to the use of himself and the said Eliz. for their lives, and after the use of the said Rich. Waller, and his Heirs, and died; Eliz. took to Wife Clavell, they both by Fine granted the said Manor to Tho. Lamb: Habend' eidem Thomae & haeredibus suis tota vita ipsius Eliz. Tho. Lamb entered, and died seized, Tho. his Son and Heir entered, against whom Thomas Waller, Son and Heir of Rich. brought a Formedon, the said Eliz. being alive, the Tenant said, he is within age, and prayed that the paroll might demur; but Non allocatur, for he was but as an Occupant during the life of Eliz. CCLXXVI. Residuum of Sir Francis Englefields Case. THe Case of Sir Francis Englefield was argued by Popham; and he said, That this Condition was not such a private Condition, or so running in privity, but that it might be transferred by 33 H. 8. or 29 Eliz. to the Queen; for although that the consideration which moved and induced Sir Francis to create the Condition be private and particular, yet that notwithstanding the Condition itself is general; for the private cause of the Condition doth not make the Condition private, but as in other Cases, and he put the Cases before of Ransom: But if the Condition had been conceived in these Terms, scil. If my Nephew shall be given to intolerable Vices, then if I tender, etc. there it had been otherwise. Vide the Statute of 33 H. 8. cap. 20. by which it is enacted, That if any Subject is attainted of High Treason by the course of the Common Law, the King by such Attainder shall have such benefit and advantage as well of Uses, Rights, Entries, Conditions, etc. as of Possessions, Reversions, etc. as if it had been done and declared by Authority of Parliament, that is as much as to say, as if the Condition in its proper terms had been given to the King by Act of Parliament, etc. and vouched Dacres case 17 Eliz. cited by him before, where, upon a Grant of all his Goods and Chattels revokable upon tender of 5 s. it was resolved, That such a Condition was given to the King, and by special Grace of the Queen Sir Tho. Gorge had the benefit of it: And here, although the cause of the Proviso be private and special, yet the Condition is not tied in the cause, and the Statute gives to the Queen all Conditions which are usual, and for the benefit of the Queen; and at the time of the making of this Statute such Conditions were usual, & tunc temporis, the Condition was penned, not by way of reentry, but that the use should be void; and that such Conditions were usual at the time of the making of the Statute of 29 Eliz. appeareth by the Statute made two years before, scil. 27 Eliz. for the repressing of fraudulent Conveyances: By which it is provided by an express branch of it against such Conditions containing power of Revocation; and Laws are for the most part made to give order for things which may happen: And I conceive, That this tender for the Queen is well enough for the time, notwithstanding all the terms are past, yet the two years are not incurred: I covenant within a year to suffer a common Recovery, all the terms are passed without any Recovery suffered, yet no Action lieth upon that covenant before the year be fully expired, although that the terms be past, it being impossible to suffer a Recovery within the time prefixed: A. covenants with B. in consideration of Marriage to suffer a Recovery before the Feast of St. Michael, and if A. before the said Feast doth not suffer such Recovery, that then he shall be seized to the use of C. Trinity Term passeth without any Recovery had, yet no use shall rise before the said Feast: And I conceive that there needs not here any Office; but if the Condition be to be performed on the part of the Patentee, than the breaking of the Condition ought to be found by Office; contrary where the condition is to be performed on the part of the King: For acts which Subjects do, are matters in pa●s, therefore an Office is requisite to make them of Record; but where the Queen doth any thing, there needs not any Office to make it of Record: The Queen herself might tender the King, but by commission under the Great Seal she hath authorized another to do it, and she hath taken sufficient notice that there was such a condition: And when the Certificate is made and returned, the same is sufficient to inform her that the condition is performed, for the Certificate being returned, is of record as well as the Commission, as the return of the Writ: And he cited the Case before cited, Bartues' Case, 2 Eliz. Dyer. The King leased the Manor of D. for years to A. upon condition, that if the King at any time during the term shall make a Lease to the said A. of the Manor of S. for life, than the Lease for years shall cease and be void; the King makes the Lease for life, the lease for years is void without any Office, for the Lease for life is upon record: The case of Auditor, 3 Eliz. Dyer 197. where the Forfeiture of the Office appears of record: And Baron Plags Case 15 H. 8. ibidem, the determination of the Office of Remembrancer by acceptance of the Baron shall bind in the Exchequer, void without a Scire Facias or Office. Vide etiam Dyer (5 Ma. 159.) he being justice of the Common Pleas, was made justice of the King's Bench his first Office was gone and determined: Also he said, That the Condition (being performed ut supra) sua vi & virtute, without any Office shall make void the Conveyance to which it was annexed. And if Sir Francis, being attainted, had tendered the King, ipso facto as it worked to him, so ipso facto it should work to the Queen. When the Act of 29 Eliz. had made the Assurance void, the Land is in the Queen presently, by means of Sir Francis, to whom the Land returned, and from him in the same instant vested in the Queen. Cook to the contrary: The Condition is not given to the Queen: Words make the Plea; therefore the words of the Condition are to be considered, in which it is to be seen if this Condition be annexed to the privity of Nature, or be general. The Form of the Condition is, Sir Francis being a man of great Living, and having a great Manor of his own Name, in consideration of the preservation of his Name and Blood, etc. covenanted to stand seized, etc. And further, pro eo quod, his said Nephew was of tender age, and his proof could not now appear, and it might be that in time to come he might be given to intolerable Vices; therefore the said Sir Francis did not think it convenient to settle the said Inheritance in his said Nephew absolutely without a bridle to restrain him, therefore it was provided, That if the Uncle delivered a King of Gold to his Nephew, to the intent to make void, etc. And this is a special Condition, private and peculiar to the person of Sir Francis incident to him, and to no other, and incommunicable; and therefore it is not given to the Queen: But such Conditions which the Heir▪ Lord by Escheat, or Executors may have, the Queen shall have by the Statute 10 H. 7. 18. Lessee for years of a House covenants to repair it within six years, within which term he dyeth, no reparation being made, covenant lieth against the Executors; contrary if the covenant had been that he should repair during his life. It hath been said, That the things which are matters of privity are the considerations which caused Sir Francis to make this Proviso, but they are not any part of the condition or Proviso: Truly the consideration raises the use, and precedes the Proviso which is tied to the consideration with an Ideo, and all is but one Sentence knit together with the Ideo. And although consideration of Blood be not parcel of the Proviso, yet that which follows is, scil. for that his Nephew, etc. And in this Conveyance Sir Francis praestitit utrumque munus Nutricis, ubera, & verbera. And Acts of Parliament do not give away things knit to Nature, by the general words All things. Vide the Lord Brays case, 2 Eliz. Dyer 90. The Father having the Wardship of his Son and Heir apparent, if he Outlawed shall not forfeit the same, for it is inseparable to him, notwithstanding that the Land be holden of the Queen, and so Nature cannot be transferred, therefore neither this Proviso. And so is the Tenure of Frankalmoigne 35 H. 6. 58. and it should be a great rigour to take the bridle out of the hands of the Natural Uncle, into the hands of justice, which is Manus regia: And he cited the Case of the Lord Norris, where it was ruled, That where the Act of Attainder of Norris gave to the King all Rights, Titles, etc. yet a Writ of Error was not given thereby. (Manwood, Actions are not expressly given by the said Act of Attainder.) As to the second point, I conceive that the Coveyance is become void when the terms within the two years are passed, and shall not expect until the two years be expired, for the enrolment ought to be within the term; so that if all the terms of the two years be past it is now impossible for to enrol the Deed within the time limited by the Statute, and then, by 29 H. 8 the Conveyance is void, and then is the Queen seized in Fee at the time of the making of the Lease by the Attainder of Sir Francis: As to the Certificate, without Office it is not sufficient to entitle the Queen to the Land; and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee, and on the part of the King: I confess that a Certificate to inform the Queen, or her Council, of the quantity, quality, value, etc. of the Land, is good without Office, but not to entitle the Queen de novo to the Inheritance of another; I grant that the Commission is of Record, but the tender of the King is matter in pais, and not of Record. Three things ought to be observed in every Certificate, to make it a good and lawful Certificate according to the course of the common Law, unless it be in cases of necessity, as in case of Ouster le mere, etc. 1. It ought not to be in the absence of the party. 2. It ought to be pendente placito convocatis in ea parte convocandis. 3. It ought to be directed to a known Officer; but a thing certified by a private person, being no Officer, cannot be good. Also a Certificate according to the course of the common Law, being good, is not traversable. At another day, the Case was argued by Egerton Solicitor for the Queen: The Condition is given to the Queen by 33 H. 8. and also by 29 Eliz. and this Condition in itself is a general and ordinary Condition, and rests not in privity, and such an Act as may be made by any stranger as well as by Sir Francis himself, scil. the tender of the King. The reasons which moved Sir Francis to knit this Condition to the Conveyance were natural, but the Proviso and the performance of it not tried to Nature, and therefore all the cases of privity are here out of Seisin. As to the Lord Brays Case, the same was not any Wardship, but only an Order for the government or his Son and Heir; for the Wardship of the Father in the Son is not a Chattel in him. As to the Case of the Lord Norris, the Writ of Error could not accrue to the Queen, for by the Act of Attainder no Actions were given to the King: And here is not any such privity as hath been pretended, for by the words of the Proviso the Ring might be tendered to his Executors or Administrators, therefore the Condition might be tendered when he is dead, therefore without privity. Title for alienation in Mortmain of Lands purchased by a Villain of the King, or for a Condition broken, are not in the King before Office: But here the Condition is to be performed on the part of the Queen, which her Royal Majesty cannot perform, and therefore Commissioners are appointed to do it, which they have done, and upon the Commission returned, have informed the Queen of all the performance of it, and all is now upon Record. And there is a great difference between Certificates, as in our case, and Certificates which have been cited on the other side, which are used to make Trials upon Issues joined betwixt party and party, and in such Certificates I confess the Law, as Cook hath argued: The Sheriff is not known to be such an Officer, but by his Commission under the Great Seal, he upon a Writ of the King to him directed, Summons, Disseisins, Attaches, etc. these are matters in fait; but when the Sheriff hath returned his Service, than it is become matter of Record: So in our case, the return of the tender, etc. where the Queen is to be informed of the Lands of the Subject which she is to have, there ought to be an Office; but here the Queen is to do an act, and that she hath done under the Great Seal by Commission, by the return of which she is in the whole matter, therefore there needs not an Office to inform her of that which she herself hath done by another Authorized by her to do it: And he said that the Leases made by the Queen, being Tenant pur altar vie, were not void ab initio, but from the time of the two years, but now the Estate of the Queen for life is determined, therefore also the Leases derived out of it. Exception hath been taken to the Information, scil. Praedictus Franc' per Indenturam suam factam inter, etc. without saying sigillo suo sigillat', that is good enough; for facta esse non potuit, nisi etiam sit sigillat', therefore facta includes sigillat': And afterwards Trin. 33. Eliz. this Case was argued by the Barons. Clark puisne Baron said, That judgement ought to be given for the Queen. And first he said, I conceive that here upon this Indenture is no use created in Sir Francis, for he shall pay for a Licence of Alienation if the Lands be holden in chief; and they themselves in pleading the uses, say Virtute cujus the said Sir Francis was seized in his Demesne as of Freehold for his life the remainder thereof, etc. Although this Condition be tied to Nature, and rests in privity, as hath been objected and so inseparable, yet by Act of Parliament it may be transferred. Impropriations, Frankalmoign, Frankmarriage, Guardianship in Socage cannot be given away regularly, but by Act of Parliament they may; which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbeys and Priories dissolved, nam Parliamentum omnia potest: It may alter the nature of Lands, make Gavelkind discendable according to the course of the common Law, and so of Borough-English: Attaint, Error, Deceit, etc. are Actions which lie in privity, yet by Act of Parliament they may be transferred: And in the case of the Lord Norris, If the Act of Attainder had given to the Queen all Actions, she might have had a Writ of Error: And we see by experience, That the King and his Assigns have advantage of conditions annexed by Abbots to their Leases, and that by 31 H. 8. and our condition is not so proper or peculiar to Sir Francis, for by the words of it any other person might have tendered the King for Sir Francis, so as it is not tied to his person. If the Provi●o had been. Because it may be my Son will marry without my consent Or it may be I shall have more Children Provided therefore, that if I tender, etc. that pretence of Marriage without assent, or plurality of children, is not any parcel of the condition. And he vouched the case between Clovell and Moulton; A. sold Lands to B. and it was covenanted betwixt them, That A. upon request made unto him, or his Heirs, should make further assurance to B. of the said Land; A. is attainted, now the covenant is suspended, for A. hath not any Heir, afterwards the Heir of A. is restored by Parliament, with a saving to others of all their rights, etc. B is not aided by that saving so as he can make request to the Heir of A. etc. And he said, That the tender of the King is well enough for time; for although all the Terms were passed, yet the two years were not expired: A. covenants with B. That if A. doth not levy a Fine to B. of the Manor of C. within two years, that then A. shall be seized of the Manor of D. to the use of the said B. Now although that all the Terms be passed so that no Fine can be levied according to the Covenant, yet no use shall rise out of the said Manor of D. before that the two years are fully expired: And here needs not any Office by which the tender aught to be found, the Commission authorising the tender, and the return of the Certificate by the Commissioners is sufficient; for the whole matter in fait is become matter of Record; as the Execution of a Writ once by the Sheriff being returned, and the party grieved by the Certificate shall have a traverse to it; but where a Certificate is in lieu of a Trial, as of Bastardy by the Bishop; in Case of Seddition or Diminution certified in a Writ of Error, there no traverse lieth to it; but upon Certificate of not payment of Tithes, the party grieved may have a Traverse: In our Case here If the Subject continues possession after such Certificate made, he is an Intruder. The Queen when she made the Lease was Tenant for the life of another, and afterwards by the tender of the King according to the Provilo all the Conveyance, and the Estates limited by it, are dissolved, and the Fee-simple vested in Sir Francis, Quasi ab initio, and immediately also in the Queen by the Attainder, whose Estate is paramount the Conveyance made by Sir Francis, which is now, as if it had never been made, and so are all the Estates created by it, and then the Lease made ut supra is void. As to the Exception which hath been taken to the Information, (Indentura sua) without saying, Sigillo suo sigillat, it is well enough, for so much is said in effect; for Non est Indentura sua, if it be not sealed, and all necessary circumstances are not to be pleaded, as the delivery of the Deed, or livery upon a Feoffment, for a Feoffment includes livery, and a Deed delivery. Gent, Baron to the same intent: Here the words of the Proviso are, Tender to Sir Francis, his Executors or Assigns, no words of Heirs, and on the part of Sir Francis, If he, or any for him: But in Dacres case, If the said John Dacres himself, and yet the Queen took advantage of such a Tender. Manwood chief Baron to the same intent. As to the Exception to the Information, scil. Per Indenturam suam, without saying Sigillo suo sigillat'; for if the Indenture was not Sealed, than it was not any Deed, and then no Covenant, and then no Use, and then no Condition, etc. But I conceive, That the Information is good enough, for Covenants by Indenture include Sealing and Delivery, and other things which are of the Essence of an Indenture, which need not to be pleaded, because in Law presumed: But for a clear Answer to it, Sealing and Delivery are matters in pais, therefore confessed by the Demurrer: And here the Defendants have pleaded Quoth been & verum est, That the said Sir Francis by the said Indenture, etc. covenanted, etc. and if any imperfection be in the pleading, it is now saved by the Demurrer. An Exception hath been taken to the bar, because the Defendants have pleaded three several Leases of several parcels of the Lands in question, and concluded, Virtute quarum quidem concessionum, they were possessed and entered, etc. which cannot be good, because several Interests and Estates, but aught to have pleaded severally, scil. One Lease of such Land in which the Intrusion is supposed, and so concluded Virtute cujus. they were possessed, & sic de caeteris. and so to each Interest one several Conclusion: A. hath an Annual Rent of 10 l. out of Bl. Acre, and another Rent of 20 l. out of, etc. and another Rent of 30 l out of the same Acre and takes a Distress in Bl. Acre aforesaid, and avows for all the Rents together, the Avowry is not good, for how can the Avowant have a return? when Non constat Curiae, how many of the he took for one Rent, and how many for another: As to the matter in Law, first, If this Condition doth extend to the Estate of Sir Francis, Nihil habet quaestionis; for by the performance of the Condition Sir Francis is in statu quo prius, and so all the Estates limited by the said Indenture quite plucked up by the root. As to the Condition, I conceive that it is not knit in privity to Sir Francis, and doth not depend upon his liking or disliking: The Act itself, in which is the performance of the Condition, doth consist in the tender of the Ring, the words preceding purporting the doubt of the proof of his Son, and the bridle, etc. are his Motives by which he was induced to make the Condition, not to perform the Condition. nor any part or parcel of the Condition, or word of Condition. The words of the Condition are, If he himself, or any other by his appointment shall tender, etc. What privity is here? who knows who shall be his Deputy to make the tender? It may be any person in the World, therefore no privity in the person who is to tender; and as to the person to whom the tender is to be made, there is no privity there, for it may be made to the Nephew, his Executors or Administrators. Also no precise place is set down in the Condition where the tender shall be, it may be in Ireland, Scotland, or in any other Country, therefore the Condition in all points general, and so free as an ordinary Condition: But if the Condition was to be performed by Sir Francis in his proper person, or by subscribing his name with his hand, or such like act, than it had been otherwise. The case of Littleton 76. A Feoffment in Fee is made upon Condition, that if the Feoffee pay to the Feoffor such a day 10 l. then the Feoffee shall have the Land to him and his Heirs for ever, and before the day the Feoffee makes a Feoffment over upon a Condition, the second Feoffee tenders the Money, it is a good tender, and yet the words of the Condition do not extend so far, but only to the first Feoffee, who was privy to the Condition; so where the payment is to be made on the part of the Feoffor, and he dies before the day, tender by the Heir is good; and here, this is a general Condition, and therefore may be performed generally without being restrained to any person for the performance of it: And here, we are in an Act of Parliament, Quod omnia potest, 32 H. 8. gave to Assigns of the Reversion which always before were fixed in privity. Monks dead persons in Law, by Act of Parliament made capable of Purchase and Inheritance; Gavelkind and Borough-English made discendable at the common Law, which the King could not do: An Alien born is made Denizen by the King, by which he may Purchase, but yet not inherit: But an Act of Parliament may make him heritable; Corruption of Blood the King cannot take off, but it ought to be purged by Act of Parliament. As to the Statute of 29 Eliz. it hath made the Conveyance void, as hath been objected; for the Terms within the two years limited by the Statute are past, and then the Condition is gone, as against Entail upon Condition, if the Entail be spent the Condition is gone: But I conceive, that until the two years be fully expired, the Estates limited by the Conveyance continue, and the Condition also. The words of the said Statute are, (Shall within two years after the last day of this Session, etc. openly show and bring forth into the Queen's Court of Exchequer, his Conveyance, and there in the Term time in open Court, shall offer and exhibit the same;) These words show that the parties ought to show the Conveyance within two years, but doth not speak of any term and in the other Clause it speaks of term, but not of two years; so the time in which it ought to be showed is two years, but the time of the enrolment might be in the term after the two years well enough; for there are two two times in the Statute, the one to show the Conveyance, the other for the enrolment of it, and two things are to be done, Showing and enrolment, and two times answerable to them, two years, and Termtime. And he took it for a general Rule, that time once expressed, shall not be afterwards by implication abridged. And if by your construction you make the time to end with the Term, you abridge the time by a Month at least, which was expressed before, two years. And for the reasonable construction of times, Vide 28 H. 8. Dyer 44 Bould's Case. If it fortune Joan Moll' to decease before the Feast of etc. without Issue Male of her Body then living, etc. this word (then) shall be referred to the Feast, and not to the time of the death of the party; for (as the reason of the Case is) where the intent of the parties is to have continuance in the thing, the thing which they would have continued to the most extreme time as may be: And if Lands be given to one and the Heirs Males of his Body begotten, and if he die without Heirs of his Body, than it shall remain over; by this Implication (if he dies without Heirs of his Body) the Donee shall not have general Tail, but it shall be intended such Heirs to whom it was limited before. And in our Case here, there are some weeks between the ends of the Terms, and the end of the two years, and those weeks shall not be utterly void, for in these weeks after the end of the Terms those of the Chancery shall take Conusance of Deeds: And here in our Case, the party was only to show the Deed, which might have been done at any time after the Terms, so as it be within the two years; if one be bound with Condition, That if within two years he pay the Queen's Silver upon a Fine to be levied, and then and there in Term time engross the same, if he pay the Queen's Silver within the two years, he hath saved his Bond, although that the Fine be not engrossed until a Term after the two years: So if one be bound to acknowledge a Deed in the Chancery within two years, and there in the Termtime to Enrol the same, if he do acknowledge it within two years, it is sufficient, and he may enrol it afterwards: So in our Case, the Estates continuing, and the Condition also till the two years are fully expired, therefore the Condition is well performed; for the Estate continues defeazable by the Condition, because within the two years, and to abridge time is a violent thing. And now Sir Francis is alive, so as the power of the tender of the power of the King continueth: And I conceive, That the Certificate is sufficient without any Office, and the party grieved may have traverse to it: And I hold clearly, that as this Case is Office cannot be found. Office properly is to be found of things in pa●s which happen before the Office, as the Nonage of an Heir, or of an Alien born or of a Villain; here to entitle the King an Office is necessary to find things which have happened before; and without doubt this Certificate is traversable, as the Certificate of the Bishop of Recusancy; and also the Certificate of the Commissioners of Sewers, and here those who are to certify, are to certify a thing done by themselves and therefore there needs not any Office, because they do it virtute Commissionis. If a Commission be awarded to take a Surrender of the Bishopric of N. or of a Pensioner etc. there needs not any Office to find it; and in the time of King Hen. 8 divers Abbots surrendered their Possessions to him, of which no Office was found. And now for conclusion; The Queen comes in paramount her first Estate which she had pur altar voy, scil. by Attainder, and now she hath it by the Condition, and so paramount the Title under which the Defendants claim: And afterwards judgement was given for the Queen. Trin. 31 Eliz. In the Common Pleas. CCLXXVII. The Scholars of All Souls and Tamworths' Case. This Case is Reported in the first Part of Leonard. IN a Writ of Right by the College of All Souls in Oxon against Tamworth, the Writ was, Quod clamat tenere de nobis in liberam, puram & perpetuam Elemosinam. And Exception was taken to it, because it ought to be Liberam Elemosinam, without puram & perpetuam. Also it ought to be with a double ee, and not Elemosinam, sed