THE SECOND PART OF REPORTS AND CASES OF LAW, Argued and Adjudged in the COURTS at WESTMINSTER, In the Time of the late Q. ELIZABETH, From the XVIIIth to the XXXIIId d Year of Her Reign. Collected by that Learned Professor of the LAW, William Leonard, of the Honourable Society of Gray's-inns, Esq With Alphabetical TABLES of the Names of the CASES and of the MATTERS contained in the BOOK. LONDON, Printed by the Assigns of R. and E. Atkins, Esquires, for R. Chiswell and Tho. Sawbridge, in St. Paul's Churchyard and Little Britain. 1687. To the READER. I Here present to thy view and study, The second Part of the Reports and Cases, collected and taken in French (by that grave, industrious, and Learned Professor and Practiser of the Common Law, William Leonard Esq sometimes of the Honourable Society of Grays-Inn) in the Reign of the late Queen Elizabeth; which Reports were of such inestimable value, by reason of their authentic Arguments, that they were transcribed by divers Honourable and Learned persons, as may appear by my Epistle to the first part of His Reports: these, together with the first part, being select Cases, by many Eminent Lawyers of this Nation, thought to be worthy the Press. How deserving the Author is of thy candid censure I refer to thy deliberate judgement; Hic labour, hoc opus est: As for the Work it requires totum non mixtum hominem, an entire man, without other diversions. If thou best a representative Warrior, for the lives and patrimonies of thy Clients, I here present thee with a weapon to defend them; and though the Military Profession be very Noble and Honourable, because most dangerous; yet the Profession of the Law, herein challenges precedency, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the Sword is but a servant to Justice, consecrated by the Almighty, to maintain and defend the Law, for if men were just, the Sword might be sheathed: and to speak in the Dialect of Sir John Davies, in his eloquent Epistle to the Irish Reports; We see Heathen Kingdoms subsist without Religion, and you may imagine a Kingdom to subsist without Physicians, as once Rome did, but all men at all times, and in all places, stand in need of Justice and Law, which is the commensurate rule of Justice, and consequently Lawyers, who are the Ministers and Secretaries of Justice, the Queen and Empress of all other Moral Virtues according to the axiom, or Maxim Conciliarii sunt organa Justitiae in corpore Politico. But (Candid Reader) not to defatigate thy clemency, neither to trespass too much upon thy patience with a prolix Epistle, I do here tender these Reports to thy judgement, upon a serious and deliberate consideration, presuming they (as well as the first) may tend to thy use and benefit, in the course of thy study and practice of Law, which is all that is desired. The Names of the Learned Lawyers Sergeants at Law, and Judges of the several Courts at Westminster, who Argued the Cases, and were then Judges of the said several Courts; Viz. A ANDERSON, Lord Chief Justice of the Common Pleas. Anger. Attham, Sergeant at Law, afterwards one of the Barons of the Exchequer. Atkinson, Ayliffe, Justice of the King's Bench. B Beaumond, Sergeant at Law, after Judge of the Common Pleas. Bromley, Lord Chancellor of England. Bacon, afterwards Lord Chancellor of England. Barkley. C Coke, afterwards L. C. Justice of the Common Pleas. Clench, one of the Judges of the King's Bench. Cooper, Sergeant at Law. Clark, Baron of the Exchequer. Coventrie, after Lord Keeper of the Great Seal. D Daniel, one of the Judges of the Common Pleas. Drew, Sergeant at Law. Dyer, Lord Chief Justice of the Common Pleas. E Egerton, Solicitor of the Queen, after Lord Chancellor of England. F Fleetwood, Sergeant at Law, Recorder of London. Fuller. Fenner, Serjeant, after Judge of the King's Bench: and then after Lord Chief Justice. G Gawdy, Sergeant at Law. Gawdy, one of the Judges of the King's Bench. Golding, Sergeant at Law. Glanvile, one of the Judges of the Common Pleas. Gent, one of the Barons of the Exchequer. Godfrey. H Haughton, Sergeant at Law, after one of the Judges of the Common Pleas. Hammon, Sergeant at Law. Harris, Sergeant at Law. Heale, Sergeant at Law. Hobart, after Lord Chief