non allocatur● for as to the first Exception it is but Surplusage, and as to the other it is the common course. Another Exception was taken to the Writ, because that the words are, Quod clamat este jus & haereditat' sua, without saying in jure Collegij. An●er●on, The Writ is good enough. If a Parson pleads that he is seized, he shall say in jure Ecclesiae, for he hath two Capacities, and without those words he shall be intended to be seized in his own right: But if an Abbot plead that he was seized he needs not such words, for that he hath not any other capacity: And so of Dean and Chapter, Mayor and Commonalty, and afterwards the Writ was awarded good, and that the Tenant should answer over, Vide Liber Entries, 236, 237. It was also moved, If the College should count of his Seisin within 30 years, because that the Corporation never dies, and then if he count upon his own possession: And it was holden, That if the Warden of the College that now is, was ever Seized, he ought to count upon a Seisin within 30 years: But upon the Seisin of his Predecessor he ought to count of a Seisin within 60 years, as another common person: For the change of the Head, if such Seisin, is as the dying seized, and descent of a common person. Mich. 15 Eliz. In the King's Bench. CCLXXVIII. Wood and Chivers Case. IN Ejectione firmae between Wood and Chivers, the Case was, That the Bishop of Salisbury let the same Chivers the Manor of Lanington for 80 years for 40 l. rent, payable at four usual Feasts, upon Condition that if the rent be behind by the space of three Months after any of the Feasts in which, &c, than a reentry: The Bishop died, after confirmation, J. S. was created Bishop, who granted to R. the Office of Receiver of all his Revenues, etc. exercend' per se vel Deputat. suum; and afterwards the Bishop made a special Letter of Attorney to the said R. to demand the rent, and if it were behind to re-enter: R. at the last day of the three Months came to the Capital Message of the said Manor, an hour before the setting of the Sun; for to demand the rent due at Midsummer than last passed, but none was there on the part of Chivers the Lessee to pay the rent, for which R. left his Servant in the Hall of the said Message, commanding him to stay there, and if any came to pay the said rent, that he give to him Notice thereof, and afterwards he went out of the same House, and walked in a Lane which was within the Gate of the House, and did not return into the House until the Sun was set, and then he returned, and because the rent had not been paid, he digged a Clod of the Land in the Name of the Bishop, and so reentered: And afterwards the Bishop let the said Manor to W. for three years by Deed, signed and Sealed; and because C●●vers continued his possession notwithstanding the reentry, he made also a Letter of Attorney to M. to enter into the said Manor in the Name of the Bishop, and to deliver the said Deed of the said Lease to the said W. upon the Land, as his Deed and these two Deeds the Bishop in his Chamber delivered to the said W. but not as his Deed: But he said unto him, Here is the Lease, and a Letter of Attorney to M. and he shall enter in my name, and deliver to you the Deed of his upon the Land, as my Deed upon the Land: Whereupon he took the two Deeds, and delivered them over to M. who by force thereof entered upon the Land, etc. An Exception was made, because it doth not appear here that the Bishop delivered the Letter of Attorney to M. himself, nor to the use of M. and then it may be taken, that the Deed of Letter of Attorney was delivered to M. to keep only, and not as his Deed. But that Exception was now allowed: For it was holden that the Livery in the Manor was good enough, and so the Letter of Attorney sufficient; for in all Deeds of Feoffments in which Letters of Attorney are contained, the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney, for by such Letter of Attorney no Interest is to pass, but only an Authority. And note, It was resolved by all the justices, That in the computation of these three Months there ought to be allowed to every Month 28 days: And now we are to see if this Rent be well demanded, because the demand was made an hour before Sunsetting, and then the party went out, and walked in the Lane till the setting of the Sun, without any other demand: And it was moved that this walking in the Lane, which was not a common Highway, but a private way, and that the House of the said Farm was of the one side of the Lane, and the Farm-land on the other, and so the Land parcel of the Farm, and then his walking there is a continuance of the demand; quod Catlin concessir, was the Lane a Highway, or not, for the Manor is on both side. And it was agreed by all the justices, That if the Lessor cometh to the Land before the last hour, viz. in the Morning, or in the Afternoon, and demands the Rent, and afterwards goes off the Land, and is not there at the last instant of the day, the same is not a sufficient demand, although that return be presently after the Sun is set: And by Gerrard Attorney General, If the Lessor cometh upon the Land at the last day before the last instant, as in the morning, etc. and demands the Rent, and continues there upon the Land till the Sun be set, without making any other demand, yet the demand for the Manor is good enough, for his presence there is the continuance of the demand, Quod fuit concessum per totam Curiam. And by Catlin, If the Lessor after his demand in the Morning departeth off the Land, and before the last instant returneth, and stays upon the Land till Sunsetting, there is the continuance of a demand, without any further demand, which Wray Chief justice concessit. And it was holden in this case, That where R. left his Servant in the House to stay there, and to signify to him that if any person came to pay the Rent, that that was not any continuance of the demand, for R. himself was but a Servant, and he in that business could not make a Servant: And Catline said, That the Bishop himself might by word command his Servant to demand a Rent, and to make a Reentry, Quod fuit concessum, but in our Case R. had not commanded his Servant to make any demand: And so here upon the whole matter is not any sufficient demand; and so Wray Chief justice said. CCLXXVIII. Trin. 29 Eliz. In the Common Pleas. ACtion upon the Case was brought for these words, Thou wouldst have stolen my Cloak if J.S. had not come in the way; and thou art a Thief, and I will prove it. After Verdict it was found for the Plaintiff. It was objected in Arrest of judgement, That these words were not actionable: For the first words, Thou wouldst have stolen my Cloak, etc. do not by Law give any cause of Action, and when the words subsequent, Thou art a Thief, are depending upon the said former words, and to be construed as spoken in respect of them, and upon that intent. But the Opinion of the whole Court was to the contrary. And that the said latter words should be taken and construed in abstracto by themselves, as in gross, and not as dependant upon the former words, and afterwards judgement was given that the Plaintiff should recover. Mich. 26 Eliz. In the Common Pleas. CCLXXIX. Hungerford and Watts Case. HUngerford brought an Action upon the Case againts Watts, Words. for that the Defendant had said, That the Plaintiff had caused the Defendant to be arrested with forged Writs. It was objected, That the words were not actionable; for it might be that the Writs were forged by strangers without the privity of the Plaintiff, and that the Plaintiff not knowing them to be forged procured the Arrest. But the Opinion of the Court was, That the words were actionable; for the word (Caused) extends as well to the Forgery as to the Arrest, and so amounts to the slander of Forgery. CCLXXX. Mich. 19 Eliz. In the Common Pleas. Costs. IN an Action upon an Escape the Plaintiff is Nonsuited: It was holden that the Defendant should not have Costs. Note, The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff. Notwithstanding this Action is quodam modo, an Action upon the Statute 1. by Equity of the Statute of West. 2. cap. 11. which giveth it expressly against the Warden of the Fleet: Yet properly it is not an Action upon the Statute, for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries, 169, 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff: And an Action upon the Case it is not, for then the Writ ought to make mention of the Escape, and that it doth not here, and yet at the Common Law, before the Statute of Westm. 2. an Action upon the Case lay for an Escape, and so by Dyer, Manwood, and Mounson, Costs are not given in this Case. And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs, for it is not a personal wrong; for the Writ is, quod disseisivit, which is a real wrong. Mich. 29 Eliz. In the Common Pleas. CCLXXXI. Hollingshed and King's Case. HOllingshed brought Debt against King, and declared, That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London: Upon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor, etc. in exteriori Camera, and there had judgement to recover; upon which Recovery he had brought this Action; and upon the Declaration the Defendant did demur in Law, because that the Plaintiff in the setting forth of the Recognizance had not alleged, That the Mayor of London had authority by Prescription or Grant to take Recognizances, and if he had not, then is the Recognizance taken coram non Judice, and so void; and as to the Statute of Westm. 2. cap. 45. the same cannot extend to Recognizances taken in London, which see by the words, De his quae recordata sunt coram Cancellario Domini Regis & ejus Justiciariis, qui recordum habent & in rotulis eorum irrotulantur, etc. and also at the time of the making of that Statute, the City of London had not any Sheriffs but only Bailiffs: And the Statute ordains, That upon Recognizance Process shall go to the Sheriffs, etc. therefore not to them. But the whole Court was clear to the contrary; for we well know, that they of London have a Court of Record, and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the jurisdiction of that Court, and which arise by reason of the matters there depending. Another matter was Objected, for that the Recognizance was taken in interiori Camera, but the Court was holden in exteriori Camera, therefore it was not well taken. But as to that Anderson Chief justice said, Admit that the Recognizance was not well taken, yet because that in a Scire Facias sued upon it, the Defendant shall not take any advantage, he shall be now bound by that admittance: As if one sues a Scire Facias, as upon a Recognizance, whereas in truth there is not any such Recognizance, and the party pleads admitting such Record, and thereupon judgement is given against him, the same is not void, but voidable. And Fleetwood Recorder of London, alleged many Cases to prove the Courts of the King ought to take notice, that those of London have a Court of Record; for if a Quo Warranto issueth to the justices in Eyre, it doth not belong to them of London to claim their Liberties; for all the King's Courts have notice of them: And at the last, after many Motions, the better Opinion of the Court was, That the Plaintiff should recover: Periam aliquantum haesitavit: And it was said by Anderson, and in a manner agreed by them all, That if dependant this Demurrer here, the judgement in London upon the Scire Facias is reversed, yet the Court here shall proceed, and take no notice of the reversal. CCLXXXII. Mich. 20 Eliz. In the Common Pleas. A Man seized of a Barn in which the Tithes of certain Lands have used to be inned, let the same by these words, Demises .. Demise and to Farm-let the Barn, with all Tithes belonging to the same; It was holden, That by that Demise the Tithes did not pass but Tithes which had usually been demised with the Barn, passed by such words, as by the Demise of an House, Cum omnibus terris eidem pertinent', all the Lands pass which have used to be demised with the said House; for the demising usually of the Tithes with the Barn makes the Tithes belonging to the Barn, but not the Inning. Mich. 30 Eliz. In the Common Pleas. CCLXXXII. Haltons' Case. Recognisance. enrolment. A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery, and before the same was Enrolled, the Conusee died; the point was, whether at the request of the Executors of the Conusee it might now be Enrolled: It was the Opinion of all the justices, That upon the request aforesaid it might be Enrolled, like as it was of a Conusance of a Fine taken before a judge, which may be removed out of his hands by a Certiorari, although it be not a Record before that it be certified, in the speaking of that Case. It was made a question, whether the Court of Chancery might help a man who purchased Lands for valuable Consideration, where there wanted the words (Heirs) in the Deed of Purchase, or not; but the point was not resolved. But in that Case it was agreed by all the justices, That after a Fine is levied of Land, Chancery. Attornment. that the Chancery may compel the Tenant of the Land to Attorn: And so where an Annuity or Rent is granted to one for life, or in Fee, and the Deed is Executed, Sealed, and Delivered, but no Seisin is given to the party of the Rent or Annuity; the Court of Chancery may decree a Seisin of the Rent to be given, and the Rent to be paid to the Grantee, and that was said to have been often times decreed in the said Court of Chancery. CCLXXXIV. Mich. 30 Eliz. In the Common Pleas. Intrusion. Trespass. NOte, by Anderson Chief justice. If one intrude upon the Possession of the King, and another man entereth upon him, that he shall not have an Action of Trespass for that Entry, for that he who is to have and maintain Trespass, aught to have a Possession: But in such Case he hath not a Possession, for every Intruder shall answer to the King for his whole time, and every Intrusion supposeth the Possession to be in the King, which all the other justices agreed, except Periam, who doubted of it. And Rhodes justice said, and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass. Quare Clausum suum fregit. CCLXXXV. Mich. 29 Eliz. In the Common Pleas. NOte, It was holden by Popham Chief justice, Remainder. and so said by him to have been resolved upon a Special Verdict in the County of Somerset, 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives, the remainder to the Heirs of the Survivor of them, that the same was a good remainder notwithstanding the incertainty, and that in that case, after the death of the Wife, he should have judgement to recover the Land. But if a man be possessed of a term for 20 years in the right of his Wife, and he maketh a Lease thereof for 10, rendering rend to him, his Executors and Assigns, and dyeth, that in such case, though the Wife surviveth, yet he shall not have the rent, because that she cometh in paramount the Lease: But if a man be possessed of a term in the right of his Wife, Mortgage. and Mortgageth for payment of a certain Sum of Money at a day certain, and before the day the Wife dyeth, and the Husband payeth the Money at the day, and then dyeth; whether his Executors, or the Administrators of the Wife, should have the term, was not then resolved: Ideo Quaere that Case. Trin. 32 Eliz. In the Exchequer. CCLXXXVI. Bartase and Hinds Case. NOte, Manwood Chief Baron gave it for a general Rule for all Counsellors at Law, That they did not advise any Collectors of Subsidies or Fifteen, to exhibit Bills in the Exchequer Chamber for the Nonpayment of Subsidies, etc. for such Bills should not be allowed hereafter, because they had remedy by Distress: Also it was holden, That if any be assessed for the Fifteen which he ought to pay, or if two Towns are to pay together, and the one Town be taxed more than it ought to be, or had been accustomed, those which are grieved by such Sesment may have a Commission out of the Exchequer, which is called Ad aequaliter taxand'; and that was put in ure in a Case between Bartase and Hind, where one of them was Lord of the Town of Little Marlow, and the other of Hedford: And it was also holden, That Fifteen are to be levied of Goods and Chattels properly, and one Township sometimes is richer than another, and therefore it is not reason that they pay their Fifteen always according to the same proportion: But by Clark Baron, where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres, there the Rate and Purport shall be always one, whosoever holds the Land, and as to the Commission Ad aequaliter taxand', Manwood and Fanshaw said, That they could show above twenty Precedents of it. Mich. 17 & 18 Eliz. In the King's Bench. CCLXXXVII. Barnard and Tussers Case. Debt. BArnard recovered in a Scire Facias upon a Recognizance against Tusser, and afterwards brought an Action of Debt upon the same Recovery, and it was adjudged maintainable, notwithstanding that it was Objected, That the judgement in such Scire Facias is not to recover Debt, but to have Execution of the judgement. And by Wray Chief justice, If in a Scire Facias to have Execution of an Annuity the Plaintiff hath judgement, upon such judgement he shall have an Action of Debt. Mich. 17 & 18 Eliz. In the King's Bench. CCLXXXVIII. The Earl of Arundel and Bradstocks Case. THe Case was, The Earl of Arundel let Lands to Bradstock for years, upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited: Bradstock committed Felony, and before any Attainder he obtained his Charter of Pardon: It was holden in this case, That the Earl might lawfully enter; but if the words of the Condition had been, Whereby the Goods ought to be forfeited, chen it had been otherwise; for before Attainder they ought not to be forfeited. Mich. 17 & 18 Eliz. In the King's Bench. CCLXXXIX. Tailor's Case. Outlawry. How avoided by Plea in Person. Tailor was Outlawed in Debt, and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent: It was holden that the party should avoid the same by Plea; than it was moved, if the Plea should be pleaded by Attorney, or in Person: To which it was said by Manwood, That where matter in fait is pleaded in avoidance of an Outlawry, it ought to be pleaded in Person, but matter of Record by Attorney. And Ford Prothonotary said, It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case. CCXC. Mich. 17 & 18 Eliz. In the King's Bench. THe Case was, The Prior of Norwich made a Lease for life by Indenture, by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court; the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected: It was holden in this case, That the Lessee should perform that covenant to him who supplied the Office of Cellerer, scil. the Steward: And it was also holden, That the Lessee should have an Action of Covenant against the Assignee of his Lessor, or his Lessee, at his Election. CCXCI Mich. 19 & 20 Eliz. In the King's Bench. A. B. & C. three joint-tenants give their Lands to D. in tail, joint-tenants. the remainder to A. in tail: It was the opinion of Mead, That the remainder is void: Manwood and Harper, A. and B. joyntenants, Grants. A. makes a Lease for life of his Moiety to C. and grants the reversion to B. the same is good, quod Curia concessit. A. and B. joint-tenants of a Term, A. grants his Moiety to his Companion, the same is good without question, if it be by Deed; but if it be by Word, Quaere. Hil. 20 Eliz. CCXCII. Hills Case. HIll. 20 Eliz. Rot. 371. Giles Hill seized of a Close of Pasture called Pitmonde, and of Broome Acre, two other Closes in his Demesne as of Fee; and so seized the said Giles, and Agatha his Wife, and Robert their Son, and B. his Wife, by Indenture leased the same Broom Acre, and the said other two Closes to W. Hutchin and B. and his Wife for 90 years, Si quis eorum tam diu vixerit reddendo inde annuatim praedicto Egidio, & Uxori ejus, & Haeredibus ipsius Egidij, viz. pro Broome Acre 3 s. 4 d. & pro una Clausura 10 s. & pro altera 20 s. ad quatuor anni Terminos, with Clause of Reentry, If any part or parcel of the said rent be behind, etc. Giles and Agatha died: The Son sold the reversion of Broome Acre 12 Febr. 12 Eliz. by Deed Indented, rendering rend to Smith and Heale; the rent of Broome Acree is behind, Smith and Heale enter, and lease the same to Reynolds for three years, who being Ejected, brings Ejectione firmae and judgement was given for him, for that they are several Reservations, and several Conditions: And a difference was taken between this and Winter's Case; for in Winter's Case the rent reserved originally is entire; but in this Case the rent is originally several; and also in Winter's Case the condition was, That if any part of the rent be behind, that the Lessor should re-enter into the whole. Note that the rend reserved for Broome Acre was 3 s. 4 d. and the condition was, si contingat praedict' reddit', ou ascun parcel de ceo to be behind in part, or in all, by one Month after any Feast, etc. in quo solvi debuit, Quod tunc bene licebit praefat' Egidio, etc. in omnia & singula praemista superius specificat' reentrare; Et nomine, That pro 10 de nariis pro Broome Acre pro uno quarterio anni aretro existent, the Vendees of the Reversion did enter. CCXCIII. Mich. 19 Eliz. In the Common Pleas. Leases. NOte by Dyer and Manwood justices, A. leaseth to B. for years, the remainder to the right Heirs of the said B. and makes Livery accordingly, that the said remainder is void, because that there is not any person in esse who can take presently by the Livery, and every Livery ought to have its operation presently: But where a Lease is made to B. for life, the remainder to his right Heirs, that he hath a Fee executed, and it shall not be in abeyance; and judgement was given accordingly. CCXCIU Hil. 23 Eliz. In the Common Pleas. THe Case was, a Man made a Lease of a Garden, containing three Roods of Land, the Lessee is ousted, and he brought Ejectione firmae, and declared, That he was Ejected of three Roods of Land: And by Rhodes Sergeant, The Declaration shall not be intended that the Plaintiff was Ejected out of the Garden of which the Lease was made; which Dyer granted; for Gardinum is a thing which ought to be demanded by the same name in all Praecipes: And this Action of Ejectione firmae is higher than an Action of Trespass; and the Plaintiff if he recover shall be put into possession by it. Mead and Windham held the contrary; and they agreed, That in all real Actions a Garden shall be demanded by the name of Gardinum. But this Action of Ejectione firmae is in the nature of Trespass, and it is in the Election of the party to declare, as he doth, or for to declare of the Ejectment of a Garden: For a Garden may at one time be used for a Garden, and at another time for Ploughland: But they conceived the better course to be, and the better order of pleading to have been, if the Plaintiff had declared, That he was Ejeected of a Garden containing three Roods of Land, as in the Lease it is specified, Vide 22 E. 4. 13. Assize of a Garden. Vide Cook 11 Part, Savells Case. Ejectione firmae of a Close vocat' Leedes, containing three Roods, a Rule that such Action lieth not of a Close, although it hath a certain name, but it ought to be of so many Acres, and of what nature every Acre is. CCXCU. Mich. 19 Eliz. In the Common Pleas. AN Action of Debt was brought by an Administrator, who declared, That the Administration was committed unto him by the Archbishop of Canterbury: It was holden, That in such Case he needed not to declare Ratione Praerogativae suae; or that the Intestate had bona notabilia in divers Dicocesses; for if the Intestate had not Goods in divers Dioceses, the same shall come and be showed on the other side; and then the Plaintiff shall show the same in certain, and to that purpose divers Precedents were showed to the Court by Sandbege and Best, principal Clerks of the Court; and the same was also affirmed by the Prothonotaries of the Court of Common Pleas. CCXCVI Mich. 19 Eliz. In the King's Bench. IN an Action upon the Case, the Plaintiff declared upon Trover and Conversion to his use; It was pleaded by Plowden, That the Defendant before the Action brought, had lawfully sold the Goods, whereof, etc. and he demanded judgement of the Action: As if one hath Goods by Trover, and Bails them over before any Action brought against him, Detinue doth not lie against him, which Wray Chief justice concessit, as to the Detinue: But where such a person, who hath Goods by Trover, Bails them quibusdam ignotis, such an Action will lie against him. CCXCVII Mich. 19 Eliz. In the Common Pleas. IN a Writ of Dower the Demandant recovered by default, return of the Sheriff. and the Sheriff took an Enquest de Officio, by which it was found that the Husband did not die seized prout eis constare poterit; and that Inquisition is returned by the Sheriff, and filled: It was moved by Mead, That the Office and Inquisition was not good, for the Office ought to have expressly found, That the Husband died seized, or not, and not ambiguously as it doth here, prout eis constare poterit, and therefore by the Award of the Court, the return was taken off the File because it was insufficient, and a Writ de novo awarded. CCXCVIII. A. Is bound to B. upon Condition to stand to the Arbitrement of certain persons, who award that B shall make a Release to A. of all Actions, Debts, Duties, and Demands at the request of A. and afterwards A. comes to B. and requires him to make him a Release; who said to him, That he was unlearned, and that he would go to one to make it, and the next day after the request he seals and delivers it to A. who accepts of it: It was holden by Windham and Mead, That notwithstanding that Acceptance, the Obligation was forfeited; for they said, That presently after request, he ought to have done it in the speediest manner that might be. Vide acc' 15 E. 4. 31. Vide also Wotton's Case, 16 Eliz. Dyer 338. Mich. 26 Eliz. In the Common Pleas. CCXCXI. The Dean and Chapter of Christ Church and Parotts Case. Grants of the King. NOte in the Common Pleas in a Case between the Dean and Chapter of Christ Church in Oxford and Parott; It was holden by the justices, that if the King grants Lands unto a Corporation by another name than that which they were named before, yet the Land shall pass, and the Letters Patents shall be to them as a new Incorporation, etc. Mich. 19 Eliz. In the Common Pleas. CCC. Beechers Case. Jurors. BEecher being a Gentleman of the Middle-Temple, was Returned in an Attaint, and before the return of the Panel, he became a Minister of the Church; and now at the day of the return he appeared, and prayed to be discharged according to the Privilege of those of the Ministry: But the Court would not allow of his prayer, because that at the time of the Panel made he was a Layman: Wherefore he was sworn one of the Iury. Hil. 19 Eliz. In the King's Bench. CCCI Vernon and Sir Thomas Staveleys Case. TEnant in Tail made a Lease for the life of the Lessee according to the Statute of 32 H. 8. Discontinuance. and by Wray and Gawdy justices, the same was not a Discontinuance: But if Tenant in Tail levyeth a Fine which bindeth his Issue by the Statute of 4 H. 7. 32 H. 8. that same is a Discontinuance. Look upon the Statute of Leases, and of Fines; the words in the former are, scil. Such Fines shall be good and effectual in the Law; but in the other, scil. Such Fines shall be a bar against the Conusor and his Heirs. And if Tenant in Tail after such a Fine dyeth without Issue, the Donor cannot enter, but is put to his Formedon: And as to the principal Case, Dyer agreed in opinion with Wray and Gawdy. Trin. 28 Eliz. Rot. 1027. CCCII. Milborne and the Inhabitants of Dunmowes' Case. MIlborne brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex: It was found by Special Verdict, Upon Statute of Hue and Cry. That the Plaintiff was rob the 23 of April, inter horam secundam & Matutinam tempore Nocturno, & ante Lucem ejusdem diei; and the Opinion of the Court was clear, That the Plaintiff should be barred, for the said Statute provides for ordinary Travel, as in the case of Archpole, who came to his Inn after Sunset, & ante Noctem in tempore diurno, which is an usual time for Travellers to come to their Inn; but the Law doth not receive any in protection of this Statute, which travel in extraordinary hours; for it is the folly of the traveller to take his journey so out of season; and the inhabitants are not bound to leave their houses, and attend the highways tempore Nocturno: And another reason was alleged by the justices, because that the said Statute appoints Watch to be kept in the time of night à festo Assensionis usque festum Sancti Mich. and this Robbery was done the 23 of April, so out of the said time: And afterwards judgement was given against the Plaintiff. CCCIII Hil. 29 Eliz. In the Common Pleas. Devises. Sergeant Fenner demanded the Opinion of the Court upon this Case. A. devised Lands to his Wife for life, and afterwards to B. his Son, and his Heirs, when he should come to the age of 24 years; and if his Wife died before that his said Son should attain to the said age of 24 years, that then I S. should have the said Lands until the said age of the said Son: A died, J. S. died the Wife died, the Son being within the age of 24 years; If the Executors of J. S. should have the Lands after the death of J. S. until the said age of the Son, was the question. Anderson and Periam conceived that he should not; for this Interest limited by the Will to J. S. was but a possibility, which was never vested in him, and therefore could not by any means come to his Executors. Rhodes and Windham doubted of it. And Fenner put the Case 12 E. 2. Fitz. Condition 9 where Land is Mortgaged to J. S. upon payment of Money to the said J. S. or his Heirs, such a day, and before the said day J. S. by his Will deviseth, That if the Mortgagor pay the Money, that then A. B. shall have them, that this Devise of that possibility is good, which Case all the justices denied. And Windham put the Case between Welden and Elkington, 20 Eliz. Plowd. 519. where Lessee for years devised his term to his Wife for so many of the years of the said term as she should live; and if she died within the term, that then his Son Francis should have the residue of the years not incurred, Francis died intestate, the Wife died within the term the Administrator of Francis had the residue of the term, and yet nothing was in Francis the intestate but a possibility. A Lease was made to one Hayward, his Wife, and one of his Children, Habendum to Hayward for 99 years if he so long live, and if he die within the said term, that then the said Wife should have the said term for so many of the years as should be to come at the time of the death of her Husband, and if she died also within the said term, that then the Child, party to the Demise, should have the same for so many of the years of the said term as should be not expired at the time of the death of the Wife. And the case of Cicell was cited Dyer 8 Eliz. 253. A Lease was made to William Cecil pro termino 41 annorum si tam diu vixerit: Et si obierit infra praedictum terminum, extunc Eliz. uxor praedict. Will Cicell habebit, & tenebit omnia & singula praemissa pro residuo termini praedict. incompleti, si tam diu vixerit: Et si praedict. Eliz. obierit infra terminum praedict. Tunc Willielmus Cicell the Son, etc. shall have and hold it pro residuo termini praedict. completi. And it was holden by Catlin and Dyer, that these Remainders were void, for the term is determinable upon the death of William Cecil the Father, and the residue of the said term cannot remain: And by the Lord Anderson, the Remainders of the term limited ut supra are utterly void; for every Remainder ought to be certain, but here is no certainty; for it may be that the first possessioner of the term may live longer, so as he in the Remainder cannot know what he shall have. And such was also the Opinion of Rhodes. And he put the Case between Gravenor and Parker, 3 & 4 Phil. & Ma. Dyer 150. A Lease was made to A. for life by Indenture, Et provisum fuit by the same Indenture, That if the Lessee died within the term of sixty years then next ensuing, that then his Executors should have in right of the Lessee so many of the years as should amount to the number of sixty years, to be accounted from the date of the Indenture; and it was holden, That that secondary Interest to the Executors was void, and that the words concerning the same did sound in Covenant. CCCIU Trin. 31 Eliz. In the Common Pleas. THe Case was, A made B. and C. his Executors, Executors Action. they took upon them the charge of the Administration, and afterwards B. died; and now an Action of Debt was brought against the surviving Executor, and the Executor of the other Executor, and the Writ was abated, because against the surviving Executor it ought only to be brought, Pasc. 30 Eliz. In the Common Pleas. CCCV. Smith and Babbs Case. SMith borough an Action upon the Case against Babb for stopping of Water incessanter decurrent. by his Land, Action upon the Case. Stopping of Water. by which his Land was drowned, and his Grass rotten: Exception was taken to it, because it is not alleged, That the Water had so run time out of mind. Gaudy justice, If the Water hath run there but for one year, if the Defendant hath diverted it, so as he hath drowned the Plaintiffs Land, the Action will lie well enough. Trin. 26 Eliz. In the Common Pleas. CCCVI. Basil Jonson's Case. BAsil Johnson one of the Clerks of the Chancery, Privilege of a Clerk in Court. was impleaded in the Common Pleas by Bill of Privilege, by an Attorney of the said Court, and now Basil came into Court, and shown that he is one of the Clerks ut supra, and prayed his Privilege; but the whole Court was against it, because the Plaintiff is as well privileged in this Court, as the Defendant is in the Chancery, and was first interessed in his Privilege by the bringing of his Writ, but the Defendant was not entitled to his Privilege before the Arrest; and afterwards by the award of the Court; the said Basil was ousted of his Privilege. 32 Eliz. In the Common Pleas. CCCVII. Collier and Collier's Case. Prohibition. BEtween Collier and Collier the Case was, That the Plaintiff was Sued for Incontinence in the Spiritual Court, and there they would have him Answer upon his Oath if he ever had Carnal Knowledge of such a Woman; upon which he prayed a Prohibition: Vide inde F. N. B. 41. a. Register 36. Et nemo tenetur seipsum prodere: But the Court would advise of it. 32 Eliz. In the Common Pleas. CCCVIII. Mountney and Andrews Case. Execution. IN a Scire Facias by Mountney against Andrews of Grays-Inn, upon a judgement in Debt, the Defendant pleaded, That heretofore a Fieri Facias, at the Suit of the now Plaintiff, issued to the Sheriff of Leicester, by force of which the said Sheriff took divers Sheep of the Defendants, and that as yet he doth detain and keep them. It was holden by the whole Court to be a good Plea, although he did not say, That the Writ was returned; for the Execution is lawful notwithstanding that, and the Plaintiff hath his remedy against the Sheriff. Hil. 29 Eliz. In the Common Pleas. CCCIX. Dawbney and Gores Case. BEtween Dawbney Plaintiff and Gore and Gon Defendants, in a Writ of Deceit, In Arrest of judgement it was moved, That two are accountable to one, and the one of them accounts without the other, that that is not any account, and then no account can be assigned in that. As to that it was said by Popham Attorney-General, That notwithstanding that one be not compellable to account without his Companion, and by way of Action of Account, the one shall not account without the other, unless the Process be determined against him, and then he who appeareth hath accounted and the other against whom the Process is determined, hath purchased his Charter of Pardon, the account made by his Companion shall bind him. Vide inde 41 E. 3. 13. Yet if one of the Accomptants will account willingly, the same is a good account: And in account, if one confesseth, and the other pleadeth in bar, the confession of the one shall bind the other; and such was the Opinion of the Court. Another matter was moved in this case, because that one Tedcastell and Swinnerton, being accountable to the said Gores and Dawbney, they have accounted to Dawbney only, and he alone hath accepted of the account, and that is not any account, therefore no deceit, but the Action of Account doth remain. To which it was answered by Popham, That the same was a good account, being accepted by Dawbney, and should bind the Gores; for an Account is a personal thing, as an Obligation, which may be released by one of the Obligees. Vide 14 E. 4. 2. Where one was accountable to two, and the one of them did assign Auditors, before whom the Accountant is found in Arrearages, and thereupon both of them brought Debt upon Account, and well: And so none of the Exceptions were allowed by the Court. Mich. 33 Eliz. In the Common Pleas. CCCX. Trivilians Case. THo. Trivilian Tenant in tail of White Acre, Black Acre, and Green Acre, leased White Acre for years to B. and Black Acre to C. and afterwards made a Feoffment of all three Acres to F. and others by Deed, in which Deed was comprised a Letter of Attorney, in which he ordained Harris, and three others, his Attorneys, jointly and severally to enter in the Premises, and every part thereof in the name of the whole, and possession in his name to receive, and afterwards to make Livery, &c with other ordinary and usual words; and it was expressed in the said Deed of Feoffment, that the Feoffment should be to the intent to perform his last Will; and afterwards one of the said Attorneys entered into the Land demised for life, and expelled the Tenant for life, and made Livery and Seisin to the Feoffees accordingly; and afterwards the said Harris, another of the Attorneys, scil. one of the joint Lessees, being one of the three Attorneys, made Livery of the Land demised for years; and after the Feoffor in the time of Queen Eliz. by his last Will devised, That the Feoffees should be seized of the Land, Rents and Reversion, until of the Issues and Profits thereof certain Sums of Money should be paid to his younger Sons, and died. And Exception was taken to the pleading, because it is not specially shown, that the Land devised was holden in Socage. And that was holden a sufficient Exception: And the Court was of Opinion, That the Opinion of Dyer, Devises. Whiddon, and Bendloes in 16 Eliz. was not Law; for by the common Law no Land was devisable, but by Custom, which ought to be pleaded where Title is made by Devise. Tenances. And now by the Statute all Lands holden in Socage are devisable, and but two parts of the Land holden by Knight Service; and therefore he who would make Title to himself by a Devise, aught to show the Tenure of it, and so it was lately adjudged in the King's Bench in Thompson's Case. And by Anderson and Periam, This Feoffment was well executed for the manner of it, Attorneys make Livery. for the Letter of Attorney is Conjunctim & divisim ad intrandum in omnia & singula praemissa; and upon these words one Attorney may make Livery in one parcel of the Land, and the other Attorney in the other parcel, and in this case, if one of the said Attorneys make Livery in one part only, without meddling with the residue by himself, or by any other, the same shall pass; for it is not necessary that all pass, or nothing at all. 7 Eliz. Dyer 79. CCCXI The Duchess of Suffolk's Case. ADrian Stokes and the Lady Francisca Duchess of Suffolk his Wife, brought a Quare Impedit against the Bishop of Exeter and others: The Bishop pleaded, and demanded judgement of the Writ, because he said, It appeareth by the Writ, Quod praedicta Francisca uxor praefati Adriani, nominatur in dicto Brevi Domina Francisca Ducissa Suffolk, ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian, and her the said Frances, had lost her name of Dignity, and aught to be named Francisca uxor praefati Adriani: Wherefore, and because the said Frances is named Lady Duchess of Suffolk in the said Writ, therefore he demanded judgement of the Writ. And afterwards the Plaintiffs did discontinue their Suit, and durst not proceed. Vide the Case 7 E. 6. Dyer 79. Mich. 4 & 5 Phil. & Mary. CCCXII. The Queen, Due, and Kirbys Case. THe King and Queen brought a Writ of Deceit against Due and Kirby, and declared, That coley, was seized of certain Lands in Fee, and holden of the King and Queen as of their Manor of Westbury, which Manor is ancient Demesne, and so seized, levied a Fine to the said Due for Conusans de droit &c. Due rendered unto coley for life, the Remainder over to Kirby in Fee; coley died, Kirby entered as in his Remainder: Kirby pleaded, That the Land is Frank-fee, etc. upon which they are at Issue; which Issue depending, not tried, Due died: It was moved that the Writ should abate. But it was allowed; for this Action is but Trespass in its Nature for to punish the said Deceit: And Due had nothing in the Land, but is named only because he was party to the Deceit. And no Land is to be recovered, but only the Fine reversed. Pasc. 26 Eliz. In the King's Bench. CCCXIII russel's Case. RUssel was condemned in an Action of Debt, Execution. and after the year and day the Plaintiff sued a Capias ad satisfaciend' against him, and he was taken by force of it, and committed to the Marshal as in Execution: It was holden by the Court, That the same was a void Execution, and not only avoidable by Error, and therefore the Defendant was discharged, for it is not at any Execution; and the Plaintiff may have a Scire Facias when he will. Pasc. 26 Eliz. In the King's Bench. CCCXIV. Wroth and chapels Case. BEtween Wroth and Capell the Case was, 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment, because there were no words of Freehold in it, or to prove that the party grieved had any Freehold, whereof he might be disseised: But because the words of the Indictment were Expulit & disseisivit, which could not be true, if the party expelled and disseised had not Freehold, therefore the Exception was not allowed, etc. Another Exception was taken to the Indictment, for that the words were in unum Tenementum intravit, and this word Tenementum is too general, and an incertain word; and therefore for that cause the party was discharged. But the Indictment was further in unum Tenementum, & 10 Acras terrae eidem pertinent. and as to those Acres he was put to answer. CCCXU. Pasc. 26 Eliz. In the Common Pleas. Execution. NOte, It was agreed by the Court, and affirmed by the Clarks, That if an Action of Debt be brought upon an Obligation against two upon one joint Praecipe, and the Plaintiff hath judgement to recover, that one joint Execution ought to be sued against them both; but if the Suit were by Original and several Praecipes, Execution might be sued forth against any of them. Mich. 8 & 9 Eliz. In the Common Pleas. CCCXVI Belfield and Rous's Case. IN Dower (by Sibyl Belfield, who was the Wife of Anthony Rous) against Thomas Rous, they were at Issue, upon Detinue of Charters, and it was found for the Demandant; and it was further found, That the Husband of the Demandant, of whose Seisin she demanded Dower, died having Issue Charles Rous, Quodque idem Carolus & dict' Sibyl perceperunt & receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands, whereof the Demandant now demands Dower; and that the said Charles afterwards died without Issue, after whose death the said Thomas Rous entered, etc. And judgement was given for the Demandant, and to recover damages after the death of her Husband. CCCXVII. Pasc. 7 Eliz. In the Common Pleas. Uses. BEfore the Statute of Uses a Feoffment is made to the use of a Man sole, and a Woman sole, and their Heirs, and afterwards they intermarry, and afterwards the Statute of Uses came: It was the Opinion of the justices, That they should hold the Land in such sort as they held the Use, scil. by several and divided Moieties; for by the said Statute the possession shall be executed to the Use, in such Nature, Condition, and Quality as it was before. Mich. 28 & 29 Eliz. In the King's Bench. CCCXVIII. Sir Gervaise Clyftons' Case. A Quo Warranto was brought against Sir Gervaise Clyfton, 3 Leon. 184. Quo Warranto. and shown, That the said Sir Gervaise was seized of a Manor and a Message, within which he claimed to have a Court with view of Frankpledge, and other Liberties, and that without any Grant or Authority, usurpavit Libertates praedictas: That the Defendant pleaded Quod non usurpavit Libertates praedictas infra Messuagium praedict' modo & forma; and thereupon it was demurred in Law, for it was said, That the Defendant ought to have said Non usurpavit Libertates praedictas, nec eorum aliquam, for he ought to answer singulum; and also he ought to have pleaded as well to the Manor as to the Message; for if the Defendant hath holden Court within any place of the Manor it is sufficient. And the Case 33 H. 8. Br. Travers sans ceo 367. was cited, and Information was in the Exchequer, That the Defendant had bought Wools of A.B. contrary to the Statute, the Defendant pleaded, That he had not bought of A. B. and the Plea was not allowed, for he ought to have said, That he had not bought modo & forma, for if he had bought of A. B. or J. S. the same is not any matter, nor traversable, which Cook denied to be Law: And he conceived also that the Information upon the Quo Warranto is not sufficient; for by the same the Defendant is charged to hold a Court, and it is not showed what Court, and it may be it was a Court of Pypowders, Turn, etc. And Vide 10 E. 4. 15, 16. a Quo Warranto contains two things, 1 Claim, 2. Usurpation. And here the Defendant hath answered but to the Usurpation, and it hath said nothing as to the Claim: And it hath been holden here, heretofore, that he ought to make answer to both. And it hath been holden in a Reading upon the Statute de Quo Warranto, which is supposed to be Frowicks' Reading, That a Quo Warranto doth not lie of such Liberties which do not lie in Claim, as Goods of Felons, etc. which lieth only in point of Charter. CCCXIX Temps Roign Eliz. THe Prior of Bath leased his Manor of A. to C. for life, rendering rend, and afterwards the Priory was dissolved, the King leased the whole Manor, cum pertinenciis, to Sir Walter D. Kt. Dyer, The matter depends upon this point. If the Demesne be severed from the Services during the life of the Lessee: And he conceived, That the Lord cannot hold a Court, if such a power be not reserved to him upon the Lease. Weston, The Manor nor is in suspense during the Lease, for a Reversion upon an Estate for life, and Services in possession cannot be united to make a Manor, but contrary if but parcel had been leased, Quod Curia concessit. Welch, The Demesnes are severed from the Services for ever, as if they had been granted in Fee; but here having regard to the Lessor, the Demesnes and Services are united and made one Manor; but as to the Lessee, and all others, the Services are in gross; and of that Opinion was also Dyer. And he said, If a Bishop leaseth his Demesnes of his Manor for life, and dyeth, the Reversion shall be in his Successor, and was in himself for his life in the right of his Church: And if Husband and Wife seized of a Manor in the right of his Wife, lease the Demesnes of the said Manor for life, yet he hath the Reversion in the right of his Wife, and in such Case it doth remain a Manor; but if the Husband sole had made the Lease, he had gained the Reversion to him, and so severed it from the Manor. CCCXX. Temps Roign Eliz. Devises. A. Devised that his Wife should take the Profits of his Lands, until his daughter should come to the full age of 25 years, and if the daughter died within the age of 18 years, than his wife should have the Land for her life, the remainder over to J. S. The daughter became of the age of 18 years, and died before she came of the age of 20 years; and Dyer held clearly, That the Remainder was gone; for the daughter accomplished, and survived the age of 18 years: And he said that the case late depending in the King's Bench was this, The Husband devised the Profits of his Lands to his Wife for 25 years, and that than his Son should have it in Tail to him, and to the Heirs of his Body, etc. now before the 25 years expired he hath Fee, and if he hath Issue, than his Estate is changed into Tail: But by Carus he hath both Estates, scil. Fee-tail, and Fee-expectant. CCCXXI Temps Roign Eliz. Surrenders. A Woman Tenant in Tail made a Lease not warranted by the Statute, took a Husband, had Issue and died; the Husband being Tenant by the Courtesy surrendered to the Issue: It was holden that he should not avoid the Lease during the life of the Tenant by the Courtesy: But yet some held, That the Surrender ought to be by Deed, as a Lease to A. for life, the Remainder to B. for life, the Remainder to C. in Fee; if B. surrenders to C. it must be by Deed. CCCXXII. Temps Roign Eliz. THe Case was this, A. leaseth Lands to B. for years, Extent. rendering Rend, with Clause of reentry; and afterwards Debt is recovered against him: It was holden, That now the Moiety of the Rent and the Reversion was extendable by Elegit, and upon such Extent, Condition suspended. the Condition is suspended during the Extent, as well in the Lessor, as in the Party who hath the Extent. Temps Roign Eliz. CCCXXIII. Mitchell and Nordens Case. Procedendo upon Aid-Prayer in Dower. ELizabeth ', etc. Dilectis Jacobo Dyer, etc. Monstravit nobis Elizabeth ' Mitchell, quae fuit uxor, etc. Quod cum ipsa prosecuta fuit coram vobis & sociis vestris, etc. Breve nostrum de Dote unde nihil habet versus Thomam Norden etc. Et praedictus Thomas venit, & dixit, Quod vir praedictae Elizabethae was seized, and leased to him for life with warranty; and for that cause he vouched to warranty Tristriam' Mitchell Filium & Haeredem dict' Richardi infra aetatem existen', & in Custodia eo quod dictus Richardus die quo obiit, etc. Et hoc paratus est verificare. Unde non intendit quod vos praefati Justiciarii nostri nobis inde inconsultis ulterius procedere velletis: Et petiit auxilium de nobis, & habuit: Et super hoc dies datus est tam praefatae Eliz. quam dict. Tho. Norden à die Pasc. etc. Et dictum fuit praefatae Eliz. Quod sequatur penes vos, quarum quidem allegatione praetextu vos in placito praedict. ulterius procedere distulistis, & adhuc differtis in ipsius Eliz. dispendium & gravamen: Et super hoc, eadem Eliz. venit hic coram nobis in Cancellaria nostra; Et petit Breve nostrum de Procedendo, inde in hac parte vobis dirigend': Super quo quaesita fuit in eadem Curia Cancellariae nostrae à Gilberto Gerrard, Attornato nostro generali, qui pro nobis in hac parte sequitur si quid dicere scivit, aut potuit, per quod dict' Tristriamus infra aetatem, & in custodia nostra existen' ut praefatur, ad Warrantiam obligetur aut obligari debeat, aut si idem Gilbertus aliquid pro nobis habeat aut dicere scivit quare Breve nostrum de Procedendo praefatae Eliz. in ea parte minime concederetur. Qui quidem Gilbertus adtunc, & ibidem dixit, quod praefat' Tho. Norden non informavit praedict. Gilbertum de aliquo, per quod praedict. Tristriamus in custodia nostra existen' ullo modo obligetur ad warrantizand', & eidem nihil dixit aut dicere scivit & potuit quia praedict. Breve de Procedendo eidem Eliz. in ea parte concederetur: Nos inde nolentes eidem Eliz. justiciam ulterius differre in hac parte: Vobis Mandamus, quod si coram vobis in placito praedict. taliter sit processum & allegat', tunc in placito illo, & in redditione Judicii in eodem placito cum ea celeritate quam de jure & secundum Legem & Consuetudinem hujus Regni nostri Anglioe poteritis procedatis, & partibus praedict. plenam & celerem, etc. dicta allegatione non obstante. Teste me ipsa, etc. Et super hoc eadem Eliz. petit Judicium & Seisinam suam versus praedict. Thomam Norden de tertia parte Tenementorum praedict. cum pertinentiis. Super quo visis, etc. Consideratum est, etc. Quod praedict. Elizabetha recuperet seisinam suam versus praefatum Thomam Norden de tertia parte Tenementor' praedictor'. Et quod idem Thomas expectet si praedict' Tristriamus Tenementa praedict. unde etc. ei warrantizari debeat pro recompensatione valentiae tertiae partis praedict' versus eundem Tristriamum ratione Warrant' illius habend' durant' minore aetate sua, Et donec manus dict' Dominae Reginae à possessione terrae ipsius Tristriami amoveantur. Virtute Brevis istius mihi direct' ultimo die, etc. habere feci infranominat' Eliz. plenariam seisinam de tertia parte Messuagii, viz. de una Aula parcell' Messuagij praedict. ac de una Camera sive Conclave in Messuagio praedict. existent', necnon de uno Solario, ac de una parcell' ambulatorij vocat' a Gallery, alia parcell' dict' Messuagii necnon de tertia parte unius Molendini, viz. de integro Molendino praedict' per quemlibet tertium mensem quolibet anno durante vita, etc. occupand', & gaudend', etc. CCCXXIV. Hil. 25 Eliz. In the King's Bench. Traverse. IN an Action upon the Case, the Plaintiff declared upon certain Corn which came to the hands of the Defendant, and that he converted it, and supposed the coming to be to his hands in London. The Defendant said, That he was seized of certain Lands in R. in Berks, and that the Plaintiff did thereof him disseise, and sowed the Lands, and before severance he himself reentered, and took away the Corn, as was lawful for him to do absque hoc, that any Corn came to his hands in London: and by the Opinion of the whole Court, the Traverse was holden to be good. Hil. 25 Eliz. In the Common Pleas. CCCXXV. Wingate and Sands Case. EJectione firmae by Wingate against Sands: It was moved upon Evidence, That a Fine was levied, and in one Term three Proclamations were made, and before that the fourth Proclamation was made, the Term was adjourned, so as the fourth Proclamation could not be made the said Term: It was agreed by the whole Court, That by that adjournment the fourth Proclamation was not executed, but should be supplied the next Term, in which the fifth Proclamation was to be made. Trin. 29 Eliz. In the Star-Chamber. CCCXXVI. The Lord Cromwell and Townsends Case. HEn. Lord Cromwell Exhibited a Bill in the Star-Chamber against Roger Townsend Esq for that the said Townsend in an Action between James Tavernor Plaintiff, and Ja. Cromwell, Firmor of the said Lord Cromwell Defendant in Trespass, in the favour or unlawful maintenance of the said Tavernor, did procure a partial jury to be returned. And upon the hearing of the Cause, the matter given in Evidence was, That the said Tavernor was a Copyholder of the said Lord Cromwell, and that the said Lord, pretending that the said Tavernor had forfeited Copyhold, caused the said Ja. Cromwell to make an Entry in the right of the said Lord upon the said Tavernor, upon which Entry Tavernor brought an Action of Trespass against the said Ja. Cromwell, in which Action the parties were at Issue upon the Forfeiture; and before any Venire Facias issued, Tavernor hearing that