Justice of the Court of Common Pleas. K Kingsmill, Judge of the King's Bench. L Laiton. Leonard. M Meade, Sergeant at Law, after Judge of the Court of the Common Pleas. Morgan, Sergeant at Law. Manwood, Lord Chief Baron of the Exchequer. Mounson, Justice of the Common Pleas. O Owen, Sergeant at Law, after Baron of the Exchequer. P Popham, Attorney General of the Queen, after L. C. Justice of the King's Bench. Periam, Judge of the Common Pleas. Pepper, Attorney of the Court of Wards. Plowden. Puckering, the Queen's Sergeant at Law. R Rhodes, one of the Judges of the Common Pleas. S Snag, Sergeant at Law. Snig, one of the Barons of the Exchequer. Shuttleworth, Sergeant at Law. T Tanfield, Sergeant at Law: after Lord Chief Baron of the Exchequer. Topham. W Wray, Lord Chief Justice of the King's Bench. Windham, one of the Judges of the Common Pleas. Walmesley, Sergeant at Law, after one of the Judges of the Common Pleas. Y Yeluerton, Sergeant at Law, after one of the Justices of the King's Bench. THE Names of the Cases. A ARds and smith's Gaze. SECT. 82 Amner and Luddintons' Case. SECT. 115 Alexander and Dyers Case. SECT. 121 Aldersley and Dupparries Case. SECT. 126 Andrews Case. SECT. 231 Alford and Leas Case. SECT. 145 Ashpernons Case. SECT. 228 Sir Anthony Denneys' Case. SECT. 239 Anonymus. SECT. 8 9 12 13 18 19 22 23 41 44 60 69 85 86 93 135 186 193 196 197 210 211 214 218 221 227 246 247 252 254 259 260 261 272 276 277 278 279 280 285 B Beaumond and Deans Case. SECT. 15 brent's Case. SECT. 25 Barns and Smith's Case. SECT. 28 Baskervile and the Bishop of Hereford's Case. SECT. 66 Backhouse and Spencer's Case. SECT. 68 Braziers Case. SECT. 73 Bardens and Withingtons' Case. SECT. 75 Beaumont's Case. SECT. 79 Brian and Cowsens Case. SECT. 92 Brooks Case. SECT. 111 Bridget Clerks Case. SECT. 113 Bashpools Case. SECT. 123 Bennet and Shortwrights Case. SECT. 124 Big and Clarks Case. SECT. 132 Bows and Vernons Case. SECT. 136 Barefoot and Luters Case. SECT. 148 Brown and Ordinacres Case. SECT. 149 Bedels' Case. SECT. 153 Bostock and Coverts Case. SECT. 174 Berry and Goodman's Case. SECT. 182 Borough and Holcrofts Case. SECT. 195 Basset and Prowess Case. SECT. 200 Barker and Tailor's Case. SECT. 206 Bostwick and Bostwicks' Case. SECT. 238 Beale and Langleys Case. SECT. 257 Brocchus Case. SECT. 264 Bawell and Lucas Case. SECT. 281 C Cranmers Case. SECT. 7 Creswell and Coke Case. SECT. 10 Colshill and Hastings Case. SECT. 20 Clerk and Green's Case. SECT. 34 Clarks Case. SECT. 36 Collet and the Bailiffs of Shrewsburies' Case. SECT. 43 Cobb and Prior's Case. SECT. 46 62 Costard and wingfield's Case. SECT. 58 Carters Case. SECT. 61 Corbets Case. SECT. 88 chaloner Bowyers Case. SECT. 94 Countess of Linox Case. SECT. 95 Curtise and Cattles Case. SECT. 97 Coney and Chomleys' Case. SECT. 157 Collet and Robstons' Case. SECT. 160 Crop and Hamledens Case. SECT. 173 Coney and Beveridges Case. SECT. 181 Crabdels Case. SECT. 199 Case of the Town of Leicester. SECT. 240 Courtney and Killoways Case. SECT. 249 Cooper's Case. SECT. 253 Coniers and Holland's Case. SECT. 270 D Dormers Case. SECT. 6 Devered and Ratcliffs Case. SECT. 33 Daws and Mollins Case. SECT. 105 Dogheads Case. SECT. 156 Davies and Percies Case. SECT. 164 Dean and Chapter of Windsor's Case. SECT. 180 Dunns Case. SECT. 188 Dighton and Clarks Case. SECT. 248 E Edwards and Hallinders Case. SECT. 116 Executors of Sir William Cordell and Clifton's Case. SECT. 185 Edgar and Crispes Case. SECT. 215 F Farrington and Fleetwoods' Case. SECT. 78 Firrell and the Hundred of Bs. Case. SECT. 109 Foskews Case. SECT. 114 Forster and Walkers Case. SECT. 198 Frankwels Case. SECT. 216 Freeman and Drews Case. SECT. 223 Farnams' Case. SECT. 232 Frenches Case. SECT. 253 Foster's Case. SECT. 265 Fuller and Trimwells' Case. SECT. 274 G gregory's Case. SECT. 11 Green and Everards' Case. SECT. 58 George ap Rices Case. SECT. 54 Goddards Case. SECT. 80 Goldings Case. SECT. 96 Gower and others against Daubeny. SECT. 100 Griffins Case. SECT. 102 Grace and Constable's Case. SECT. 155 Gering Case. SECT. 163 Grove and Sparrs Case. SECT. 166 Gerrard's Case. SECT. 205 Gittinson and Tyrrells Case. SECT. 208 Giles Case. SECT. 222 Grace a Bencher of the Temples