one Steward, who was Bailiff of the Liberty under the Earl of Arundel, and who ought to have made the Panel, etc. was purposed to have made the said Panel not duly, viz to have returned in the same great Gentlemen of the Country, who were Lords of Manors in favour of the said Lord Cromwell; That he went to the said Roger Townsend, who was then one of the principal Servants and Agents of the said Earl, and shown unto him, That if those great Persons and Lords of Manors be returned for the trial of the said Issue, peradventure they would not so easily appear for the Expedition of the said Parties as Gentlemen of an Vnder-Condition; and also many of them being Lords of Manors, and having customary Tenants, and therefore not indifferent to try that Issue; and prayed his Order to the said Steward for the making of an indifferent Panel: Upon which said Conference with the said Steward for the making of an indifferent Panel, and showing unto him that in doing and making of the same there was not convenient, nor any equal course to return Knights, Esquires, or Lords, but rather such sufficient Persons for the greater Expedition of justice, and Indifference of Trial: And afterwards the said Tavernor exhibited a Petition, showing all the special matter, and prayed him to give order for the making of an indifferent Panel for the trial of that Cause; which Petition was delivered to the Earl by the said Townsend, in the name of the said Tavernor; upon which the said Earl referred the said Matter, and the ordering of the same to three of his chiefest Agents and Counsellors, viz. Dicksey. Townsend, and Chrell, and delivered to them the Book of the Freeholdry within the said Liberty, who according to their Commission made a Panel, which was returned, and the jury passed with the said James Cromwell in the right of the said Lord: And if that intermeddling of Townsend with the Matter, ut supra, etc. especially his conference with the Bailiff, be maintenance or not, was the Question: And by Anderson and Wray it was said for Law, That because the said Townsend was in a manner a Servant to the said Earl, who had the return of the Writs, and one of his principal Counsellors and Agents, and hearing ex insinuatione of the said Tavernor the misdemeanour of the Bailiff of his Lord, could not do better than admonish the said Bailiff of his duty, for it concerned the Honour of his Master, and also his Inheritance in the said Liberty: But if the said Townsend had been a mere stranger to the said Earl, so as no such privity had been betwixt them, the same had been clearly Maintenance in Townsend, as it was lately adjudged in that Court in the case of one Gifford, where the parties being at Issue, and a Venire Facias to the Sheriff to return a jury, a stranger wrote to one of the jurors, who was returned in the Panel, praying him to appear at the day, and to do in that cause according to his Conscience, and the same was adjudged Maintenance. And afterwards upon full hearing of the cause, the said Townsend by the Sentence of the Court was acquitted of any Maintenance, with great allowance and approbation of many Lords of the Counsel there present, Bromley Cancellario tantum exclamante. CCCXXVII. Mich. 15 & 16 Eliz. In the Common Pleas. IN a Writ of Partition the Defendant prayed in Aid, the Plaintiff counterpleaded the Aid, upon which Issue was joined, and found for the Plaintiff: It was the Opinion of the Court That it was peremptory for the Defendant. And the Plaintiff shall have the Partition, scil. Quod fiat Partitio, and the reason thereof is for the delay of the Plaintiff, and for the vexation of the Country who are to try it; otherwise it had been if it had been adjudged against the Defendant upon a Demurrer. CCCXXVIII. Mich. 21 Eliz. In the King's Bench. IN a Formedon of a Manor, the Tenant pleaded joint-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed, and upon that Issue was joined, and found for the demandant: Upon which a Writ of Error was brought; and Error assigned in this, That whereas upon joint-tenancy pleaded by Fine, the Writ ought to abate without any Averment by the Demandant against it; the Averment hath been received against the Law: And by Southcote at the common Law, If the Tenant plead joint-tenancy by Deed, the Writ should abate without any Averment, but that was remedied by the Statute of 34 E. 1. but joint-tenancy by Fine doth remain as it was by the common Law; for he hath punishment enough in that, because by that Plea, if it be false, he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded joint-tenancy; and the Law doth not intent that he will so slightly departed with his Land for the abatement of a Writ: Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger, the Writ shall abate, without any Averment of Frank-estate; for the Law intends that the Tenant will not enthrawl himself without cause. Wray to the same intent: But the Demandant may confess and avoid the Fine, as to say, That he who levied the Fine was his Disseisor upon whom he hath before entered, etc. And if Tenant in Fee-simple be impleaded, and he saith, he is Tenant for life, the Remainder over to A. in Fee, and prayeth in Aid of A. the Demandant shall not take Averment, That the Tenant the day of the Writ brought was seized in Fee. Note, That in this Fine joint-tenancy was pleaded but for parcel; and it was holden by ●ray and Southcote, That the whole Writ should abate, as in a Writ against many, the misnosmer of the one shall abate the whole Writ against all the Defendants; and so where the Demandant enters into parcel of the Land in demand, if the Land in demand be one entire thing, it shall abate the Writ in all. In this Case the Demandant ought to have in his Writ a Foreprise of the Land, parcel of the Land in demand, whereof the joint-tenancy by Fine is pleaded; for this dismembering of the Manor, and destruction of the Land whereof the joint-tenancy is pleaded, is peravail and beneath the Gift whereof the Formedon is conceived; and therefore in respect of the title of the Demandant, it remains in right parcel of the Manor, and therefore it ought to be demanded accordingly with a Foreprise: But if A. gives to B a Manor, except 13 Acres in Tail, there if after upon any Discontinuance the Issue in Tail is to have a Formedon, in such Case there needs not any Foreprise, for the said 10 Acres were never severed from the Manor upon the Gift. But if Land in demand be several as 20 Acres but two, this Foreprise is not good, Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat' terrae; except a Selion, and the Writ was abated, for every demand ought to be certain, but a Selion is a parcel of Land uncertain as to the quantity, in some places it is an Acre, in some more, and in some less. Another point was, That because that the Tenant hath admitted and accepted this Averment, scil. Sole Tenant as the Writ supposeth; if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ: And Wray conceived that it might, for it is a positive Law: As if a Woman bring an Appeal of Murder upon the death of her Brother, and the Defendant doth admit it without Challenge or Exception, yet the Court shall abate the Appeal, 10 E. 4. 7. And Vide the principal Case there, Non ideo puniatur Dominus: And if an Action be brought against an Ostler upon the common Custom of the Realm, and in the Writ he is not named (Common Hostler) and the Defendant doth accept of such a Writ without any Exception unto it, yet the Court shall abate the Writ ex Officio, Vide 38 H. 6. 30. CCCXXIX. Mich. 21 Eliz. In the King's Bench. NOte this Case: A. makes a Feoffment in Fee to B. and binds himself only to warranty, without more: B. is impleaded, and voucheth A. who enters into the Warranty, and loseth, so as judgement is given against B. and also to recover in value against A. who before Execution dyeth: It was the opinion of the Court, that B. should have Execution in value against the Heir of A. CCCXXX. Mich. 21 Eliz. In the Common Pleas. A. Seized of Lands in the right of his Wife for the term of the life of the Wife, made a Feoffment in Fee to the use of his said Wife for her life: In that case the wife is remitted, and it is not like Townsends Case, Ploughed Com. 111. for in that case the Entry of the Wife was not congeable, for she was Tenant in tail, which Estate was discontinued by the Feoffment of her Husband. Periam justice cited Si●enhams case. Baron seized in the right of his Wife for the term of the life of the Wife. They both surrendered, and took back the Land to them and a third person: And it was holden that the Wife was not presently remitted; but after the death of her Husband she might disagree. CCCXXXI. Mich. 21 Eliz. In the Common Pleas. A. B. and C. three Brothers: A. hath issue and dyeth, the middle Brother Purchaseth Land, and deviseth the same to his Son in Tail, and if he die without Issue that the Land shall remain to the King, and Lineage of the Father, sc. of the middle Brother, and if the Son of the eldest Son or the youngest Brother should have the Land, was the Question; and it was the opinion of the Lord Dyer, That the Son of the eldest Brother should have it. CCCXXXII. Mich. 21 Eliz. In the Common Pleas. A Lease for life was made to B the Remainder to C. and D. in Tail: It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record, for they are Tenants in Common; but if the Remainder had been limited to them in Fee, so as they took jointly, it had been otherwise, for then by the disagreement of the one, the other shall take the whole Land. Mich. 32 Eliz. In the King's Bench. CCCXXXIII. Wait and Cooper's Case. IN Ejectione firmae between Waite and Cooper: It was found by Verdict, That Cranmer, late Archbishop of Canterbury, was seized of the Manor and Borough of Southwark in the right of his Bishopric, and that the Prior of Morton was seized of the House in which the Ejectment is supposed, and held the same of the said Archbishop as of his said Manor and Borough, after which, 30 H. 8. the said Archbishop gave to the King the said Manor and Borough, with confirmation of the Dean and Chapter; and that the same year the said Prior surrendered, by which the said King was seized, as well of the said Manor and Borough, as of the said House, and afterwards the King by his Letters Patents gave the said House, and other Lands in Middlesex and Essex to Curson and Pope in Fee, tenend in Libero Burgagio per fidelitatem tantum, & none in Capite, pro omnibus serviciis & demandis: And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London; Curson and Pope covey the said House to Welsh in Fee, who died without Heir: All the Question was, What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope. It was said, It could not be a Tenure in Burgages, because here is not any Rent reserved, which see by Littleton 162, 163, 164. And the Lord Anderson at the first very strongly insisted upon that. Another matter was, because here is reserved for all the Lands and Tenements but one Tenure; so that if the Court should adjudge the Tenure reserved to be Burgages, than Lands at the Common Law out of Boroughs should be holden in Burgages: Also a Tenure in Burgages cannot be created without these words, ut de Burgagio: And to that purpose Shute justice agreed, Vide Br. Tenors 94. Mich. 29 Eliz. In the King's Bench. CCCXXXIV. Fuller's Case. NOte, It is holden by the whole Court in Fuller's case, That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years, if he, his Wife, and four of his Children so long shall live, That this is not within the Statute of Usury: So if there had not been any Condition; but care is to be taken that there be no Communication of borrowing of any Money before. Trin. 30 Eliz. In the King's Bench. CCCXXXV. Goore and Winkfields Case. 3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield, the Obligation was written in this Form; Know all by these Presents, That I H. Winkfield am bound to William Goore in the Sum of, etc. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year, until the same be paid: To which the Defendant pleaded, That the Plaintiff had levied parcel of the said Sum, etc. and did not show how much, and therefore the pleading was holden not good. And it was clearly agreed by the whole Court, That the Plaintiff was at Liberty, either to bring his Action upon the said Obligation, or to levy the Debt according to the Clause aforesaid. Pasc. 26 Eliz. In the King's Bench. CCCXXXVI. Powley and Siers Case. POwley brought Debt against Sire Executor of the Will of one A. The Defendant demanded judgement of the Writ: For he said, That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor, so as the Writ ought to have been brought against the Defendant as Executor of an Executor, and not as immediate Executor of the said A. The Plaintiff replied, That the said B. before any probate of the Will, or any Administration, died, and so maintained his Writ, upon which the Defendant demurred. Wray was for the Writ, for although here be not any Probate of the Will of A. or any other Administration; yet when B. makes his Will, and the Defendant his Executor, it is an acceptation in Law of the Administration and Execution of the first Will. Gawdy and Ayliff justices, that the Writ was not good. Vide 23 Eliz. Dyer 372. Mich. 19 Eliz. In the King's Bench. CCCXXXVII. Tailor's Case. Tailor was Outlawed in Debt, where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent. It was holden that the Party should avoid the same by Plea: Then it was moved, If the Plea should be pleaded by Attorney, or in Person. To which it was said by the justices, That where matter in fact is pleaded in avoiding of an Outlawry, he ought to plead it in Person; but matter of Record by Attorney. And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain, 7 Eliz. and so it ought to be in the principal Case here. CCCXXXVIII. Mich. 18 Eliz. In the King's Bench. NOte, It was agreed for Law in the King's Bench, if Lessee for years grant all his Estate and Interest to A rendering rend by Indenture, and for default of payment a reentry. And the Grantor demandeth the rent, and A. demands an Acquittance, but the Lessee for years refuseth; in such case A. may refuse to pay such rent, for the rent is to be paid in this nature without an Acquittance; but contrary if Lessee for years had leased parcel of his Estate, rendering Rend with Clause of Reentry, etc. CCCXXXIX. Mich. 18 Eliz. In the King's Bench. THe King seized of a Manor to which an Advowson is appendent, a Stranger presented, and his Clerk in by 6 Months: It was holden, that in such case the Grantee may present, for the Advowson was always appendent, and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation, as in the case of a common person; for the King cannot be put out of possession. But the Patentee shall not have Quare Impedit of the first disturbance, for that presentment did not pass to him, being a thing in Action without mention thereof in his Grant. And if the Patentee brings a Quare Impedit of a second avoidance, he shall make his presentment by the presentment of the King, not making mention of the Usurpation: Yet if a Bishop present for Lops in the case of a common person, he ought to make mention of it; for that is a title to the Patron. CCCXL. Trin. 28 Eliz. In the King's Bench adjudged. NOte, In the Case of one Manning it was adjudged. That where an Infant Executor sold the Goods of his Testator for a lesser price than they were worth, and afterwards brought an Action of Detinue against the Vendee, upon that Detinue in retardatione executionis Testamenti, that the said Sale was good, and should bind the Executor notwithstanding his Nonage. 28 Eliz. In the Chancery. CCCXLI. The Lord Awdleys' Case. THe Lord Awdley, 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset, and afterwards by Indenture reciting the said Feoffment, and the date of it; and also that it was to the intent that his Feoffees should perform his Will as followeth in effect, viz. My Will is, That my said Feoffees shall stand seized to the use, that the said Hoddy shall receive of the profits of the Lands 100 l. which he had sent to the said Lord Awdley; and also stand seized to pay all his debts upon Bills signed with his hand; and after the debts paid, that the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Joan his Wife, and to the Heirs of their two Bodies, with divers Remainders over. The said Lord had Issue by the said Joan, and also had Issue by a former Wife a daughter, the Feoffees never made any Estate to the said Lord and his Wife: And by the Opinion of divers justices and Sages of the Laws, that upon that matter no use was changed; for it is not any last Will, but an Intent. And although that the Feoffees shall be seized to the use of the Feoffor and his Heirs, because that no consideration was, by which they should be seized to their own uses, yet the same cannot make any Use unto the said Lord and his Wife in tail without containing an Estate, for the Wife is a Stranger to the Land: And also it cannot be a Will, for the Estate mentioned in the said writing, aught to have been made to the said Lord and his Wife, who cannot take the same by his Will. This matter depended in the Chancery: And the advice of the justices being there required, they delivered their Opinions, That by the said Writing no Use was changed nor any Estate vested in the said Lord and his Wife: And a Decree was there made accordingly, until proof be made that such an Estate was made. CCCXLII. Mich. 26 Eliz. In the King's Bench. THe Case was in the King's Bench, in Debt: It was found by Special Verdict, That the Testator, being possessed of divers Goods in London, where he died; and also at the time of his death, the Queen being indebted unto him in the Sum of 4 l. 10 s. she then residing at Whitehall; the Archbishop as Metropolitan, granted licence of Administration to the Queen; and the Bishop of London afterwards granted licence of Administration to J.S. The Court sent to the Civilians to appear in Court, and to deliver their Opinions in this case. And thereupon Lloyd, Doctor of Law, appeared and argued to this effect, viz. That in ancient times in such cases, the several Ordinaries committed several Administrations for the Goods in their Diocese respecive: In which case, the mischief was very great, for the Creditor was driven to bring several Actions of the Administrators of the several Ordinaries: Vide H. 7. 13 R. 2. Administrators 21. But afterwards upon a Decree, upon a Composition in such cases, the Metropolitan committed the Administration: He further argued, That debts cannot be said Bona Notabilia, for they cannot be said within or without any County or Diocese, and are things transitory, and therefore called aes alienum: And he said, That the Administration granted by the Archbishop was void, for as Archbishop he had not to intermeddle within the Diocese of another, but as Legatus Papae: And in the time of Hen. 2. Becket Archbishop of Canterbury was styled Legatus Natus, but now that power Legantine is determined, and therefore the authority to commit Licences of Administration in another Diocese, but in case of Bona Notabilia is determined: And he said, That by the Civil Law, Jones Rep. 225. if a man deviseth all his Goods in such a County, by that debts do not pass; and yet by especial words a man may devise his debts. Awbrey Doctor argued to the contrary; and he confessed that in ancient times every Ordinary in such cases committed licences of Administration: But he denied that the Prerogative which is now practised in such cases by the Metropolitan was given upon any Composition, but that it began by Prescription: If a man in his journey died in another Diocese, notwithstanding that he had out with him but his necessary and ordinary Apparel, in such case the Metropolitan committed the Administration; and he said, That as he conceived, debts are Bona Notabilia, & secundum fictionem Legis, they are local and he said, to make Bona Notabilia it is sufficient if the Intestate have 3 l. in one Diocese, and 2 l. in another Diocese: But he said, That posito, that Bona Notabilia are not in the case; yet the Administration granted by the Metropolitan is not void until it be revoked: For although that the Metropolitan on the right of his Bishopric, hath not to intermeddle in another Diocese; yet in this case, because the Archbishop of Canterbury is a Patriarch: (For in Christendom there are four great Patriarches, and eight lesser Patriarches, whereof the Archbishop of Canterbury is one,) and by reason thereof, he hath general jurisdiction through all England, Ireland, etc. But now by the Statute, his Authority is restrained. For he cannot cite any other out of other Diocese by any Process: But notwithstanding, he may do many great Acts by himself, or his Chancellor in every Diocese; and he argued very much upon the Prerogative of the Archbishop of Canterbury. The justices did not then deliver any Opinion in this case. Quaere, If Letters of Administration of the Goods of a common person be committed to the Queen, if good. The case was adjourned. Vide Cook 5 part, Ucre and Jeffreys Case, and Cook 8 part, in Sir John needham's Case for the Resolution of this Case. CCCXLIII. Pasc. 17 Eliz. In the Common Pleas. A Man made a Lease for life, and afterwards made a Lease to another for years. The Ordinary committed Licences of Administration to A. the Tenant for life, and A. joined in the purchase of the Fee-simple of the Land demised. It was holden by the justices, that the Fee was executed for a Moiety; for the Remainder for years was not any impediment unto the Execution thereof. Manwood conceived that the Term was not extinct; for it is not properly a term, but as an interest of a term, which cannot be surrendered. Mounson, He hath the term in altar Droit, viz. as Administrator, therefore it cannot be extinct. Dyer, If an Executor hath a term, and purchaseth the Fee-simple, the term is determined. A Woman, Tenant for years, taketh a Husband, who purchaseth the Fee, the term there is extinct. Manwood, True there, for the Husband doth an act which destroyeth the term, viz the purchase: But if a Woman, being a termor, marrieth with him in the reversion, the term continueth; for here is no act of the husband, but the act of the Law. Dyer was of Opinion, That the Tenant for life, and the Administrator should be Tenants in Common of the Fee. The Case was adjourned. CCCXLIV. Mich. 20 Eliz. In the Common Pleas. THe Case was, The Husband is seized in the right of his Wife, of certain customary Lands in Fee. He and his Wife by Licence of the Lord makes a Lease for years by Indenture rendering rend, have Issue two Daughters, the Husband dyeth, the Wife takes another Husband, and they have Issue a Son and a Daughter, the Husband and Wife die, the Son is admitted to the reversion, and dies without Issue: And by Manwood, the said reversion shall descend to all the Daughters, notwithstanding the half blood; for the Estate for years, which is by Indenture, by licence of the Lord, is a Demise or Lease according to the order of the Common Law and according to the nature of the Demise, the possession shall be adjudged, which possession cannot be said the possession of the Copyholder, for his possession is customary, and the other is contrary; and therefore the possession of the one, shall not be the possession of the other, and so no Possessio Fratris in this case: But if there had been a Guardian by the custom, or this Lease had been made by surrender, than the Sister of the half blood should not inherit: And by Mead, the case of the Guardian hath been so adjudged. Mounson to the same intent. And if a Copyhold descend to the Son, he is not a Copyholder before admittance, but he may take the profits of the Lands, and punish a Trespasser. CCCXLU. Mich. 15 Eliz. In the Common Pleas. THe Case was, A man seized of Lands in Fee, devised that his Wife should take the profits of his Lands until Mary his Daughter and Heir should come to the age of 16 years, and if the said Mary shall die, that J. S. should be his Heir. Manwood, The Daughter, after she hath attained the age of 16 years, shall have the Land in tail; for Devises ought to be construed according to the intent of the Devisor, as near as it may be collected, but no intent shall be taken against all reason and certainty. It is certain that the Daughter shall not have the Fee-simple, for the same should have descended to her without any Devise; and these words (if she died) cannot be intended a Condition, for it is certain that she shall die: But if the words had been, before the age of 16 years, That after her death J. S. should be his Heir, in such case it had been a Condition. And when it is said, That J. S. should be his Heir, it shall be intended his Collateral Heir, so as the Estate tail remains in the Daughter. Mounson and Harper contrary. And that she should have but for life: And by Mounson, if J. S. had been a Stranger to the Devisee, she should take nothing. And this case was put by Barham, Serjeant, A man devised 100 l. to his youngest daughter, 100 l. to his middle daughter, and 100 l. to his eldest daughter, and that all these Sums should be levied out of the profits of his Lands: And it was the better Opinion of the Court, that the youngest daughter should be first paid, and then the middle, and then the eldest daughter, and that was one Coniers Case. Mich. 16 Eliz. In the Common Pleas. CCCXLVI. The Archbishop of Yorks Case. 3 Leon. 159. THe Case was, The King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon; and afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through the whole Realm; and afterward the Archbishop exchanged his Manor of Rippon with the King for another Manor: It was moved if now the Citizens of York should be discharged of Toll, for the Grant to the Archbishop was eigne to the Grant to the Citizens of York, to be discharged of Toll in Rippon. Dyer conceived that they should not be discharged, for the King had no right; and when the King grants over the Manor of Rippon, the Grantee shall have the Toll notwithstanding the Grant made to the Citizens, for the Grant made to them was void, as to discharge them of Toll at Rippon; for the Grant to the Citizens shall not take effect after the Exchange, for the Grant was void ab initio: But if the Grant of the King to the Archbishop had been but for life, than the Grant afterwards made to the Citizens should have taken effect after the Estate for life determined: And the better Opinion of the Court was, that Toll should be paid. Mich. 29 Eliz. In the Exchequer. CCCXLVII. The Bishop of London's Case. THe Case was, The King Lord, Mesne and Tenant, the Mesnalty is holden in Chief, and the Tenancy by Service, the Mesnalty Escheats by Attainder, now if the Tenancy shall be holden in Chief. Manwood, It hath been holden, that no Tenure in Capite may be, if not by the making of the King: And he said, That if before the Statute of West. 3. the Tenant of the King had made a Feoffment to hold of him, so that now there is Lord, Mesne, and Tenant, and afterwards the Mesnalty comes to the King by Attainder, and if by the said Mesnalty to the Crown, the Seignory paramount be extinct, than the Tenancy is not holden in Chief; but if the Mesnalty be drowned in the signory, it is otherwise. Some held, That there was a difference where the Mesnalty comes to the Seignory, and where the Seignory comes to the Mesnalty. Quaere. Trin. 26 Eliz. In the King's Bench. CCCXLVIII. Burgess and Foster's Case. IN Ejectione firmae the Case was, That the Dean and Chapter of Ely were seized of the Manor of Sutton, whereof the place etc. is parcel demised and dimisable by Copy according to the custom: And that the said Dean and Chapter by their Deed granted the Stewardship of the said Manor to one adam's, to execute the said Office per se vel legitimum suum deputat' eye acceptabilem: After which the said adam's made a Letter of Deputation to one Mariot ad Capiend' unam sursam redditionem of one John Whettesley and Ann his Wife, & examinand' Ann' praedict. ea intention, That the said John and Ann should take back an Estate thereof for their lives, the Remainder to one John Buck in Fee. (Note the Surrender ought to be de duobus Messuagiis) Mariot, Two several Surrenders of the said Husband and Wife of the said two Messages, and took an Estate for their lives, the Remainder over to the said John Buck in Fee, upon condition to pay certain Moneys, etc. It was moved, That the Surrender is void, and without warrant; for the Warrant was add Capiend' unam sursam redditionem, and here are two several Surrenders, and so the Warrant is not pursued and then the Surrender is void. Another matter was, because the Remainder to John Buck by the words of the Letter of Deputation should be absolute, and without condition, and now in the Execution of it is conditional, so as the conditional Estate is not warranted by the Deputation. But the Court was clear of Opinion to the contrary in both the points, That the proceed here are sufficient, and well warranted by the Deputation. Another matter was objected, because the Surrender and Regrant is entered into the Roll of a Court dated to be holden 2 Maij, and the Letter of Deputation bears date the 3 of June after; but as to that the Court was clear, That the Mis-entry of the Date of the Court should not prejudice the party, for that Entry is not any matter of Record, but only an Escroll; and if the parties had been at Issue upon the time of the Surrender made, or of the Court holden, the same should not be tried by the Rolls of the Manor, but by the Country: And the party shall give in Evidence to the truth of the matter, and shall not be bound by the Rolls; and according to this Resolution judgement was given. Trin. 31 Eliz. In the Common Pleas. CCCXLIX. Long and Hemmings Case. GIles Long brought a Quare Impedit against the Bishop of Gloucester, Hemmings and Hadnell, Hemmings pleaded, That one Tho. Long seized of the Manor of F. to which the Advowson was appendent, by his Deed granted the Advowson unto him 17 Eliz. The Incumbent pleaded the same Plea; to which the Plaintiff Replicando said, That before the said Grant, viz. 6 Eliz. the said Tho. Long granted to him the said Manor, etc. and upon Issue joined, the jury found this Special Matter, That the said Feoffment was by word, and Livery and Seisin was made; and afterwards the said Tho. Long granted the said Advowson to the Defendant; and afterwards Attornment was had; and if without Attornment the Advowson passed with the Manor, was the Question. Shuttleworth argued, That the Advowson passed as appendent to the Demesns, for an Advowson shall be more properly appendent to the Demesns than to the Services, for the Services may be determined many ways, so cannot the Demesns; for if the Services be determined by Escheat, etc. yet the Advowson remains appendent to the Demesns, and an Advowson may be appendent to an acre parcel of the Manor, but not to the Services; and so an Advowson may well pass without Deed, as upon a Feoffment of a Manor the Services pass without Deed. And if a man seized of a Manor with an advowson appendent, makes a Feoffment of one acre parcel thereof, with the advowson, the advowson is appendent to that acre, 33 H. 6. 5. although it be not by Deed. Vide contra Temps E. 1. Faits & Feoffments 115. 17 E 3. 4. It ought to be by Deed, 43 E. 3. 24. Walmsley argued to the contrary. The Verdict is, That Tho. Long give not the Manor but the Capital Message of F. and all other Lands and Tenements of the same, which words (of the same) have relation to the Message, and therefore neither the Manor of F. nor the advowson pass: and admit that all the Demesns pass, yet the advowson cannot pass as appendent, for that advowson shall pass as appendent to the whole Manor, and not to such, or such part of it. And by Littleton, 7 E. 4. 27. if a man holds of me three acres by 12 d. and I grant the Services of the third acre, the same is void; so here, there is no advowson appendent to the Demesns: And he said, That in this case the advowson is appendent to the Services; and although Services are Inheritances incorporeal, yet an advowson may be appendent to them, as one Office may be appendent to another Office, and one advowson to another advowson, 33 H. 8. Dyer 48. A Man seized of a Manor, to which an Advowson is appendent, enfeoffeth one by Deed of one acre, parcel thereof; and also by the same Deed grants the Advowson the Advowson shall pass as in gross, for they are several Grants although but one Deed. Another matter was, That Thomas Long enfeoffed and here the jury have found, that Thomas Long gave in tail, etc. And he conceived that the Plaintiff upon that Verdict should have judgement: As in Waste, the Plaintiff assigns the Waste in cutting down of 20 Oaks, and upon Not Guilty, It was found that he cut down but 10, the Plaintiff shall have judgement upon that Verdict. The Case was adjourned. CCCL. Trin. 19 Eliz. In the King's Bench. THe case was, Lessee for life of another bargains and sells by Deed indented and enroled, and afterwards levies a Fine to the Conusee, Sur Conusans de droit come ceo, &c It was holden by the whole Court, That it was a forfeiture of his Estate; for when the Bargainee, being now Tenant for the life of another, accepts a Fine of a Stranger sur Conusans de droit, etc. that he admit the Fee in him by matter of Record, otherwise it is of a Fine sur Release. And by Manwood, If Lessee for life be disseised and levies a Fine to the Disseisor, sur Conusans de droit, &c the Lessor shall re-enter. Quod Dyer negavit, Because that the Lessor at the time of the Fine levied, had not any thing in the Reversion, but only a Right. Manwood put this Case, Land is given to A. and B. and to the Heirs of B. they are disseized by two, A releaseth to one of the Disseisors, now they are joint-tenants but for a moiety, and the Estate in the other moiety is changed into an Estate for life. Trin. 31 Eliz. In the Common Pleas. CCCLI. The Queen and the Bishop of Norwich's Case. IN a Quare Impedit, the case was, That the title to present to the Church was devolved to the Queen by Lapse; The Patron himself presented, and his Clerk was inducted, and afterwards deprived. It was the Opinion of the whole Court, That if the Deprivation was without any covin, that the title of the Queen by Lapse was gone. Trin. 29 Eliz. In the Common Pleas. CCCLII Ashpool and the Inhabitants of Everinghams' Case. IN an Action upon the Statute of Winchester of Hue and Cry, by Ashpool against the Inhabitants of the Hundred of Everingham: It was argued by Sergeant Shuttleworth for the Hundred, and he insisted upon this, That the Robbery for which the Suit was brought, was committed in the night: and Vide Stamford 33 & 38. If a man be rob in the day, and the Chief escape, and be not taken, the Town or Hundred shall answer for it: as if he should have said, If the Robbery was not done in the day, the Town or Hundred should not answer for it: and by 11 H. 7 5. the Lord cannot distrain in the Night for Rend arrear, for the Tenant is not bound to tender his rent in the night time. And although there are no express words in the Statute of Winchester, that Hue and Cry shall be made by the party rob, yet in reason it is to be presumed that the same was intended by the Statute. Vide that by these words in the Statute it may be employed, viz. That no pain as yet hath been appointed for their Concealments and Lachess, which (Lachess) imports, That none ought to be charged in such case, but here there was a default, and no default can be where there was not notice, and all the course is, Hutesiam & clamorem fecit, & notitiam inhabitantibus dedit; and also this word (Concealment) amounts to as much, for none can be said to conceal that whereof he had no notice. And vide Stamford 35, 36. if the Felon escape the Hundred shall answer to the party rob, who hath made Hue and Cry: But the whole Court was clear, that Hue and Cry, or Notice to the Inhabitants, was not requisite by the Statute; for as it was said by the Lord Anderson, it might be that the party rob was bound, so as he could not give notice, or make Hue and Cry, or it may be he was killed by the Thiefs; and b. 28 E. 3. 11. Fresh suit is to be made from Town to Town, and from Country to Country, and that Fresh suit is to be made by the Inhabitants of the Hundred, and not by the party rob, for no mention is made of such Fresh suit: And that will more clearly appear, if we take to the Common Law before the Statute of Winchester; for before the said Statute, the Law was, That every Town and City should be guarded by the Inhabitants, etc. so that if any suspected persons did resort to such Town or City, he should be stayed until the next Sessions; in which Case he should have deliverance according as he could acquit himself: And if any Town or City failed therein, and then a Robbery had been done, the County should answer for it; for at their own peril they were bound to guard the Country: But there was some difference betwixt Robberies committed in the day time, and Robberies done in the night, which see 3 E. 3. so Corone 293. Where a man killed another in the day, and the Felon was not taken, but escaped in the night, and the Town was amerced for the same, because there the Adventurers came in the day time, and the Felon was not taken. And as to that which is found by the Verdict, That the Robbery was done post occasum solis, & per lucem diurnam, the Opinion of all the justices was, That with such a Robbery the Hundred should be charged, for that at such time of the day Travellers are commonly drawing to their Lodgings. And afterwards judgement was given for the Plaintiff. Pasc. 29 Eliz. In the King's Bench. CCCLIII. Neals Case. IN a false Imprisonment by Neal against the Mayor, Sheriffs, and Commonalty of the City of Norwich: The Writ was directed to the Coroners of the said City: and Exception was taken to the Writ, because it was not directed to the Sheriff of the same City, but to the Coroners: But the Exception was disallowed by the Court, for the Sheriff was part of the Corporation. And also it hath been adjudged, That a Sheriff cannot summon himself: The Writ was holden good. CCCLIU JOhn Grendon brought Trespass for breaking of his Close against Thomas Albany: and upon the pleading, the Case was, That Francis Bunney was seized, and 1 Maij 20 Eliz. by Deed indented enfeoffed M. H. to the use of the said Francis Bunney for the term of his life, the remainder to D. in tail, the remainder to E. in tail, the remainder over to F. in Fee: In which Deed of Feoffment there was a Proviso, That if it should happen one P. P. to die without Issue Male of his Body, that then it should be lawful for the said Francis Bunney at all times, during his life, by his Deed indented, to be sealed and delivered in the presence of three credible Witnesses, to alter, change, diminish or amplify any Use or Uses limited by the said Deed or any Use or Uses thereof to any person or persons, and to limit after the death of the said Francis to begin: After which the said Francis Bunney 1 Aprilis, 23 Eliz. by his Deed indented, did renounce, relinquish, and surrender to the said M. H. D. E. & F. all such liberty, power, and authority of revocation, which he had after the death of the said P. P. without Issue, etc. and further did remise, release, and quit-claim to them the said Condition, Promise, Covenant, and Agreement aforesaid and all his said Power, Liberty, and Authority, and further granted to them and their Heirs, that at all times then after, the said power, liberty, and authority should cease, and to all intents and purposes should be void. After which P. P. died without Issue, Note that in this Case Francis Bunney being but Tenant for life, enfeoffed one T. upon whom the said D. entered for a Forfeiture, 1 Maij 23 Eliz. after which 20 Maij 24 Eliz. the said Francis Bunney by Indenture between him and the said D. sealed and delivered as abovesaid, altered the former Uses, and covenanted and agreed with the said D. that from thenceforth the said M. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs. It was argued by Altham. That by that Feoffment made by the said Francis Bunney to the said F. the liberty and power aforesaid was not extinct or lost, for the liberty and power was not then a thing in esse, because then P. P. was alive; and also the liberty is collateral to the Land whereof the Feoffment is made. 39 H. 6. 43. The Son and Heir apparent disseiseth his Father, and hereof enfeoffeth a Stranger, the Father dyeth, now against his own Livery the Son doth not enter; but if the Father dyeth, than the Son shall enter; which proveth that the Livery is not so violent as to destroy a future Right, but that afterwards it may be well revived à fortiori, in our case where the thing pretended to be extinct is merely collateral. 34 E. 3. Fitz. Garr. 69. In Assize of Common, the Release of the Father with Warranty of the Land, is no bar because it is of another thing. 15 H. 7. 11. Cestuy que Use declares by his Will, That his Feoffees shall sell his Lands, and dyeth, the Feoffees make a Feoffment to the same use, yet they may sell, so as against their Livery, the Authority to sell remains to them. And he cited brent's case, Dyer 340. where a future Use is limited to his Wife that shall be, shall not be prevented by a Fine or Feoffment. And vide the Statute of Fraudulent Conveyances 27 Eliz. where a Conveyance is made with Clause of Revocation if afterwards the party makes such a Conveyance, bargain, sell, or grant the said Lands for money or other good consideration paid or given, (the first Conveyance not being revoked) that then such former Conveyance against the last Purchasers, shall be void. Another matter was, admitting that the said Power and Liberty be not extinct by the said Feoffment, If by the said Indenture or Renunciation, Relinquishment, Release, etc. it be destroyed: And he said, that a thing in esse could not be released. Litt. 105. & 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before that it come in esse. 11 H. 6. 29. Br. Damages 138. In Detinue, The Defendant would have confessed the Action, if the Plaintiff would have released the Damages, and the Plaintiff would have so done, but could not before judgement; for before judgement the Plaintiff had not interest in the damages, but he was entitled to them by the judgement; so Lands in ancient Demesne are recovered at the Common Law, and Execution had accordingly, and afterwards the Lord reverseth the judgement, the Tenant notwithstanding that Release may enter, for his title which accrued to him by the reversal, was not in esse at the time of the Release. And it was adjudged 23 Eliz. that where Lessee for years devised his term to his Wife, if she should so long live, and if she died within the said term, that then the residue of his term should go unto his daughter, who then should be unpreferred, and died, the daughter released to her mother all her right in the said Land, the mother died within the term, That that Release did not bind the daughter, for that at the time of the Release she had not any title. Cook contrary: And he said. That by the Feoffment the said power and title was extinct; and he well agreed the case cited before of 15 H. 7. for in such case the Vendee of the Feoffees shall be in by the Devise, and not by the Feoffees. 9 H. 7.1. The husband makes a discontinuance of the Land of his wife, and takes back an Estate to him and his wife, by which his wife is remitted, they have Issue, the wife dyeth, the husband shall not be Tenant by the Courtesy, for he hath extinguished his future right by the Livery. 12 Ass. ultimo. A Praecipe brought against A. who loseth the Land by erroneous judgement, and after Execution had, enters upon the demandant, and makes a Feoffment, his Writ of Error is gone. 38 E. 3.16. In a Scire Facias to execute a Fine, the Plaintiff recovers, and makes a Feoffment in Fee, and afterwards the Tenant in the Scire Facias by Writ of Error, reverseth the judgement in the Scire Facias, Now the Plaintiff in the Scire Facias shall not have a new Scire Facias. 34 H. 6.44. A Recovery against B. by false Oath and after Execution had, B. enters, and makes a Feoffment to a Stranger, who enfeoffs him who recovers, it is a good bar in an Attaint. 27 H. 8.29. The Feoffees to an Use are disseised, the Disseisor enfeoffeth Cestuy que Use, who enfeoffs a Stranger now by that Feoffment his right to the Use is extinct: And as to the Release, the same is not properly a Release, but rather a Defeasance to determine the power and authority aforesaid, as if A. enfeoffeth B. with warranty, and afterwards B. covenants with A, that the said Warranty shall be void, that Covenant shall enure, to defeat and determine the Warranty: And afterwards in the principal Case, judgement was given against the Plaintiff. See more of this Case in Cook 1. part. Trin. 29 Eliz. In the King's Bench. CCCLU. Owen and Morgan's Case. Ante 26. & 93. GEorge Owen brought a Scire Facias against Morgan, to have Execution of a Fine levied 8 Eliz. by which Fine the Land was given to the Conusee and his Heirs, and the Conusee rendered the same to Husband and Wife, (Note that the Husband was the Conusor,) the remainder in Fee to the now demandant; (and Note that the Writ of Covenant was between the Conusee Plaintiff, and the Husband Deforceant, without naming of the Wife) and afterwards, the Husband suffered a common Recovery, without naming of the Wife: The Husband and Wife dies without Issue, and now Owen, to whom the remainder in Fee was limited by the Fine, brought the Scire Facias, in bar of which the Recovery was pleaded: It was argued by Sergeant Shuttleworth, That the Recovery had against the Husband only, was a good bar, and should bind the remainder; and he said, That the Wife ought not to be named in, or party to the Recovery for nothing accrued to her by the Fine, because she was not party to the Writ of Covenant, nor party to the Conusance and none can take by the render, who was not party to the Writ of Covenant, and to the Conusance. Vide 30 H. 8. Fines 108. None can take the first Estate by the Fine, but those who are named in the Writ of Covenant, etc. but every Stranger may take by Remainder. Vide 3 E. 3. Er. Fines 114. 6 E. 2. Fines 117. 7 E. 3. Scire Facias 136. It is said by Horton, If such a Fine is accepted, it is good. The Case was adjourned. CCCLVI A. Seized of a Manor, to which two parts of the Advowson were appendent presents, and afterwards aliens the Manor with the appurtenances the Alienee presents, and purchaseth the third part of the Advowson, and presents again one A. who was Chaplain to the Duke of Rutland, and had a Dispensation from the Pope 1 Eliz. before the Statute was repealed, and was instituted and inducted, and afterwards accepted of a plurality, viz. another Benefice, and died 11 Eliz. The Queen presented for Lapse, and her Clerk was instituted and inducted; The said Lord of the Manor died seized inter alia, and that Manor was allotted to the Wife of D. for her part; and he brought a Quare Impedit, It was moved if D. should not join in the Quare Impedit with him who had the third part, and by Walmsley he is not to join in it. 22 E. 4. by Brian, If an Advowson descends to four Coparceners, and they make partition to present by turns, and the third doth present when the second ought, for that time the presentment is gone, but when it comes to his turn again, he shall present; which proves that they are as several Tenants, and therefore ought not to join, etc. It was Adjourned. Temps Roign Eliz. In the King's Bench. CCCLVII. The Precedent of Corpus Christi College Case. NOte, It was holden by Cholmley Sergeant, Plowden, and many others, in the Case of the Precedent of Corpus Christi College in Oxford, That if the said Master or Precedent of any such College, by his Will deviseth any Land to his College, and dyeth, such Devise is void: For at the time when the Devise should take effect, the College is without a Head, and so not capable of such Devise; for it was then an imperfect Body: And so it was holden by the justices upon good advice taken thereof. CCCLVIII. Temps Roign Eliz In the King's Bench. IN a Warrantia Chartae, the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought: If in a Praecipe quod reddat the Tenant aliens, and afterwards vouches, the Vouchee is not bound to enter into the Warranty: But here in this Case it may be, That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land, in which Case the warranty is attached, and then if ever the Land be recovered against him, he shall have this Writ; and of this Opinion was Brown justice: For the Land which the Defendant had at the time of the request, is bound by the request, but if he alieneth after the request, he shall not have the Warranty. CCCLIX. Mich. 9 Eliz. In the King's Bench. A Man seized of a Manor, in which there are divers Copy-holds, and the Custom there is, That if any Copyholder leaseth his Land above the term of one year, that he shall forfeit his Copyhold. A Copyholder committed such a Forfeiture, and afterwards the Lord leased the Manor for years, and the Lessee entered for the Forfeiture; and Weston said that his Entry was not lawful; for although that the Heir may enter for a Condition broken in the time of his Ancestor, because he is privy in blood; yet the Lessee or Feoffee cannot do so, for he is a Stranger, such a one of whom an Estranger shall not take advantage. Dyer, If this forfeiture be preserved by Homage, and enroled in the Court Rolls, the Lessee may well afterwards enter; for by the forfeiture the Copyhold Estate is void and determined, as if a Leaf for years be made, rendering Rend upon Condition to cease if the Rent be not paid, here presently, by the not payment, the Interest of the term is determined, and of that the Grantee of the Reversion shall have advantage. CCCLX. Mich. 10 Eliz. In the Common Pleas. AN Action upon the Case was brought for stopping of a way: The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life, and that the said Duke, and all those whose Estate, etc. have used time out of mind, etc. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House, from the said Park to the same House; and further declared, That the Defendant Obstupavit the way. It was moved by Carus, That upon that matter no Action upon the Case lay, because the Freehold of the House is in the Plaintiff, and also the Freehold of the Land, over which, etc. is in the Defendant: But if the Plaintiff, or the Defendant, had but an Estate for years, than an Action upon the Case would lie, and not an Assize, and it is not material, If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam: It was also holden. That this word Obstupavit is sufficient without any more, without showing any special matter of the stopping, as the erecting of any Gate, Hedge, Ditch, etc. for Obstupavit implies a Nuisance continued, and not a personal disturbance, as forestall, or saying to the Plaintiff upon the Land where, etc. that he should not go over, or use the said way, for in such case, upon such a disturbance, an Action upon the Case lieth: But as to a local and real disturbance, the word Obstupavit amounts to Obstruxit: and although in the Declaration is set down the day and year of the stopping, yet it shall not be intended that it continued but the same day; for the words of the Declaration are further, By which he was disturbed of his way, and yet is, and so the continuance of the disturbance is alleged, and of that Opinion was the whole Court. Leonard Prothonotary, He hath declared of a Prescription, habere viam tam pedestrem, quam equestrem, pro omnibus & omnimodis Carriagiis, and upon that Prescription he cannot have a Cart-way, for every Prescription est stricti juris. Dyer, That is well observed, and I confess that the Law is so; and therefore it is good to prescribe habere viam pro omnibus Carriagiis, without speaking either of a Horse, or a Footway. CCCLXI A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it. A. sold it to C. to whom B. refused to convey the Land; and thereupon he brought an Action upon the Case against B. And by Wray Chief justice, and Gaudy justice, here is a good consideration, for here is a trust, and that which is a good consideration in the Chancery, is in this case sufficient. Shute justice was of a contrary Opinion. And afterwards judgement was given for the Plaintiff. Mich. 29 Eliz. In the Common Pleas. CCCLXII. Sir Richard Lewknors Case. SIr Richard Lewknor seized of Wallingford Park, Ante 162. made a lease thereof for years, and died; the Lessee granted over his term to another, excepting the Wood; the term expired, and an Action of Waste was brought against the second Lessee by the Coparceners, and the Husband of the third Coparcener, being Tenant by the Courtesy. Shuttlewood and Snag Sergeants, did argue, That the Action would not lie in the form it was brought; and the first Exception which was taken by them was, because the Action was general, viz. Quod fecit vastum in terris, quas Sir Roger Lewknor, pater praedict' of the Plaintiff cujus haeredes ipsae sunt praefat' Defendant. demisit; And the Count was, that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor, and so they conceived that the Writ ought to have been special, cujus haeredes de Corpore, ipsae sunt: For they said, that although there is not any such Writ in the Register, yet in novo Casu, novum est apponendum remedium: And therefore they compared the Case to the Case in Fitz. N. B. 57 viz. If Land be given to Husband and Wife, and to the Heirs of the Body of the Wife, and the Wife hath Issue and dyeth, and the Husband committeth waste, the Writ in that case, and the like, shall be special, and shall make special recital of the Estate. And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease, and the Lessee commits waste; there the Action was brought by the Feoffees, containing the special matter, and it was good, although there was not any such Writ in the Register cujus haeredes de Corpore, and we are not to devise a new form in such case, but it is sufficient to show the special matter to the Court. And the words of the Writ are true, for they are Heirs to Sir Roger Lewknor; and the Count is sufficient, pursuant and agreeing to their Writ; for they are Heirs, although they are not special Heirs of the Body, and so the Court was of Opinion, that the Writ was good notwithstanding that Exception. And Anderson and Periam justices, said. That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57 for there he cannot show by whose demise the Tenant holdeth if he doth not show the special Conveyance, viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife. Nor is it like to the Case of 26 H. 8. for the same cause. For always the demise of the Tenant ought to be specially showed, and certainly which it cannot be in these two Cases, but by the disclosing of the title also to the reversion. Another Exception was taken, because that the Writ doth suppose Quod tenuerunt, which, as they conceived, is to be meant, that tenuerunt jointly, whereas in truth they were Tenants in Common. Walmsley contrary, because there is not any other form of Writ, for there is not any Writ which doth contain two tenuerunts and the words of the Writ are true, quod tenuerunt, although tenuerunt in Common; but although they were not true, yet because there is no other form of Writ, it is good enough: as Littleton, If a Lease be made for half a year, and the Lessee doth Waste, yet the Writ shall suppose Quod tenuit ad terminum annorum, and the Count shall be special: 40 E. 3. 