Case. SECT. 233 Gomersall and Gomersals Case. SECT. 245 H Hind and Sir John Lions Case. SECT. 16 Hartford and Gardiner's Case. SECT. 35 Hall and the Bishop of Baths Case SECT. 83 Hugh's Case. SECT. 84 Herring and Badlocks Case. SECT. 107 Hunt and Somes Case. SECT. 137 Hoopers' Case. SECT. 143 Heals Case. SECT. 154 Holland and Bonis Case. SECT. 168 Hawkins Case. SECT. 171 Harris and the Lord Mountjoys Case SECT. 209 Helyards' Case. SECT. 213 Hoopers' Case. SECT. 226 Hore and Wridlesworths' Case. SECT. 230 Hurlestons Case. SECT. 244 Holland and Drakes Case SECT. 250 Hampers Case. SECT. 262 Humphrestons Case. SECT. 275 Highams' Case. SECT. 287 I Johnson and Bellamyes Case. SECT. 48 Joys Case. SECT. 49 Inchley and Robinson's Case SECT. 57 Sir John Savages Case. SECT. 140 Sir John Southwells Case. SECT. 175 Sir John Sands and Packsall Brocas Case SECT. 217 K Kirkman and Reignolds Case. SECT. 2 Knevet and Tailor's Case. SECT. 144 Kingwell and Chapman's Case. SECT. 189 L Lovelesses Case. SECT. 24 Lord Cromwel's Case. SECT. 39 Lightfoot and Butler's Case. SECT. 27 Leonard Lovelaces Case. SECT. 54 Lucas and Picrofts Case. SECT. 55 Lord of Northampton and Lord Saint John's Case SECT. 81 Lacie and Fisher's Case. SECT. 87 Lawson and Hares Case. SECT. 98 Largesse Case. SECT. 110 Linacre and Rhodes Case. SECT. 117 Lord Howard and the Town of walden's Case. SECT. 184 Lodges Case. SECT. 190 Lord Awldeys Case. SECT. 194 Litchfield Cages Case. SECT. 203 Lord Norths Case. SECT. 219 Lennards Case. SECT. 241 M Machel and Duntons' Case. SECT. 40 Martin Van-Henbecks Case. SECT. 52 Mounsel and Vernons Case. SECT. 64 Morgan and Chandler's Case. SECT. 67 Merry and Lewes Case. SECT. 72 Mecok and Broughton and Davies Case. SECT. 77 Moor and Sir John Savages Case. SECT. 108 Moving and Worleys Case SECT. 122 Marsh and Rainsfords' Case. SECT. 146 Mingay and Earles Case. SECT. 150 Marsh and joan's Case. SECT. 156 Moor and Savils Case. SECT. 176 Sir Moil Finches Case. SECT. 178 Morris and Webbers Case. SECT. 207 Mead and Cheneys Case. SECT. 230 Manwood and Burstons' Case. SECT. 255 Moultons' Case. SECT. 263 Muttons Case. SECT. 293 N Nevil and Coke Case. SECT. 5 Norris Case. SECT. 37 Noons Case. SECT. 90 O Ognel and Paston Case. SECT. 112 Offley and Jonson's Case. SECT. 202 Ordway and Parrots Case. SECT. 269 P Perry and Somes Case. SECT. 30 Povies Case. SECT. 56 Penruddock and newman's Case. SECT. 65 Partridge and Pools Case. SECT. 104 Parker and Burtons' Case. SECT. 127 Piggot and russel's Case. 139 Parker and Harrolds Case. 153 Phillips and Stones Case. 162 Pleadalls Case. 192 Paschals Case. 220 Perchalls Case. 234 Pretiman and Cook's Case. 243 Pains Case. 256 Partridges Case. 266 Q The Queen and Partridges Case. 31 Queen and Jordan's Case. 42 Queen and Lord Lumleys' Case. 106 R Rosse and Morrices' Case. 29 Robinson and Robinson's Case. 38 Rous and Artois Case. 58 Rolson and Chambers Case. 70 Ralph Morris Case. 74 Rymersly and Ropers Case. 120 Ropers Case. 138 Rushtons Case. 167 Sir Richard Buckleys Case. 225 Rook and Dennys Case. 242 Russel and Broker's Case. 258 Richmond and Butcher's Case. 271 S Savacres Case. 4 231 Stewards Case. 21 Salway and Lusons' Case. 47 Sands and Scagnards' Case. 50 Spittle and Davies Case. 51 Smalman and Lanes Case. 76 Seckford and Wolderstons' Case. 103 Sir John Southwells Case. 132 Stainsby and Hales Case. 141 Sands and Hempstons' Case. 142 Scot and Scots Case. 170 Sleds Case. 179 Segar and Baintons' Case. 191 Seots Case. 204 Shrewsbury and the Inhabitants of the Hundred of Ashdon. 212 Scragg and Griffius Case. 273 Stamford's Case. 284 Sidenham and Worlingtons Case. 286 T Thatcher and Damports Case. 2 Thurkettell and Teyes' Case. 26 Tailor and Brounsalls Case. 63 Sir Thomas Bacon's Case. 128 Trusto and Ewers Case. 130 Toley and Windhams Case. 133 Thorp and Tomsons Case. 165 Tomson and Traffords Case. 236 V Veal and Roberts Case. 134 Venables and Serjeant Harris Case. 169 Vicountess Bindons' Case. 201 Vavasors Case. 282 W Werdman and Yates Case. 3 Wingfield and Seckfords' Case. 14 Woodward and Bugs Case. 32 Wrenn and Bulmen Case. 71 Sir William pelham's Case. 89 Western and Wields Case. 91 Wellocks Case. 98 Sir William Walkers Case. 101 Webb and Mainards' Case. 118 Willis and Jermins' Case. 119 Walter against Pery and Spring. 