41 E. 3. 18. If the Lessee doth commit Waste and granteth over his term, the Writ shall be brought against the Grantor, and shall suppose, Quod tenet, and yet in truth, he doth not hold the Land, and the Writ shall not contain two Tenets, and such also was the Opinion of the Court. The third Exception was, because that the Writ was brought by the two Coparceners, and the Heir of the third Coparcener, without naming of Tenant by the Courtesy: And thereupon Snag cited the Case of 4 E. 3. That where a Lease is made for life, the Remainder for life, and the Tenant for life doth waste, he in the Reversion cannot have an Action of Waste during the life of him in the Remainder: So in the like case, the Heir of the third Coparcener cannot have waste, because there is a mean Estate for life in the Tenant by the Courtesy. And to prove that the Tenant by the Courtesy ought to join in the Writ, he cited the Case of 3 E. 3. which he had seen in the Book at large, where the Reversion of a Tenant in Dower was granted to the Husband, and to the Heirs of the Husband, and the Tenant in Dower did waste, and they did join in the Action of Waste, and holden good: And so is 17 E. 3. 37. & F. N. B. 59 & 22 H. 6. 25. Walmsley contrary; for here in our Case, there is nothing to be recovered by the Tenant by the Courtesy, for he cannot recover damages, because the disinherisin is not to him, and the term is expired and therefore no place wasted is to be recovered, and therefore it is not like to the Books which have been vouched, For in all those the Tenant was in possession and the place wasted was to be recovered, which ought to go to both, according to their Estates in Reversion, but so it is not here; for in as much as the term is expired, the Land is in the Tenant by Courtesy, and so he hath no cause to complain. And such also was the Opinion of the whole Court, that the Writ was good notwithstanding the said Exception. Then concerning the principal matter in Law, which was, whether the Writ was well brought against the second Lessee, or whether it ought to have been brought against the first Lessee: It was argued by Shuttleworth, That it ought to have been brought against the first Lessee; for when he granted over his term, excepting the Trees, the Exception was good, ergo, etc. For when the Land upon which the Trees are growing is leased out to another, the Trees pass with the Lease as well as the Land and the profit of them is in the Lessee during the term, and therefore when he grants his term, he may well except the Trees as well as the Lessor might have done. And that is proved by the Statute of Marlbridge, for before that Statute the Lessee was not punishable for cutting down the Trees, and that Statute doth not alter the property of the Trees, but only that the Lessee should render damages if he cut them down etc. Also the words of the Writ of Waste proveth the same, which are, viz. ●n terris, domibus, etc. sibi dimissis. And the Lessee might have cut them down for Reparation, and for Firewood, if there were not sufficient Underwood, which he could not have done, if the Trees had not been excepted: And in 23 H. 8. Br. it is holden, that the excepting of the Trees, is the excepting of the Soil. And so is 46 E. 3. ●. where one made a Lease excepting the Woods and afterwards the Lessee did cut them down, and the Lessor brought an Action of Trespass, Quare vi & armis clausum freg●, etc. and it was good, notwithstanding Exception was taken to it: And it is holden 12 E. 4. 8. by Fairfax & Littleton, That if the Lessee cut the Trees that the Lessor cannot carry them away, but he is put to his Action of Waste. Fenner and Walmsley Sergeants contrary: And they conceived that the Lessee hath but a special property in the Trees, viz. for Fire-boot, Plough-boot, House-boot etc. and if he pass over the Lands unto another, that he cannot reserve to himself that special property in the Trees, no more than he who hath Common appendent, can grant the principal, excepting and reserving the Common; or grant the Land excepting and reserving the Common; or grant the Land, excepting the Foldage. The grand property of the Trees doth remain in the Lessor, and it is proved by 10 H. 7. 30. & 27 H. 8. 13. If Tenant for life, and he in the Reversion join in a Leaf, and the Lessee doth Waste they shall join in an Action of Waste, and the Tenant for life shall recover the , and the first Lessor the damages, which proves that the property of the Trees is in him: As to that, that he was dispunishable at the common Law, that was the folly of the Lessor; and although it was so at the common Law, yet it is otherwise at this day; for when the Statute says, That the Lessor shall recover damages for the Waste, that the property of the Trees is in him. As the Statute of Merton. cap. 4. enacts, That if the Lessor do approve part of the Waste having sufficient for the Commoners, and they notwithstanding that bring an Assize, they shall be barred in that Case, and the Lord may have an Action of Trespass against them if they break the Hedges, by force of that Statute, as it hath been adjudged; for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners, and so in this case: But note, That by the Statute of Marlbridge, the Lessor shall recover damages for the Houses, etc. which are wasted etc. and yet a man cannot infer thereupon, that therefore the Lessee hath no interest nor property in them; and such interest hath he in the Trees notwithstanding the words of the Statute, which is contrary to the meaning, as it seems; and therefore Quaere, if there be any difference betwixt them and what shall be meant by this word (Property.) But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined. Anderson Chief justice, The Lessor hath no greater property in the Trees, than the Commoner hath in the Soil. Walmsley 2 H. 7. 14. & 10 H. 7. 2. The Lessor may give leave to the Lessee to cut the Trees, and the same shall be a good Plea in an Action of Waste, and the reason of both the Books is, because the property of them is in the Lessor. And to this purpose the difference is taken in 2 H. 7. betwixt Gravel and Trees. 42 E. 3. If a Prior licence the Lessee to cut Trees, the same shall discharge him in a Writ of Waste brought by the Successor; but if the Lessee cutteth down the Trees, and then the Prior doth release unto him, the same shall not bar the Successor, and so is 21 H. 6. And he cited Culpeppers Case 2 Eliz. and 44 E. 3. Statham, and 40 Ass. 22. to prove that the Lessor shall have the Windfalls. If a Stranger cutteth down Trees, and the Lessee bringeth an Action of Trespass, he shall recover but only to his loss, viz. for lopping and topping. As to that which was said, That if the Lessee cut down Trees, that the Lessor cannot take them away, that is true, for that there is a contract of the Law, that if the Leslee doth cut them down, that he shall have the Trees, and the Lessor have triple damages for them. Also he said, That the Trees are no part of the thing demised, but are as Servants, and shall be for Reparations. As if one hath a Piscary in the Land of another man, the Land adjoining is as it were a Servant, viz. to dry the Nets. So if one hath Conduit Pipes lying in the Land of another, he may dig the Land to mend the Pipes, and yet he hath no Interest nor Freehold. To that which was said, That by the excepting of the Trees upon the Land the Land upon which they stood is excepted; It is true, as a Servant to the Trees for their nourishment, but not otherwise: For if the Lessor selleth the Trees, he afterwards shall not meddle with the Land, but it will be wholly in the Lessor, quia ●u●●ata causa tollitur effectus; and if the Lessee tieth a Horse upon the Land where the Trees stood, the Lessor may distrain the same for his Rent, and avow as upon Land within his distress and fee, and holden of him: And he said that the Lessor might grant the Trees, but so cannot the Lessee; and therefore he said that the property is in the Lessor and not in the Lessee, and if the Lessor granteth them, they pass without Attornment, but contrary if the Lessor had but a Reversion in them; and if the Lessor cutteth them down, the Rent shall not be apportioned and therefore they are no part of the thing demised. For ● E. 7. & Temps E. 1. Fitz. Waste, in two or three places it is holden, That if the Waste be done Sparsim in a Close or Ground the Lessor shall recover the whole; then admit that the Trees are cut down, If the Exception shall be good how shall the thing wasted be recovered, and against whom: quod nota. Anderson Chief justice, did conceive that the Exception was void, and that the Action was well brought; and he said, It was a knavish and a foolish demise, and if it should be good, many mischiefs would follow, which he would not remember. Windham was of the same Opinion; and he said, That the Lessor might have accepted them, and so take from the Lessee his Fire-boot, Plough-boot, etc. which shall go with the Land. Periam justice agreed, That as to such a special property, none can have it but such a one who hath the Land, and therefore the Exception of the Wood by the Lessee was void: But as to the other things, perhaps if they were Appletrees, or other Fruit-trees, the Exception had been good: Also although the Trees were not let directly, yet they are after a sort, by a mean annexed to the Land. And if the Action were brought against him who made the Exception, he cannot plead that they were let unto him, and therefore he doubted of the Exception. Rhodes justice also said, That he doubted of the Exception; and he said, That the Book of 44 E. 3. is, that the Lessee should have the Windfalls; and did not much regard the Opinion of Statham. But Anderson was of Opinion that the Lessor should have the Windfalls. Note, The Case was not at this time adjudged, but adjourned, CCCLXIII. Hil. 29 Eliz. In the Common Pleas. A Copyholder with licence of the Lord made a Lease for years, and afterwards he surrendered the Reversion, with the Rent, to the use of a Stranger, who was admitted accordingly. It was moved, If here there needed any Attornment, either to settle the Reversion, or to create a Privity. It was the Opinion of Rhodes and Windham justices, That the Surrender and Admittance, (ut supra) are in the nature of an Attornment, or at the least do supply the want of it. Mich. 29 Eliz. In the Common Pleas. CCCLXIV. Bell and Langleys Case. IN Trespass, the Case was thus, That A. was Lord of a Manor, of which B. held Black Acre by Copy of Court-Roll in Fee according to the Custom: A. made a Feoffment of the said Black Acre to a Stranger; B. died. The point was, If now the customary interest be determined against the Heir of B. For it was moved because that the Feoffee had not any Court, the Heir of B. could not be admitted, nor the death of his Ancestor presented because but one Copyholder: But all the Court held the contrary, and that the Copy should bind the Feoffee, and the ceremony of admittance was not necessary; For otherwise every Copyholder in England might be defeated by the sole act of the Lord, viz. his Feoffment. But the Lord by his own act, which shall be accounted his folly, hath lost his advantages, viz. Fines, Heriots, and such other Casualties. Mich. 29 Eliz. In the Common Pleas. CCCLXV. Box and Mounslowes Case. THomas Box brought an Action upon the Case against John Mounslowe, That the Defendant slandered him, in saying, That the said Thomas Box is a perjured Knave, and that he would prove the said Thomas Box had forsworn himself in the Exchequer, etc. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit & defendit vim & injuriam quando, etc. Et dicit quod praedict' Tho. Box actionem suam versus eum habere non debet; quia dicit quod praedict' Thomas Box being one of the Collectors of the Subsidies, before the speaking of the said words, viz. 27 & 28 Eliz. in Curia Scaccarij apud Westm', did Exhibt a Bill against the said John Mounslowe, containing, That the said John being assessed in ten pounds in Goods, the said Thomas Box came to him, and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay; and that demand and refusal was supposed to be in London in Breadstreet; Et pro verificatione praemisiorum ad●unc & ibid' Sacramentum Corporale per Barones praefat' Thomae Boxe praestitit: The said Thomax Box swore the said Bill in substance was true, ubi revera, the said John Mounflowe did not refuse: per quod the said John Mounslowe, postea, viz. praedict. tempore quo, etc. dixit de praefat' Thoma Box praedict. verba, etc. p●out ei bene Leuit: The Plaintiff replied, that the Defendant spoke the words de injuria sua propria absque causa per praefat. Johannem Mounslowe superius allegata: Et hoc petit quod inquiratur per Curiam, & praedict. defendens similiter. And a Ven●re Facias was awarded to the Sheriffs of London, and it was found for the Plaintiff, and damages 400 l. And now it was moved in Arrest of judgement, that there was no good Trial, nor the Issue well joined▪ for the Issue doth consist upon 2 points triable in several Counties, viz the Oath which was in the Exchequer, and that ough to have been tried in Middlesex; and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy, and that was alleged to be in London, and is there to be tried; and the Issue, viz. de 〈…〉 propria goeth to both, for the ubi revera will not amend the Case, as Penam justice said; and both are material: For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true, for otherwise the Plaintiff cannot be proved perjured. And therefore the Counties here, (if they might) should have joined in the Trial: And the Opinion of the Court was against the Plaintiff; For Anderson and Wincham said, That if this Issue could have been tried by any one of the Counties without the other, it should most properly and naturally have been tried in Middlesex, where the Oath was made, for the Perjury, if any were was in the Exchequer: But they said. The Issue here was ill joined, because it did arise upon two points triable in several Counties, which could not join; whereas the Plaintiff might have taken Issue upon one of them well enough, for each of them did go to the whole, and if any of them were found for the Plaintiff, that he had sufficient cause to recover. Gawdy moved that it should be helped by the Statute of jeofails, which speaks of misjoining of Issues. Anderson, The Issue here is not mis-joyned: For if the Counties could join, the Issue were good, but because that the Counties cannot join, it cannot be well tried: But the Issue itself is well enough. Windham and Rhodes were of the same Opinion; but Periam doubted it. Anderson said, That if an Issue tryable in one Court, be tried in another and judgement given upon it, it is Error. And afterwards Lutrich the Attorney said, That it was awarded that they should re-plead; Nota, quod mirum: For first, the Statute of 32 H. 8. cap. 30. speaks of misjoining of Process, and not misjoining of Issues; and admit that this Case is not within any of those Clauses, each of them being considered by itself, yet I conceive it is contained within the substance and effect of them, being considered together. Also I conceive, it is within the meaning of both Statutes, viz. 32 H. 8. cap. 30. & 18 Eliz. cap. 14. for I conceive, the meaning of both Statutes was to waste delays, circuits of Actions and Molestations, and that the party might have his judgement notwithstanding any defect, if it were so, that notwithstanding that defect, sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover, if any of the points of the Issue be found for him: For if it be found that the matter and substance of the Oath be found true, which might be tried well enough by those in London) the Plaintiff had cause to recover: Wherefore, I conceive that the Verdict in London is good enough and effectual: And note, that Rhodes said that he was of Counsel in such a case in the King's Bench, betwixt Nevil and Dent. CCCLXVI. Mich. 19 Eliz. In the Common Pleas. 3 Leon. 103. THe Case was, A. granted B. a Rent-charge out of his Lands to commence when J. S. dies without Issue of his Body; J. S. dies having Issue and the Issue dyeth without Issue: Dyer said, That the Grant shall not take effect, for J. S. at the time of his death had Issue, and therefore the Grant shall not then commence, and if he dyeth, than not at all by Manwood. And Dyer and Manwood said, If the words had been to begin when J. S. is dead without Issue of his Body, than such a Grant should take effect, when the Issue of J.S. dies without Issue, etc. And they said, That if the Donee in tail hath Issue, which dyeth without Issue, the Formedon in Reverter shall suppose that the Donee himself died with Issue, for there is an Interest. And there is a difference betwixt an Interest and a Limitation: For if I give Lands to A and B. for the term of their lives, if either of them dyeth, the Survivor shall hold the whole: But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth, the whole Estate is determined, because it is but a Limitation, and B. and C. have not any Interest. CCCLXVII. Temps Roign Eliz. In the Common Pleas. THe Prior of Bath let his Manor of A. to C. for life, rendrint Rent; and after the Priory dissolved, the King let the whole Manor, with the appurtenances to J. S. Dyer, The matter depends upon this point, If the Demesus be severed from the Services during the life of the Lessee. And he conceived that the Lord could not hold a Court, if such power were not reserved upon the Lease; contrary if but parcel had been leased, quod fuit concessum. Welch, The Demesns are severed from the Services for ever, as if they had been granted in Fee; but here, having regard to the Lessor, the Demesns and Services are united, and make one Manor: But as unto the Lessee, and all others, the Services are in gross; and such also was the Opinion of Dyer: And he said, That if a Bishop Leases the Demesns of his Manor for life, and dyeth, the Reversion shall be in his Successor, and was in him in his life time in the right of his Church; and if Husband and Wife, seized of a Manor in the right of the Wife, let the Demesns of the said Manor for life, yet he hath the Reversion in the right of his Wife, and in such Case it remains a Manor; but if the Husband alone had let it, he had gained the Reversion to him, and severed it from the Manor. CCCLXVIII. Trin. 33 Eliz. In the Common Pleas. THe Case was, 3 Leon 252. A man 30 Eliz. made a Feoffment in Fee to the use of himself for life, and after to the use of his first Son, and his Heirs: The Father and the Feoffees before Issue, For money, by Deed gave, granted, and enfeoffed J. S. and his Heirs, who had no notice of the use: the Tenant for life had Issue, and died the Issue entered. Glanvill, The use limited to the first Son is destroyed; for without regress of the Feoffees it cannot rise, and it is gone by the Livery. Vide Blow. Com. 347. And also he put the Case of the Earl of Kent, who by the Release of the surviving Feoffees, a dormant use was destroyed, and could not afterwards be revived. Harris, The use might rise without the entry of the Feoffees; and he put a difference betwixt an use created before the Statute, and created after; for in the first case they ought to enter, and if they be disabled by any Act, as in the case of Gascoign and the Earl of Kent, it shall never rise; but in the latter case all the authority and confidence is by the Statute taken out of the Feoffees, and the use contingent shall rise without aid of the Feoffees, by the operation of the Law; for the Land is bound to the uses, and charged with them; as upon a Recovery in a Warrantia Chartae, the Land of the Defendant is charged pro loco & tempore; and according to the common Experience in Conveyances for payment of the King's Debts, as in the case of Bowden and Dennis, the Debtor of the King made a Feoffment in Fee unto the use of himself and his Heirs until he should make a default of payment of such a Sum to the Queen at such a day, and for default to the use of the Queen and her Heirs. Cooper, There needs no entry of the Feoffees; and he put the difference before put by Harris, between an use created before, and an use created after the Statute; and now the Feoffees have not any power to revive or destroy such uses, but are only as instruments to convey the uses, for the use is created upon the Livery, and is transferred by the Statute, if the person to whom the use is limited be capable thereof at the time of the limitation; and he put the Case of Feoffments to uses, 30 H 8. and there is a great difference betwixt uses limited before and after the Statute; for they have not such a Seisin whereof they may make a Feoffment. And he put the Case of Cheny and Oxenbridge; Cheny let to Oxenbridge for 60 years, and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife, for their lives, with divers Remainders over; and it was adjudged in the Court of Wards, that by that Feoffment the term was not extinct: And he put the Case of the Lord Paget, adjudged in the King's Bench; A Feoffment was made to the use of the Feoffor for life, the Remainder to him whom the Feoffor should name at his death in Fee; the Feoffor and the Feoffees for good consideration levy a Fine to a stranger and afterwards the Feoffor names one and dies, the party named by the Feoffor shall have the Land notwithstanding the Fine. Beaumount, The contingent use here is utterly destroyed; and it appears by the preamble of the Act of 27 H. 8. that the makers of the said Act did not favour Uses, but their intent was utterly to root out Uses; and if contingent Uses, which are not, nor can be executed by the Statute, should stand in force, the mischief would be. That no Purchasor would be secured of his Purchase, but should always be in danger of a new born use, not before known. And he grounded his further Argument upon the reason of Manwood and Dyer, Where a man makes a Feoffment in Fee to the use of himself and his Wife that shall be and afterwards he and his Feoffees, and those in remainder make a Feoffment to divers new Feoffees, and unto new Uses, and afterwards takes another wife and dies; it seemed to the said 2 justices that by that Feoffment ut supra the contingent Use was destroyed; for when the Estate which the Feoffees accepted of is taken away, which is the root and foundation of the Uses, which are the Branches and Body of the said Tree, it necessarily follows, that they also be taken away. And forasmuch as the Feoffees by their Livery are barred to enter for to recontinue the Estate which should yield the said Uses, they also are gone and extinguished. Yeluerton conceived that notwithstanding the Feoffment, that the use did rise in its due time according to the limitation of it. Quaere, the Case was not Resolved but Adjourned. CCCLXIX. Trin. 33 Eliz. In the Common Pleas. IN a Replevin, the Defendant avowed for Damage pheasant, the Plaintiff in bar of the Avowry shown, That he is inhabitant of such a Town, and shown, that every inhabitant in every Message in the said Town had used to have Common in the place where, etc. Glanvill, The Prescription is not good for want of capacity in the party who pretends interest, for it is not certain, but applied to a multitude; and he put divers cases to prove the same, as 22 H. 6. 21 H. 7. 1. Mariae, Dyer 100 The King grants a Rent probis hominibus de Islington, the same is void, for they are not capable. Harris, The Prescription is good; and he agreed that a confused multitude could not prescribe in matter of Interest, but in an Easement or Discharge, as in a way to the Church, and that by reason of the custom of the Land, and not in their Person. Vide 7 E. 4. 26. Where it is pleaded, That all the Inhabitants within such a Town have used to have Common there, and for a Township to have a way to the Church, and by Danby it is good; and Littleton said it ought to be pleaded by way of Usage: and 18 E. 4. 3. All the Inhabitants of such a Town, time out of mind, have used to have Common, etc. Where a difference was taken, where the Prescription is in the Person, and where in the Land. 15 E. 4. 29. Cooper, Inhabitants of a Town may well prescribe, and he vouched Bracton 222, 223. Quando acquiritur ex longo usu sive constitutione cum pacifica possessione continua, & non interrupta ex scientia negligentia & patientia Dominorum, Et etiam omitti potest per negligentiam: and he vouched Britton 144. Common is obtained by long sufferance, and also may be lost by long negligence, etc. The Case was adjourned. CCCLXX. Mich. 5 Jac. In the Common Pleas. TEnant for life of a Rent acknowledgeth a Statute, and releaseth to the Terr-tenant, the Statute is forfeited: It was holden by Cook, and two other of the justices in Communi Banco, That the Rent as to the Conusee was in esse. CCCLXXI. IT was holden by Yeluerton in his Reading, That if a man makes a Lease for two years, and confirms the Estate of the Lessee for 20 years, it is a good confirmation for 20 years, because that all is but a Chattel. CCCLXXII. IF 2 joint-tenants are for life, and the one grants his Estate for the life of his Companion, it was holden to be a Forfeiture; for first it is a Severance of the jointure, and then a Lease for the life of another. CCCLXXIII. Mich. 5 Jac. In the Common Pleas. TWo men were jointly bound in an Obligation, the one is Principal the other is Surety, the Principal died, the Surety took Administration, and the Principal having forfeited his Obligation, the Surety made an Agreement with the Creditor, and took upon him by Bond to discharge the Debt; In Debt brought by another Creditor of the Intestate, upon fully Administered pleaded by the Administrator, it was a Question, if upon showing of the Obligation, and that he had satisfied it, and contented it in his proper Debt he should be relieved upon that Plea. It was adjudged he should not, because by the joining with the Principal, the Debt became his own Debt. CCCLXXIV. IF Land be given to A. and B. for the life of C. the remainder to the right Heirs of A. or B. who shall survive: It was holden. That if A do release to B that the remainder was destroyed. And if Land be given to one in Tail, and if J. S. comes to Westminster such a day the remainder to J. S. in Fee, if the Estate-tail descends to two Coparceners who make Partition; now if J. S. come to Westminster, the Fee shall not accrue, because the particular Estate is not in the same plight as it was before. CCCLXXV. Mich. 5 Jac. In the Common Pleas. IT was resolved, That a Copyholder was not within the Statute of W●●ls. CCCLXXVI. Mich. 5 Jac. In the Common Pleas. A Man makes a Feoffment with warranty; If the Feoffee brings a Warrantia Chartae against the Heir, who pleads riens per descent at the time of the Voucher and it is found for the Tenant: It was holden, That the Plaintiff should never after have Execution of Lands which after descend, for that it is peremptory for the Demandant. CCCXXLVII. Mich. 5 Jac. adjudge acc'. THe Queen hath the Isle of Garnsey, and cognisance of Pleas within it, for her jointure: A man within Garnsey being disturbed to present to a Church which is void, brings a Quare Impedit in Communi Banco; It was holden in this Case, That Garnsey is an Island where our Law runneth not; but it is otherwise of the Isle 〈◊〉 Man, etc. And it was said, That if the King grants cognisance of Pleas, a man shall not have cognisance of Quare Impedit, Assize, Redisseisin, etc. CCCLXXVIII. Mich. 5 Jac. In the Common Pleas. NOte, It was resolved by the justices, That if a Parson takes a Benefice above the value of 8 l. with a Dispensation, and afterwards takes a 3 l. Benefice, that the first Benefice is void by the Statute of 21 H. 8. cap. 13. CCCLXXIX. 