125 Weshbourn and Mardants Case. 129 Williams and Linfords' Case. 147 Wellock and Hamon's Case. 152 Willoughbys Case. 159 Wye and Throgmortons' Case. 173 Wiseman's Case. 183 West and Stowels Case. 187 Wood and Averies Case. 237 Wiggon and Arscots' Case. 267 Winter and Lovedays Case. 268 Y Yates Case. 161 Somers and Sir Richard Buckleys Case. 224 THE SECOND PART OF Reports and Cases OF LAW, Argued and Adjudged in the time of Queen ELIZABETH, from the Eighteenth to the Three and thirtieth Year of her Reign. I. Kirkman and Reignold 's Case. Mich. 30 Eliz. In the Common Pleas. Rot. 30. THE Case was, That a Lease was made unto two, Leases. 1 Cro. 182. Habendum to them, and to two others for four lives, and the longer liver of them; It was resolved by the whole Court, That the two named in the Habendum did not take any thing; and that if the first two in the Premises of the Deed die, that there shall 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: And so it was resolved, 28 Eliz. in the King's Bench, Rot. 509. Hubbart and Windsmore's Case. in Hubbart and Windsmore's Case. II. Thatcher and Damport 's Case. Mich. 32 and 33 Eliz. In the King's Bench. Rot. 19 THatcher recovered against Damport as Administrator of one Zouch, 1 Cro. 145. 215. ib. Error. The Defendant put in Bail, and afterwards judgement was given against the Defendant in this manner: Ideo videtur Justiciariis, quod querens recuperet debitum suum versus, etc. and thereupon a Scire facias was sued against the Bail, Judgement against the Bail. and a good and lawful judgement given against them; And they brought a Writ of Error to reverse the judgement given against them, and assigned Error, because judgement was entered against them before a good and lawful judgement was given against the Defendant himself; For Videtur Justiciariis quod querens recuperet, etc. is not any judgement; and the Court held, that the judgement given against the Bail, aught to be reversed, but that the other judgement should stand such as it is, neither affirmed nor disaffirmed, but the Bail should not cause the same judgement for their discharge to be entered, And afterwards came Thatcher and surmised the nullity of the said judgement, and prayed that judgement might be entered for him in forma juris, & habuit: And now upon this new judgement Damport brought a Writ of Error, and assigned for Error the entry of that new judgement, for before a judgement was entered, tiel queb. and Thatcher proceeded upon it, and had a Scire facias against the Bail, and judgement thereupon given against the Bail: Also the Record was removed by Writ of Error, and this second judgement is merely erroneous, for then there should be two judgements; and they should give judgement upon a Record, which was not before them. Gaudy justice, The Writ of Error is to remove the Record, Si Judicium inde redditum sit, by which if judgement be not given, the Record doth remain unremoved, and then they may well enough give judgement; For the former pretended judgement was no judgement at all, and the Record is not removed, As 4 Eliz. Dyer 206. a Certiorari to remove a Record, capt. in Curia nostra, whereas it was in Curia of the predecessor, the Record is not removed. The former Writ of Error was to remove the Record of the Scire facias against the Bail which might be removed, although the other Record did remain, for they are two distinct judgements. And such was the opinion of the other justices; And afterwards upon advice of the whole Court, the judgement against the Defendant himself was affirmed, but that which was given against the Bail was reversed, because given before judgement given against the Defendant himself. III. Werdman and Yate 's Case. Trinit. 32 Eliz. In the King's Bench. Partition. 1 Cro. 155. 281. WErdman brought a Writ of Partition against Yates and others, who all appeared and confessed the Action, and afterwards brought Error, which was entered, Pasch. 