44 Eliz. In the King's Bench. NOte, It was said that it was adjudged 44 Eliz. in Banco Regis. That if Lessee for life granteth his interest to his Lessor, that the same shall not enure as a Surrender, because there wants words of Surrender, but shall enure by way of Grant only. CCCLXXX. Hil. 5 Jac. In the King's Bench by Cook. IT was holden by Cook Chief justice, 1 Roll. 844. Syderf. 445. If a man seized in Fee deviseth that after the death of his Son without issue, that J. S. shall have his Lands, that in that case the Son hath an Estate in Fee determinable, and that the Remainder is good. Mich. 5 Jac. In the King's Bench. CCCLXXXI. Balls Case. A Copyholder pleaded, That the Custom of the Manor was, that every Copyholder for life might appoint in the presence of two others, that such a man should have his Copyhold after his death without any Surrender to his use and that the two Tenants should assess for his Fine what Sum they pleased, so as it was not lesser than had used to be paid, where the Lord would assess a reasonable Fine; and it was adjudged that it was a good Custom. Pasc. 6 Jac. In the Common Pleas. CCCLXXXII. Glascocks' Case. A Copyholder alleges the custom to be, That all the Tenants within such a Manor in Essex, had used to cut down Trees to repair their Copyhold and Freehold Tenements within the Manor and also to sell their Trees at their pleasure: And adjudged a good custom. Mich. 1 Jac. In the Common Pleas, Rot. 854. CCCLXXXIII. Sapland and Ridlers Case. IT was adjudged after long Argument, That where the custom of a Copyhold Manor was to admit for life, and in remainder for life at any time when there is but one Copyholder for life in possession: And during the minority of the Heir within the age of 14 years, his Guardian in Soccage in his own name admits a Copyholder in remainder for life; that it was a good Admittance according to the custom; and he was Dominus pro tempore well enough as to that purpose; although it was objected by Walmsley, That the Guardian is but a Servant and not Dominus; but because it was agreed that he had a lawful interest, the admittance was good: And so it was adjudged. Pasc. 3 Jac. In the Common Pleas. CCCLXXXIV. Duke and Smith's Case. IT was agreed, That if he in the Reversion suffereth a Common Recovery to Uses, his Heir cannot plead that his Father had not any thing at the time of the Recovery, for he is estopped to say that his Father was not Tenant to the Praecipe, and therefore it is a good Recovery against him by way of Estoppel. CCCLXXXV. Mich. 6 Jac. In the King's Bench. IN a Writ of Error brought upon a judgement given in Communi Banco in an Ejectione firmae upon a Lease of a Running Water, it was agreed by the Court, That no Livery could be made of Running Water, because it is fugitive; but otherwise it is of Water in a standing Pool, for that is certain and peramount; and of that Livery ought to be with a dish of part of the Water. CCCLXXXVI. Duncombs Case. In the Common Pleas. THe Grantee of a Rent-charge for life acknowledgeth a Statute, and afterwards he released to the Terr-tenant; It was the Opinion of Cook Chief justice in Communi Banco, that the Rent after the Release should be put in Execution upon the Statute. CCCLXXXVII. The Opinion of Popham Chief Justice in the King's Bench. IT was the Opinion of Popham Chief justice, That if a man covenant to stand seized to the use of himself for life, the remainder to the use of his Executors, that in that Case the Executors shall take to the use of their Testator: But if a man covenant upon good consideration to stand seized to the use of the Executors of a stranger, that the word (Executors) is a word of Purchase, and they shall take to their own use. CCCLXXXVIII. Mich. 7 Jac. In the Common Pleas. COok Chief justice put this case, If the custom of a Manor is, that every Tenant at his death shall pay his best Beast for a Heriot, if a Feme sole, who is Tenant for life of this Manor, taketh a Husband, and afterwards dyeth, if the Lord shall have a Heriot: Dodderidge the King's Sergeant said that he should not, because that the Wife had not Goods. Mich. 7 Jac. In the Common Pleas. CCCLXXXIX. Wards Case. AN Information was against Ward and his Wife, for his Wives not coming to the Church, upon the Statute of 28 & 35 Eliz. It was said by Cook Chief justice, That the Husband is chargeable for the Recusancy of his Wife, and he said there needed no Conviction; but before an Information the Husband shall not be chargeable for his Wife, but where he is named with the Wife; and he said. That the King had a Fee-simple in their Lands, for he hath it to him and his Heirs and Successors until conformity, with satisfaction of the Arrearages. Vide Statut. 28 Eliz. Rastal. Tit. Corone. Mich. 3 Jac. In the Common Pleas. CCCXC. Wheelers Case. A Copyhold custom is, That a Woman shall have a Free Bench, quam diu se bene gesserit, and live chafed; and she is incontinent, of which the Lord hath not notice, and the Lord admits her Tenant: It was holden it should bind the Lord, although he had not notice of the Incontinency. Mich. 5 Jac. In the Star-Chamber. CCCXCI. Edwards and Wattons Case. NOte for Law in the Star-Chamber, If a man write a scandalous Letter unto another, and put his name to it, if the party who writ it, publisheth the same either before or after the delivery, an Action upon the Case lieth against him at the Common Law: But if the party who writes it doth not publish it, yet he may be sued for the same in the Star-Chamber: And it was said in this Case. That he who receives Books which are written against the Religion established in the Kingdom, and shows them to others, with Comments of them, he runs into a Praemunire by the Statute of 4 Eliz. CCCXCII. Rolls tit. Waste. THe Case was, A. made a Lease of White Acre to B. upon condition he should do no Waste; in which there was a Fishpond stored with Carp, Pikes, and their Fry; C. destroys all the Fish, B. being upon the Land, for which A. enters; 1. If the destruction of all the Fish, and their Fry, be Waste within the Statute of Gloucester: It was said that it was, for they are parcel of the Inheritance, as are Dear within a Park enclosed: But it was adjudged 29 Eliz. in Communi Banco in Moyle and Ewers Case, That where a Lease of a Manor was, in which was a Warren of Coneys, and the Lessee destroyed the Coneys, that it was not waste, for they were ferae naturae, and the Land bettered by them; and such was the Opinion of Walmsley justice, although the Coneys were in a Warren paled and enclosed with a Wall; but the destroying of Doves in a Dove-house is Waste. And it was adjudged in Sir Francis Palmers Case, 9 Jac. in B.R. That although the cutting of Underwood was not Waste yet the eradicating of it was Waste: The other matter was, If the destruction of the Fish by a Stranger, the Lessee being upon the Land were waste; it was said it was waste, for qui non vetat peccare cum possit jubet; and it was said, That if a man commit waste, or suffer another to do it, he did incur the penalty in the Statute. But in this case it was said, That a Condition to defeat an Estate should be taken strictly: As if a Custom be, that if a Copyholder for waste done shall forfeit his Estate, if a stranger doth the waste it is no Forfeiture, for three things in Law shall be taken strictly, Conditions, Customs, Penal Laws. As if the Custom be, That an Infant at the age of 15 may make a Feoffment, he cannot make it by Attorney. And it was adjudged 1 Jac. in Communi Banco in Woodleys' Case. So the Statute of 5 E. 6. a Penal Law is, That a man shall not buy any Victual to sell the same again: Yet it was adjudged, That where a man buys Meal, and makes the same into Starch, and sells it, he may well justify the sale thereof, and it is out of the Statute, because it is not the same thing. Pasc. 8 Jac. In the King's Bench. CCCXCIII. Wards Case. IT was adjudged in this Court, That if a Mill be set upon Posts, that no waste lieth for it; and that a Copyhold might be of a Mill, as it was adjudged in Green and Harris' Case. Also it was said, That there is a real and personal Forfeiture of Copyhold Lands; Real is not necessary to be found by the Homages, as was resolved in brock's Case; but otherwise it is of a Personal Forfeiture: And Hil. 8 Jac. a Woman Copyholder built a new House upon the Land, and it was agreed to be a Forfeiture. Pasc. 8 Jac. In the Common Pleas. CCCXCIV. Brown and Tuckers Case. IF a man have Estovers to such a House, 4 Co. 84. and he enlargeth his House, or buildeth more Houses or Chimneys, the Estovers remain to all the Houses and Chimneys which were there before, and not to those added or new builded, as it was adjudged. Pasc. 8 Jac. In the Common Pleas. CCCXCV. Batcliffe and chaplains Case. 1 Roll. 623. IN an Ejectione firmae between Ratcliff and Chaplin upon not guilty pleaded, it was given in Evidence. That time out of mind a Custom had been used, and that proved by Witnesses, that the eldest Heir, be it Male or Female, should inherit the Land; and that it appeared in the Court Rolls of the said Manor, of which the Land in question was parcel; two Precedents to prove that the eldest Sister ought to inherit, and that the youngest Sister should have nothing in the Land; the one Precedent was 8 Eliz. and the other 18 Eliz. In the other side in disaffirmance of the custom, it was given in Evidence, divers Court-Rolls 6 H. 4. and especially one Precedent, That both Sisters should inherit as Coparceners did by the common Law; notwithstanding which, the jury found for the custom in regard they upon their own knowledge knew the usage of the Country, and that in divers places it had been so used in the Hundred within which this Manor was. But in this case it was agreed by the Court, That if the custom had been that the eldest Sister only should inherit, yet by that custom the eldest Aunt, or the eldest Niece should not inherit the Land: And so it is in the case of Borough English, where the custom is, That the youngest Son shall have the Land, it doth not give it to the youngest Uncle, for customs shall be taken strictly: and Foster justice said. That so it was adjudged in one Totnams case: And in the Argument of this case, it was said by Cook Chief justice, That there are two Pillars of Custom, one the common usage; the other, that it be time out of mind; and therefore upon the Evidence given to the jury, the Court enforced the parties which maintained the custom to show Precedents in the Court-Rolls to prove the usage, and he said, that without such proof, and that it had been put in ure, although it had been deemed and reported to have been the true custom; yet the Court could not give credit to the promise by Witnesses. Pasc. 8 Jac. In the Common Pleas. CCCXCVI. Arden and Goads Case. IN an Action of Trespass upon the Case for divers Goods, the Declaration was of Trover and Conversion of them to the Defendants use: Upon Not Guilty pleaded, they were at Issue, and there an Inventory of the Goods was given in Evidence to the jury, as the Goods were apprised by upholsterers: And in this Evidence another Point did arise, These Goods were taken in Execution, and delivered to the Defendant by the Sheriff; and afterwards the Owner of the Goods against whom the Execution was awarded, made a Deed of Gift of them to the Plaintiff by these words, scil. He granted all those Goods which were late put in Execution. Cook Chief justice said. That Quacunque via data that Deed could not entitle the Plaintiff to the Goods, for it is a Dilemma; for Posito, that the Goods were put in Execution, than they did not pass; and admit that they were not put in Execution, he did not grant but only those Goods which were in Execution, and so there is an opposition; and afterward judgement was given for the Defendant. Pasc. 8 Jac. In the Common Pleas. CCCXCVII. The Earl of Rutland and Spencer's Case. THe case was, 8 Co. 55. The late Queen Elizabeth granted to the Earl of Rutland the Office of Parkership and Constable of etc. Habendum from the time of his full age for life, and also by the same Patent she granted him the Stewardship of a Manor, Habend' praedict' Officia pro termino vitae per Deputatum suum vel Deputatos suos, etc. eidem Officio pertinent' in tam amplis modo & forma, etc. Volentes quod subditi nostri sint auxiliantes & assistentes to him: And after that one as Steward to that Court came and made Proclamations, and also did the Deputy of the Earl of Rutland: And thereupon the Earl of Rutland brought an Action upon the Case against the other: In this case three Points were moved by nichols Sergeant, 1. If a Stewardship granted by the King might be exercised by a Deputy without such authority given him in his Patent: And he took a Difference between an Office of Trust and other Offices, as in 28 H. 8. of a Carver, etc. and 11 E. 4. 1. the Office of the Chancellor of the Exchequer, and such Offices cannot without special Authority be assigned over, 39 H. 6. 34. Of the Office of Marshal per se vel sufficient' Deputatum, etc. nevil's Case in the Commentaries. Offices of trust which are inheritances may be executed by Deputy. 8 Eliz. Dy. 248. A Steward may be retained by word; and he said, There is a difference between a Deputy and an Assignee; for an Assignee can forfeit but his own Estate, but a Deputy shall forfeit the Estate of his Master, and therefore if a Steward grant his Office for life who hath the Office in Fee, the Grantee shall forfeit no more than his Estate for life, 2 E. 6. Br. If the under Steward make Admittances, it is good, and yet he is but a Deputy; but if it be out of Court, than it ought to be by a special Custom, Vide 2 Eliz. Dyer. The Office of Chyrographer granted for life, and exercisable by a Deputy: And he said, That in these Letters Patents the intent shall be taken beneficially for the Subject, and that for the Honour of the King, if the King be not deceived in his Grant. Vide 6 E. 6. Dyer 77. Dodderidge to the contrary; and he took a difference between Offices of Trust granted for life, and those which are granted in Fee, for he who hath it but for life cannot assign them over; for the Grantor did not intent that another person should have the Office, unless express mention were made in the Grant of Assignees: But when the Office is granted in Fee, there is no such confidence put in the person of the Grantee, for his heir shall have it, who is a person not known to the Grantor. But in all cases the Grantee is elected for his skill: I agree 10 E. 4. 10. he may make a Deputy by special words, but then that Deputy by those words cannot make a Deputy: That a Steward is an Officer of trust, is proved; for he enters Plaints in the Court, and Surrenders, and although he hath not a judicial Place, yet he hath a Ministerial Place, and the Lord and Tenants repose their trusts in him: And it is also an Office of Skill. Vide 21 E. 4. 20. That the Office of the Keeper of a Park, Steward, &c. cannot be assigned without special words of Assignees. And as to the Case which was put by nichols, 8 Eliz. That one may make a Steward by word, and therefore an Assignee for life by word, it is a Non sequitur: And he said That for another cause in the Patent itself, no Deputy in this case could be made; for although the words are Habendum & Gaudendum, etc. Offic' praedict' per Deputarum suum, sive deputatos suos, the same had been good if there had been no Habendum before: There was an Habendum before in the Patent: But here are three several Habendums, which are as three several Grants, and the defect of the one shall not be supplied by the other. 22 H. 6. 11. 2. Assizes are maintainable for two Offices, although they be by one and the self same Grant: And those words (Volentes, etc.) in the Patent, are nothing to the purpose, for the Grant itself is determinable by the Body of the Grant, and the Clause de Assistants shall not supply that. Vide 20 H. 6. 1. Land given to two & Haeredibus, with warranty, Haeredibus suis. Vide 13 E. 3. Grants 63. Throgmorton and Tracies Case, Blow. Com. 18 H. 8. Br. Lovels Case; and so in our Case, the clause of Assistants makes nothing to the matter; for reddendo singula singulis it extends to no more than passed, and was granted before in the body of the Grant. The second Point which Dodderidge argued was, If there was a sufficient Disturbance: and he held that there was not, and therefore the finding of the jury not good: And the jury hath not found the vi & armis; and he said, That when the Writ is vi & armis, there ought to be some violence, and taking of something, and some actual thing is to be done. Vide F. B. 86. & 92. 43 E. 3. 20. 8 R 2. Title Office. 48 E. 3. 25. 16 E. 4. 11. & 2 E. 3. 40. But in this Case there is but a threatening at the most but no force is used; and there the Writ is ill, and there is no sufficient Disturbance to maintain this Action. The Case was adjourned. Trin. 11 Jac. In the Common Pleas. CCCXCVIII. Cook's Case. IN a Writ of Intrusit Maritagio non satisfacto, It was found for the Plaintiff, but no damages were assessed by the jury, and the value of the Marriage was found to 50 l. and now the Question was, If the same might be supplied by a Writ of Enquiry of Damages, and prima fancy the Court seemed to be of opinion it could not; for where a man may have an Attaint, there no damages shall be assessed by the Court, if they be not found by jury: and the Court would advise of it; but afterwards the same Term it was adjudged, That no Writ of Enquiry should Issue forth; But a Venire facias de novo was granted. Vide 44 E. 3. Thorp. acc'. CCCXCIX. MOuntague Serjeant demanded of the justices their opinions in a Case upon the Statute of 3 Jacobi of Recusants, in the behalf of the University of Oxford: The Case was, If a Recusant Convict, to avoid the said Statute, grants his Patronage for years to one of his Friends in trust, if the Grant was void, or not within the said Statute. The justices refused to deliver their Opinions in this Case; for they said, That this Point might judicially come in question before themselves, and such they said was the Answer of Hussey in 1 H. 7. in Humphrey Staffords case: When King Hen. 7. came in Banco, and demanded a question of them; but yet they seemed to agree, that such a lease of the Patronage was void by the said Statute; and they said, That they would not have the University to be discouraged in the case, which employed their Opinions to be accordingly: And 21 H. 7. was vouched, that the Patronage was only matter of favour, and not valuable. And in this Case Cook said, Quod apertus Haereticus melior est, quam fictus Catholicus. Trin. 11 Jac. In the Common Pleas. CCCC. Grubhams' Case. THe Case was this, Grubham made a Lease to one by Deed-poll, Habendum to him and his Wife, and to his Daughter successive sicut scribuntur & nominantur in ordine, and afterwards died, his Wife died, and if it was a good remainder to the Daughter, was the Question. Harris Sergeant, It was void, and not a good remainder for the incertainty. Et vide Cook 1 part, Corbets Case. In all Contracts and Bargains there ought to be certainty: and therefore in 22 H. 6. If a Feoffment be made to two, & Haeredibus, it is void, although it be with warranty to them and their Heirs. Vide 9 H. 6. 35. Where renunciavit totam Communiam, doth not amount to a Release, because it is not showed to whom he released: And so in 29 Eliz. in Banco Regis, in Windsmore and Halberds Case, where an Indenture was to one Habendum to him and his Wife, and a third person, and it was holden that it was void by way of Remainder to any of them. But the Court was of Opinion in the principal Case, That the Daughter had a good Estate in Remainder, and that the Case did not differ from the Case in the Lord Dyer; where a Lease was made by Indenture to one, Habendum to him, and to another sicut nominat. in Charta, and that those words made the Grant certain enough; and so in this Case, sicut scribuntur & nominantur in ordine, shall be sicut scribuntur & nominantur in eadem Charta; But they agreed, That a Lease made to three, Habendum successive, was not good for the incertainty. Hil. 9 Jac. In the King's Bench. CCCCI. Price and Atmores' Case. IN an Ejectione firmae it was agreed by the justices, Where a man possessed of a term for 60 years, by his Will made his Wife his Executrix, and devised all his term and interest to her, and if she died before the term ended, that the same should remain to his Son and the Heirs Males of his Body the Son died, the Executrix entered, and claimed as Legatee, and assigned the term over, the Executor of the Son entered, that his Entry was not lawful, for the Son had but a Possibility, and no Interest; for by the devise of the whole term, the whole Interest was in the Wife, and when it was in her it could not remain over; otherwise if the Land had been granted to her for life, and if she died, that it should remain as before: And note, that 25 Eliz. it was adjudged in Communi Banco, that such a Possibility could not be released: And 29 Eliz. in Hammingtons, case, that it could not be granted. Trin. 11 Jac. In the Common Pleas. CCCCII. The Bishop of Exeter and Sir Henry Wallops Case. NOte in this case it was adjudged, That the King by a special Proviso in the Statute of 21 H. 8. of Plurality, might give to any of his Chaplains as many Benefices as he pleased. But otherwise it is of a common person, for they are stinted by the Statute. Mich. 12 Jac. In the King's Bench. CCCCIII. Glover and Archers Case. THe case was, Tenant for life made a Lease for 21 years, 10 Co. 127, 128 2 Cro. 127. & 309. ib. rendering Rend at Mich. and the Annunciation, or within 13 Weeks of any of the said Feasts: After Mich. and before the 13 Weeks past, the Lessor died; and the Plaintiff his Executor brought Debt for the Rent: It was adjudged by Cook and the other justices, That the Action did not lie forth Rend: For the Rent being to be paid at Mich. or within 13 Weeks after, the Lessee hath Election to pay it at any of the days, and before the last day it is not due, and when the Lessor dyeth before that day, his Executors have not any right to the Rent, but after the death of the Lessor, having but an Estate for life, the Rent is gone: But if the Lessor had had a Fee-simple in the Land, and had died before the last day, the Heir should have had the Rent, as incident to the Reversion: But if the Lessor had survived both days, the Rent had been a thing vested in him, and his Executors should have had it; but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks, that then it should be lawful for the Lessor to enter; if the Lessor survive Mich his Executors shall have Debt for the Rent, for then the Rent is due, and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time: And in this case as well as where the Rent is reserved at two days in the disjunctive, it is sufficient that the Rent be demanded at the latter day, without demanding of it at the first day. Mich. 10 Jac. In the Common Pleas. CCCCIV. Sir Baptist Hix and Fleetwood and Gotts Case. Roll. tit. Condition. THe Case was, Fleetwood and Gotts bargained and sold Weston Park, being 300 Acres of Land, to Sir Baptist Hix for 11 l. for every Acre, which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale, it was agreed by the parties, That the said Park being Wood-Land should be measured by a Pole of 18 Foot and a half: And further it was covenanted, That Fleetwood and Gotts should appoint one Surveyor, and Hix another, who should measure the said Park; and if it by the measure should exceed the Number of Acres mentioned in the Indenture, that then Hix should add to them according to the proportion of 11 l. for every Acre, and if it wanted of the Measure, than the said Fleetwood and Gotts should repay to Hix the Surplusage of that Money, according to the proportion of 11 l. the Acre: And upon the Indenture Hix brought Covenant, and Assigned a Breach, because upon Measure it wanted 70 Acres; and the Defendants did demur upon the Declaration, because the Plaintiff had not therein showed by what measure it was measured; for they said by Shirley, That although it was agreed in the first part of the Indenture, that the measure should be by a Pole of 18 Foot and a half, yet when they come to the Covenants, there they do not speak of any Measure; for which cause it shall be taken for such a Measure as the Statute speaks of scil. a Measure of 16 Foot and a half the Pole; and by such Measure there wants not any part of the Acres. Dodderidge contr. And he put this ground, That if certainty once appeareth in a Deed, and afterwards in the same Deed it is spoken indifferently, Reference shall be unto the certainty which appeareth: And therefore if by an Indenture Lands be given to a man, & Haeredibus masculis, and afterwards in the same Deed it appears, it is Haeredibus de Corpore suo: It shall be an Estate-tail, because the first words were indefinite, and the last certain, by which it appeared that he passed but an Estate in Tail: And 4 E. 4. 9 b. the words of a Declaration was, Noverint universi per praesentes nos J. S. teneri, etc. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court, the same did not make the Obligation void, because it appeared by the first part of the Obligation, that he should be bound to the Plaintiff; and therefore the intent being so, the Plaintiff might declare of a Solvendum to himself: And the words (J. S.) should be Surplusage: And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae, Et solvendam quousque (sibi) de beneficio Competo provisum fuerit; It was holden by the Court in a Writ of Annuity brought, That the word (sibi) should have reference to B. the Grantee, and not to J. E. And Cook said, That the original Contract did leave the Measure in this Case; and for that he vouched Redwellies Case in Ploughed. Comment. A Lease rendering Rend at Mich. at D. and if it be behind for a month after demand, that the Lessor shall re-enter; it shall be demanded at the first place. Trin. 12 Jac. In the Star-Chamber. CCCCU. Sir Richard egerton's Case. IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff; these Points were resolved by the Court: 1. If a man be Sentenced in the Star-Chamber to pay a Fine, and to Imprisonment, and the Delinquent renders his Body to Prison, that notwithstanding the Body continues in Prison, the King shall be satisfied the Fine out of the Profits of the Delinquents Lands. 