27 Eliz. Rot. 43. and they assigned Errors, and the opinion of the Court was against them, and they seeing it, did discontinue their Writ of Error, and now they sued a new Writ of Error out of the Chancery, Error. directed to the Lord Anderson, being dated 19 Nou. 31 Eliz. containing, That whereas a Writ had been directed to him to remove such a Record, That all the Record is not yet removed; wherefore this was to remove the residue of the said Record; Upon which Writ was sent hither a small parcel of the Record, upon which the Plaintiffs sued a new Writ of Error out of the Chancery, Coram vobis residet, and that was Hil. 31 Eliz. and it was entered upon a new Roll of the same Term, and not upon the ancient Roll, and thereupon new Errors were assigned in the judicial process out of the body of the Record. 1. That the Plea was discontinued for Pone was awarded against three of the Defendants, and idem dies not given to the other two, nor any thing spoken of them. 2. Because there were not fifteen days betwixt the date of the Pone, and the return of it, (scil.) the first day of the return, i. the first day of Essoins, as aught to be by Law. 3. judgement was given that the Defendants should be amerced, where they appear upon the first Process, and thereupon the Plaintiff sued a new Writ of Diminution, one to the Lord Anderson, and the other to the Custos Brevium, And now came and pleaded all the matter aforesaid, viz. the former Writ of Error, the proceeding in it, and the discontinuance of it, and demanded judgement if the Plaintiff should have a new Writ of Diminution, upon which the Plaintiff did demur: Coke, this second Writ of Error is not maintainable: For the first Writ sent to the Lord Anderson, could not be sued out of the Chancery, for it is not a Writ of Error, but a Writ of Diminution: For in the Register there are but two Writs of Error, the first to remove Record, the second Quod coram vobis residet, 2 H. 7. 19 and in the Writ there is not any mention of Error, and therefore it cannot be a Writ of Error, and if there be not any such Writ in the Register, than it is a good argument to say there is no Writ at all, as the Lord Dyer argued in the Lady Hale's Case, 5 Eliz. 262. in Plowden in the Case of the Writ of Escheat: Also it is against all the precedents, that a Writ of Error, Quod coram vobis residet, should be otherwise entered than upon the first Record, and not upon a new Record, and the Writ of Diminution is not an Original Writ, and aught always issue out of the Court where the Writ of Error is depending: And also the party cannot now allege Diminution, i. after a Scire facias ad audiendum Errores, which see 22 E. 4. Diminution. 45. by Hussey: For by the Scire facias ad audiendum Errores, he affirms the Record to be full: So 7 E. 4. 25. After the Defendant in the Writ of Error hath pleaded in nullo est erratum he shall not allege Diminution, for the parties are agreed upon the Record, 28 H. 6. 10. after a Scire facias, the Plaintiff shall never assign Errors in fact, etc. Tanfield contrary, he agreed, that a Writ of Diminution cannot be sued out of the Chancery, but that will not hurt us, for it is idle and utterly void: And when the Record is removed, it is not material how it comes in, so as it be here, for they are both the King's Court, as it is in the common Case of Indictments: and then the Writ of Error is to examine the Record, Quod coram vobis residet, And although the same be in divers Rolls, the same is no matter of Exception; Entry of Records. but if the Roll be entered in a wrong Office it is not good, but if all be in one Office, the misfiling of the Roll will be no hurt: So here, it is not so formal as it ought; yet it is not any prejudice to us. But the great matter is, if the Plaintiff may assign new Errors and have a new Writ of Diminution, two of the Errors assigned in the Mesne Process, but the third is in the Record itself; i. the judgement. And there is no doubt but that a man may have divers Writs of Error, but he shall have but one Supersedeas, and so divers Errors, but one delay: Also it is not a Writ of Diminution which we have sued, for I do not say that it is a thing below, which is not here, but I say that is not a thing below which ought to be, viz. there is not any discontinuance; but the Court awarded that Writ for their satisfaction, for the non esse of the thing shall come on the other side, and 9 E. 4. the Court awarded a Certiorare to inform