2. If a Feme Covert be sentenced there and she renders her Body to Prison, and there abides, That the Lands of her Husband shall be sequestered, and the Profits thereof for the Fine of his Wife. And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife, if he do not render her to Prison, and discharge the same. 3. If a man be Sentenced in the Star Chamber to pay a Fine, and to have Imprisonment, and he yield himself to Prison, That before his Fine be also paid, he shall not proceed in any Action at the Common Law against the Party in the same Suit. Pasc. 12 Jac. In the Common Pleas. CCCCVI. Crane and Parkins Case. IN Trespass, The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom, and shown, That the Custom of the Manor was, that if any Tenant for life died, that the Lord for three years Fine ought to grant the same to his Heir, and pleaded a Grant of the Manor to the Lord Grey of Grooby: And also pleaded another Custom of the said Manor, That if any Tenant for life of the said Manor had a Wife, and died, that the Wife shall have in the Land her Widow's Estate: And that after the death of the Wife, that the Son, for a Fine of three years paid to the Lord, should have it for his life, and that the Defendant claimed as Son, according to that Custom. The Plaintiff made Title as Lessee for years to the Lord Grace of the Manor, and traverseth that there was not any such Custom, that the Son for a Fine of three years paid should have the Land for his life. Hutton said, That the Traverse was good; for if there was not any such Custom, that the Son should have it so for life, then ex consequente sequitur, that there is not any such Custom that the Son should have it after the death of the Wife, or her Surrender, and therefore he needed not to Traverse the last Custom alleged. But the whole Court was against him, and ruled, That the Traverse was not good; for he ought to have traversed the last Custom, because there are several Customs, and the one is immediately to him, the other not; and the Defendant claimed by the Second Custom, and therefore the Court awarded, That he should amend his Plea. Pasc. 12 Jac. In the Common Pleas. CCCCVII. Sir Henry Rolls and Osborns Case. Hob. Rep. 20. More Rep. 859 2 Brownl. 169. SIr Henry Rolls brought a Writ of Warrantia Chartae against Sir Robert Osborn and Katherine his Wife, and shown, That the Defendant ought to warrant him a Message. 40 Acres of Land, 700 Acres of Pasture in Kelmarsh, and shown, That Sir Robert Osborn and his Wife levied a Fine to him and his Heirs of a Manor, and of the Lands aforesaid, with warranty to him and his Heirs; and further showed, That a Writ of Entre sur disseisin was brought against him of the said Message, 40 Acres of Land, 700 Acres of Pasture, and that he had demanded the Warranty of the Defendant, or that he would minister to him a Plea, which the Defendant hath refused to do, to his damage of 1000 l. the Defendant confessed the Fine and Warranty, as aforesaid; but further pleaded, That in the same Term that the Fine was levied, a Writ of Entry was brought against Sir Henry Rolls, in which Writ he vouched to Warranty the said Defendant, who alone entered into the Warranty and vouched over the common Vouchee, and so a Recovery was had accordingly: And averred That the said Recovery was to the use of Sir Henry Rolls for his life, and if there was a Marriage between him and A. S. within 4 years, then to the use of the said A. S. for her jointure, with divers remainders over and averred the life of Sir H. Rolls: Upon which the Plaintiff did demur in Law. Shirley Serjeant argued for the Plaintiff. That the Warranty was not destroyed, but that the Plaintiff might well mantain his Warrantia Chartae: and for the same he vouched 22 H. 6.22. Clifford's Case; That there ought to be an alteration of the Estate to which the Warranty is annexed, and here is no alteration of the Estate; for although the Recovery was had the said Term and a Voucher upon it, yet because the uses did not take effect presently, but were contingent uses, he remained Tenant in Fee-simple as he was before; and so the first Warranty remained, and was not destroyed. Montague Sergeant contrary; and that the Warrantia Chartae was gone, and that for four Causes: 1. He who comes to an Estate in the Post shall not have a Warrantia Chartae, but Sir Hen. Rolls cometh to the Estate in the Post, ergo, he shall not have Warrantia Chartae. And for that vide 29 Ass. 34. Lord by Escheat shall not have Warrantia Chartae. 22 Ass. 57 The Lord of a Villain shall not have a Warrantia Chartae. 21 H. 6. Disseisor shall not have Warrantia Chartae: and so 19 H 6.25. 10 H. 7.10. Tenant by the Courtesy shall not have the Writ, because all these come to the Lands in the Post: But see Cook 3. part, Lincoln College Case, they may have peradventure benefit of a Rent or of a Condition, but not of a Warranty, 27 E. 3. garr' Statham acc'. 2. Every Warranty ought to have the same Estate continuing to which the Warranty is annexed, but Sir Hen. Rolls had not the same Estate continuing, ergo, he shall not have the Warranty, because the Fine was to him and his Heirs with Warranty; but this Recovery (which was but a further assurance) was but to the use of himself for life, with divers Remainders over so as the first Estate is altered: And 42 E. 3.2. 40 E. 3. 14. it is a good Plea in a Warrantia Chartae, that the Demandant is not Tenant. And 41 Eliz. in Bointon & Chester's Case, it was adjudged in this Court, That if a man makes a Feoffment with Warranty, who enfeoffs the first Feoffor, upon Condition that that Warranty remains, he shall vouch by reason of the first Warranty; but if upon that Feoffment he had limited any new use, there because the Estate was altered, the Voucher was gone. Vide F. N. B. 135. 19 E. 3. T. Voucher 12.2. 48 E. 3. 18. acc'. And it was Resolved 34 Eliz in Banco Regis in Kempe & Henninghams' Case, That in such Case he should not have several Warrantia Charta's: And therefore because in the principal Case he hath once vouched upon this Recovery, and upon that the Estate is altered, he cannot now have Warrantia Chartae. 3. Every Warranty is a Covenant real, which consists in privity, and therefore destroy the privity, and the warranty is gone. But now in this Case the first privity is destroyed, therefore the warranty is gone. And therefore 11 H. 4. 8. if two joint-tenants be with warranty, and one of them maketh a Feoffment in Fee, the warranty is destroyed, because the first privity is destroyed, 21 H. 6. 51. acc'. But Vide 19 E. 3. Statham Garr' 31. If two joint-tenants are with warranty, and the one Releases to the Feoffor, there the warranty remains, because the privity remains, Vide 2 H. 6. 7. Cook 1 Part, Chudleighs Case 125. acc'. And see M. 31 Eliz. in this Court, King and Watts Case: Land is given to Husband and Wife, and to the Heirs of the Body of the Husband and Wife, the Husband levies a Fine, and dies without Issue, the Wife is impleaded, and adjudged that she could not have Aid, nor Warrantia Chartae, because the Estate was bound by the Fine, the Husband being Tenant in special Tail. 4. No warranty can have but one recompense, and if there be recompense given, the warranty is gone and extinct: But here is a recompense made by the Voucher in this Recovery, therefore the warranty is extinct. 34 Ass. pl. 15. 23 E. 3. garr' 77. acc'. and 15 E. 4. 13. 12 E. 4. 12. If he will not take advantage of the warranty when he may, he shall never have it after. Vide F. N. B. 134. acc': And 36 Eliz. it was adjudged in Owen's Case, That if Tenant in Tail bargains and sells his Lands, and suffers a Recovery, and afterwards Enrolls the Deed, that that Recovery is a good bar to the Estate tail, because there is a supposition of recompense: and so he prayed judgement for the Defendants. It was adjourned. Vide this Case now Resolved in the Lord Hoberts Reports. A TABLE OF THE Principal Matters Contained in this BOOK. Abatement of a Writ. IN Account, the Writ abated for part, and for part the Plaintiff had Judgement. 39 In Action upon the Case, and why. 55 Account. Of the King against a Stranger. 32 Actio personalis moritur cum persona. Trover is an Action personal, for it is grounded upon a personal wrong, and ariseth upon a deceit and wrong, and if there was no Conversion, than an Action of Detinue should lie. 44 Where one takes my Horse, and dies, I shall not charge his Executor. 46 If a Smith pricks my Horse, my Executors shall not have an Action for it. ibid. Action upon the Case. Assumpsit. Where it is requisite for the party in an Action upon the Case to express the Assumpsit with the Request, and where not. 2 If one promise in consideration, etc. to assign to J. S. the Lease of a Stranger, for this an Action will lie. Adjudged. 2 If A. Prisoner at the Suit of B. escapes, and being at liberty, promiseth to B. that if he will permit him to be at large, etc. that he will pay to him 10 l. for this no Action will lie. Adj. 3 A Promise against a Promise will maintain an Action upon the Case. ibid. — By an Executor to a Creditor upon forbearance to pay his Debt, makes him liable to pay it of his own Goods. Adj. 1. ibid. — Will lie against the Executors of A. upon his Promise at full Age to save one harmless, who was bound with him (for his Debt) when he was an Infant. 5 — Will not lie against an Executor, if he promises to pay a Debt, and hath not Assets. ibid. — Nor is an Heir subject to an Action upon such a promise, if he hath nothing by Descent 6 An entire Assumpsit cannot be severed by Action. ibid. To avoid Controversies and Suits is a good and sufficient Consideration to ground an Assumpsit upon. 31 The Defendant exhibited a Bill to the Justices of Peace, complaining that the Plaintiff is a disquieter of his Neighbours, etc. and served a Process upon J. S. on a Sunday, and the Justices to whom it was exhibited, awarded Process against the Plaintiff to find Sureties for his good Behaviour, by virtue of which he was taken and imprisoned; For this an Action of the Case will not lie. 35 Action upon the Case for Words. What words are actionable, and what not. 24, 54, 121, 181 Action upon the Statute. Upon 5 Eliz. of Apprentices, holden clearly, That if one hath been an Apprentice for seven years at any Trade mentioned within that Statute, he may exercise any Trade named in the said Statute, although he hath not been an Apprentice to it. 9 Action upon the Statute of Hue and Cry. 18 Upon the Statute of 5 Eliz. of Perjury. 25 Upon the Statute of 5 Eliz. of Usury. 43 Upon the Statute of Hue and Cry 51 Upon the Statute of 23 Eliz. of Recusancy. 54 Upon the Statute 4 Eliz. of Perjury. 105 Upon the Statute of 1 Eliz. of Leases made by Bishops. 61 Upon the Statute of Hue and Cry 85 Upon the Statute 5 E. 6. for buying of Wools. 103 Upon the Statute of 31 H. 8. of Partition. 106 Upon the Statute of Hue and Cry 191 Alien. Purchaser 82. suffers a Common Recovery. 84 Amendment. If a Writ of Error be brought and delivered to the Chief Justice of the Common Pleas, and allowed by him under his hand, the Record cannot afterwards be amended. 50 Day given by the Court to amend the Count in Deceit. 123 Of a Writ of Quare Impedit openly in Court by a Clerk of the Chancery. 12 Amercement. Of the Sheriff for making a return contrary and repugnant in itself. 57 Appeal. If Robbery may be brought 20 years after the Robbery committed, and the party rob shall not be bound to bring it within a year and a day. 16 If the Defendant be attainted by Verdict in an Appeal of Robbery, the fresh Suit shall be inquired of, but otherwise if he be attainted by Outlary. 48 Assignment. Of Debts to the King. 80 No Bonds shall be assigned to the Queen, but such as are made for payment of Mony. 9 Attaint. Where the King is sole party against the Subject, and the Jury find for the King, no Attaint lieth 46 But where the Suit is tam pro Domino Rege quam pro seipso contrary. ibid. Attornment. What shall be a good Attornment, what not. 23 Surrender of a Copyhold Reversion, with the Rent to the use of a Stranger, and his admittance thereupon, are in the nature, and so amount to an Attornment. 25 If A. seized of a Manor, Lease the same for years, rendering Rend, with Clause of Reentry, and afterwards levy a Fine, sur Cognizance de droit, etc. to the use of himself and his Heirs, and the Rent being demanded, is behind, he cannot re-enter, nor avow for the Rent, but is without remedy for the same without Attornment. 34 If A. seized of a Rent in fee grants the same by Fine to B. to the use of C. there needs no Attornment to the Conusee, because all the right of the Rent is out of the Conusor, and transferred to Cestuy que use instantly. 50 Attornment doth not give a right, but is only a consent. 129 Bargain and Sale. IF the Bargainee levies a Fine, and within six months the Deed be enrolled, the Land shall pass by the Fine. 4 Bayl. If a Scire Facias issue against them, before a Capias issue against the Principal, and they be taken, they shall be put to their Writ of Error. 36 Bills. The King may exhibit one Bill in the Exchequer for several causes, arising within several Counties, and it shall be good. 26 Carrier. SEnt with a Letter by one to a Merchant for Merchandizes to send them to him, receiving a sum of Money, the Merchant sent them by the Carrier without money, the Buyer shall not be charged for the money, the Bargain being conditional, and it was the Merchant's folly to trust the Carrier with those Wares. 7 Chancery. May compel a Tenant to Attorn. 8. 184. Common and Commoner. A Commoner cannot kill Coneys which destroy his Common. 7 In what Case Common appurtenant by Prescription sans number is improveable by the Lord of the Waste. 41 Condition. Broken by Lessee for years. 5 Destroyed in part, good in part. 27 Divided. ibid. Grantee of parcel of the Reversion is an Assignee within 32 H. 8. of Conditions. 28 Apportioned. ibid. Suspended. ibid. Conditions by Act in Law divided not by Act of the Party. ibid. Statute of 32 H. 8. of Conditions taken by Equity. 29 Condition suspended in part, is suspended in all. ibid. — Shall be taken favourable for him who is to perform it. 70 Consultation. Was granted, because the Prohibition was general, where it ought to have been special. 16 Conversion. In Trover is Traversable, and therefore aught to be certainly alleged. 45 Conveyance. By the Heir upon Intrusion. 60 Copyholder. Baron Surrenders Femes Copyhold. 88 Not within the Statute of Wills. 236 If a Copyholder in possession surrender the Reversion of his Land post mortem suam to the Lord to an use; nothing is thereby passed. 8 Tenant for Life of a Copyhold remainder in fee, he in the remainder may surrender his Estate, if there be no Custom to the contrary. 9 In what Case a Copyholder ousted cannot make a Lease for years, upon which the Lessee may maintain Ejectione firmae. 30 If a Copyholder dyeth, his Heir within age, he is not bound to come to any Court during his Nonage, to pray admittance, or tender his Fine. 31 — If the death of his Ancestor be not presented, nor proclamations made, he is not at any mischief, although he be at full age. ibid. A Copyholder may surrender by Attorney. 111, 241 Costs. The Plaintiff shall have Costs upon 5 Eliz. for hunting in his Park, notwithstanding the Statute gives triple damages. 36 If the Plaintiff be Non suited in an Action upon an Escape, the Defendant shall not have Costs. 182 Debt. SHall not be brought against the Husband, upon a Contract by the Wife. 42 For Rent— 18. For Rent-Corn reserved upon a Lease for years shall be brought in the Detinet. 47 Upon a Concessit solvere according to the Law Merchant, and Custom of the City of Bristol. 105 Devise. To a College in Vacancy of a Head. 223 If one possessed of a Term, deviseth that his Son shall have the same when he comes to the age of 18 years, and that his Wife (whom he makes Executrix) shall enjoy it in the mean time, and die, and the Wife take Husband, she shall have the Term as Executrix, till the Son accomplish the age of 18 years. 1 Of Lands, part to the eldest Son in Tail, and part to the younger Son in Tail, with this clause, That if any of the Sons died without Issue, the whole Land to remain to a Stranger in Fee, the Sons entered respectively, and the younger died without Issue, the Stranger entered, but his Entry was not lawful, for the eldest Son shall have the Land by the implicative Devise 14 By a Father to his Son and Heir. 35, 200, 237 Who shall first take by a Devise. 37 Emblements. WHere by Law they belong to the Executors. 1 Entry. If a Disseisor of 100 Acres, let's the same to divers for years, the Entry in one Acre by the Disseisee is an Entry against them all. 8 And if one makes a Lease for years, rendering 10 l. for the first two years, and afterwards 30 l. every year, with Condition to Re-enter if the Rent of 30 l. or any part be behind, & the Lessor enters for Nonpayment of the 10 l. his Entry is lawful, for it was but one Rent, of which the 10 l. was parcel. ibid. Entry Congeable. 39 Error. He who is special Heir by the Custom (as of Burrough English) shall have the Writ of Error, and not the Heir at Common Law. 5 Estate. Executed. 37 Estrepement. In Partition ought not to be granted, and why. 60 Evidence. Maybe good enough to maintain a Declaration, though it vary from it. 14 Execution An Infant once discharged out of Execution, shall never be in Execution again. 6 Execution of a Statute shall bind the King. 10 Where not good upon a Capias without a Scire Facias. 24 If the Bail be taken in Execution, before the Capias ad Satisfaciend. against the Defendant be filled, they may avoid this Execution by Error, but not by Plea or Surmise. 24 If the Plaintiff takes out Execution within a year and a day after Judgement obtained, although he doth not prosecute it in two or three years, yet when he pleaseth he may proceed upon it, and shall not be put to a Scire Facias. 44 Exposition of Words. The words sub Conditione, ea Intention in a Feoffment be not a Condition, but an Estate executed presently according to the intent. 2 Domus est nomen collectivum, and contains many Buildings, as Barns, Stables, etc. 16 Omnes Dimissiones being general words, shall not be restrained to special Leases. 17 The word (growing) though it sound in the Present Tense, yet it shall be taken also in the Future Tense. 36 — So the word (being) but otherwise if the words had been (tunc being). 37 The word (paying) if it creates a Condition, or not? Quaere. 50 Proviso semper put on the part of the Lessee, upon the words of the Habendum, makes a Condition; but contrary of a Proviso on the part of the Lessor 71 The Provost, Fellows and Scholars of Queen's College in Oxford, as Guardians of the Hospital, etc. in S. make a Lease of Lands, parcel of the Possession of the said Hospital, by the name of Praepositus Socij & Scholar's Collegij Reginalis in Oxonia, Gardianus Hospitalis, etc. and good without saying (Gardianis) in the Plural Number. 85 Extinguishment. If Lessee for 10 years grant a Rent-Charge to his Lessor for the same years, and the Lessor grant the Remainder in Fee to the Lessee for years, by this the Rent is extinguished. 2 Felo de se. IF the Queen grants to A. Catalla Felonum de se, within such a Precinct, where one indebted to the Queen having Goods is Felo de se, the Queen shall have the Goods to satisfy her Debt. 6 Feoffment. To Uses. 23 By one Coparcener cestuy que use of the whole, is not only a Feoffment of that moiety she might lawfully dispose of, but also of the other moiety by disseisin. 52 Fines of Lands. Where a Fine levied by the Husband of Lands (whereof he and his Wife are Donees in Special Tail) shall bar the Issue, and where not. 2 Fine by the Husband, where avoids a Lease, & e contra. 15 Fines levied to Uses. 22 Issue of a Tenant in Tail (the Remainder to the King) shall be barred by a Fine. 40 Fine for Alienation. Not only the Land aliened, but the other Lands of the Alienor, shall be chargeable for the Fine for Alienation without Licence. 47 Forfeiture. If Lessee for years, being sued for Rent, claims Fee in the Land, and hath none, it is a Forfeiture. 3 — Of an Obligation, with Condition, That the Grantee of the next Avoidance of an Advowson, should enjoy the same without any disturbance, or claim of the Grantor. 18 An Obligation to perform a Covenant, that the Lessee of a Term shall enjoy it without expulsion, or any Act done, or to be done by the Lessor, shall not be forfeited by Non-fesance 38, 39 — Of an Obligation conditioned to perform an Award. 190 If Tenant for life join the Mice upon the mere Right, it is a Forfeiture. 128 Where Tenant for life is impleaded, if he maketh default, or confesseth the Action, it is a Forfeiture. ibid. If Tenant for life bargains and sells his Land by Deed enrolled, although no Fee passeth, yet it is a Forfeiture. 129 contra 124 Grant. BY the King of the Office of the King's Bench. 19 Recital in Grants of the King. 20 Of omnia bona by an Executor, what passeth? 22 Of a Reversion by a Bishop. 23 Of the Office of a Sheriff. 33 Habeas Corpus. WHere the cause of Commitment must be returned upon it. Where not. 21 Heirs. The second Son shall inherit the Land purchased by his eldest Brother, notwithstanding the Attainder of the Father. 5 Jeofails. WHere upon a Jeofail the Court awarded a Repleader. 19 Indictment. — Quare Clausum A. B. fregit, held good, notwithstanding A. had but a Lease at will of the Land. 6 — De uno Equo for a Gelding, not good; But where Trespass is brought de Equo ellato, and the Jury find a Gelding, etc. it is otherwise. ibid. Upon Stat. 13 Eliz. c. 8. for being a Broker in an usurious Contract, for which he incurred a Praemunire. 32 Upon Stat. 5 E. 6. against P. for drawing his Dagger in the Church against J. S. holden void, for that it is not said he drew it with intent to strike the party. 49 Upon Stat. 8 H. 6. two Exceptions taken to it, but disallowed. ibid. For stopping quandam viam valde necessariam, quashed for want of the word Regiam, and for that the party indicted had not any addition therein. 121 Infant. Makes a Lease for years, and at his full age says to the Lessee, God give you joy of it, the Lease is thereby affirmed. 4 If an Infant, being in Execution, sues a Writ of Error, and is bailed, the Recognisance shall be by his Bail only that he shall appear, and if Judgement be affirmed, that they pay the money, and not render his Body to Prison. 6 Inmates. Who shall be accounted Inmates upon the Stat. of 31 Eliz. 10 Interest. Difference between an Interest and a Limitation. 33 Judgement. Shall not be stayed upon Allegation that one of the Defendants was dead after Verdict, for the Court cannot take notice of it judicially, nor any of the parties have day in Court to plead it, besides the party is not without remedy, for he may have a Writ of Error. 15 If the Court may reverse their own Judgement. Quaere. 60 Reversed for Error in omitting the Costs the Jury gave. 61 Jurors. Where bound by confession of the parties, where not. 56 A Juror before the return of the Panel became a Minister of the Church, and therefore prayed to be discharged according to the privilege of those of the Ministry, but it was not granted, because he was a Lay man at the time of the Panel made. 190 Justice of Peace. One cannot be Justice of Peace by Prescription. 149 Lease. OF a Manor, etc. with all the profits of a Wood, except 40 Trees to the Lessor to take at his pleasure, the Wood is not comprised within the Lease, but the Lessee shall only have the profits, as Pawnage, Herbage, etc. 9 If a man makes a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit, the Lessee cannot thereby cut the Trees, nor do waste. 9 — Made by a Corporation, void for Misnosmer. 11 — Good to maintain an Ejectione firmae. 14 Leases by a Baron contrary to Act of Parliament, void. 17 — By Tenant at will, if a disseisin. 35 Leases made by Prebendaries within the Equity of the Statute of 32 H. 8. c. 28. 51 Leet. Pound breach is not inquirable there. 12 — But excessive Toll is. ibid. Nobleman. SHall be bound with Bail in a Recognizance to render his Body. 6 — By 13 E. 1. if he hath not Goods or Lands, his Body shall be taken in Execution. ibid. Obligation. Forfeited. 18 Outlary. How avoided by Plea in person. 22, 186 Payment. OF Rend before the day by the Obligee, doth not discharge him. 4 Of a Debt generally by a Surety Executor to the Principal, if it shall be as Executor or as Obligor. Quaere. ibid. Plead. In a special Justification in Trover the place of Conversion may be traversed; but where a Justification is general, the County is not traversable at this day. 4 It is no good Plea for the Tenant in a Writ of Entry sur disseisin, to say, that the House in demand is within the City of London, whereof he is a Citizen, and that King H. 3. concessit civibus, etc. quod non implacitentur, etc. extra muros Civitatis, praed. sed illis rectum teneatur infra Civitatem praed. secundum cons. Civit. praed. For he ought to have showed, That the Citizens for their Lands there ought to be impleaded in the Hustings. 13 In Trespass for pulling Hurdles, etc. the Defendant justified by Prescription, to have a free course for Sheep in the place where, etc. and because the Plaintiff erected Hurdles without leave of the Lord of the Manor, the Defendant cast them down prout, etc. the Plaintiff replied of his own wrong, without cause, and held naught, for he should have traversed the Prescription. 17 Traverse of the place in Trover, where good. 22 Special Plea to an Assumpsit, not good, and why. 31 Posse Comitatus. It differs from Posse Manerij. 87 Possessio Fratris. Where it shall not be of Copyhold Lands. 38 Previledge. Denied to the Treasurer of the Records of the King's Bench, and why. 81 Prohibition. If the Parson Libels in the Spiritual Court against the owner of Lands for Tithes which he severed, but a Stranger took and carried away, no Prohibition shall issue, for that he might plead the same matter in bar in the Spiritual Court. 7 To the Spiritual Court to stay a Suit commenced there for Tithes, upon a Prescription showed in the King's Bench. 25 Granted to stay a Suit in the Court Christian, commenced against an Executor by one for a Legacy bequeathed to him by his Father, who willed his Goods should be parted amongst his Children, according to the Custom of London. 12 Upon claim of Property. 150 Quare Impedit. May be brought by Executors to remove a Clerk collated wrongfully in the life time of the Testator. 15 Recognizance. IF a Recognizor of a Recognizance acknowledged before a Master in Chancery, die before it be enrolled, it may be enrolled at the Petition of his Executors. 8 Common Recovery. Feme not party to the Writ of Covenant, not bound by Recovery. 26 Remainder. Where void. 21 Resceit. One prayed to be received in a Formedon, and was ousted of it by the Court. 51 Reservation. Of Rents upon a joint Lease. 27 Difference between a Reservation and a Contract. 29 return. Of the Sheriff, where void. 21 Sale. OF a Bayliwick of an Hundred, is not within the Statute of 5 E. 6. c. 16. 33 Of Goods by the Sheriff upon Execution, where good, where not. 20, 21 Surrender. If Lessee for years take a second Lease from Guardian in Soccage (made in his name) it is a surrender of the first Lease. 7 What shall be said to be a surrender of a Term, what not. 30 Treason. UPon Attainder of Treason, who shall seize the Goods for the Queen. 34 Tithes. Unity no discharge of Tithes. 47 Venire Facias. GRanted de novo, after Verdict, for that the first Venire Facias was of K. only, for that it ought to have been the Vicento de K. & W. 85 Vesturam terrae. He who hath Vesturam terrae cannot dig the Land. 43 — Those who have Lot-Meadow, viz. to change every year according to Lots, have not any Freehold therein, but only Vesturam terrae. 43 Writ. DE fama & gestu, what it is. 40 FINIS.