themselves. And he said that after a Scire facias, the Plaintiff may assign new Errors, Trin. 20. H. 7. Rot. 84. betwixt Edge-Court and London, a Writ of Error was brought against two, and after Errors assigned, one of the Defendants died, before a new Writ of Error could be assigned: But here the first Record is discontinued and determined, for which there is not now any Record which may be objected against us, nor any thing in it: as 20 H. 7. A man avows for a Rent due at such a day, and is nonsuit; Now he may avow for the same Rent, and suppose the same to be due at another day, Estoppell. for he shall not be estopped by the Record upon which he was nonsuit: and so here upon the whole matter the Writ out of the Chancery is not material, and the Roll is not misplaced, but is in the right Office: Also this is not a Writ of Diminution, but a Writ to inform the justices, Wherefore upon the whole matter the Writ of Error will well lie. It was adjourned. iv Savacres Case. Rot. 7. Mich. 31 and 32 Eliz. In the King's-Bench. Error. Post 185. A Writ of Error was brought by Savacre and the Bishop of Gloucester upon a judgement given in a Quare Impedit for the Queen, and Errors assigned. 1. Attachment was awarded against the Defendants in the Quare Impedit, retornable Quind. Pasc. at which day Savacre appeared, and cast an Essoyn; and notwithstanding that, a Distress was awarded against them both, retornable Crastin. Trinit. and this awarding of the Distress was erroneous, for the Essoyn was, as appeareth, to save, etc. and therefore against him no Distress ought to have been awarded: And upon alleging of Diminution the Record of the Essoyn was certified, but the same doth not appear upon the Plea Roll. 2. This Record is, ideo ipsi in misericordia, and so both the Defendants are amerced for their default of appearance 15 Pasch. whereas Savacre was then Essoyned, and so no cause to amerce him. Coke, The Original Writ was sued Mich. 26 Eliz. returned 15 Hillarii, and then both the Defendants made default, for which an Attachment was awarded, retornable 15 Pasc. and then Savacre appeared, and judgement given, quod ipsi sint in misericordia, in which point the Error is apparent: but I conceive that it is not Error, for upon the Attachment the parties ought to put in Sureties for their appearance; and the said Sureties took upon them, that the Defendants and each of them should appear; and if they or any of them make default, they shall be amerced: And so here, this judgement, ideo ipsi in misericodia, doth refer to the Sureties, not to the parties, for the Defendants shall not be amerced until the end of the Suit, and but once only in an Action: which see Book of Entries 464 where there was but one Defendant: and therefore if the amercements shall be referred to the Defendant, than it shall be ideo ipse, not ipsi, etc. And that is the Reason wherefore the Queen, nor an Infant, shall not find Pledges, for no amercement shall be upon their default, therefore it were in vain for them to find Pledges, etc. If the Sureties be amerced where they ought not to be amerced by the Law, yet the Defendant shall not have a Writ of Error thereupon, for he is not the party grieved by the amercement: and upon that Reason it is, if in a Scire facias against the Bail erroneous judgement be given, the Defendant in the Action shall not have a Writ of Error. The awarding of the Distress upon the Roll against both, where one of them only made default, is not Error, especially as this case is: for although one of them was essoyned until the day aforesaid, yet at that day they make default, and so the Distress well awarded against them: and although the Writ was not well awarded, yet when they appear Crastin. Trinit. at the day of the return of the Distress, all mesn defaults in the Process are saved, and so the misawarding of the Distress by appearance after is supplied: as 39 E. 3. 7. The Law requires, that in an Action founded upon the Statute of Praemunire, etc. 27 E. 3. the Defendant gave Garnishment by two Months, yet if the Defendant, not having warning appear, now the Process is good enough: So 9 E. 4. 18. where upon any Process the Defendant doth appear, although the day of appearance be not lawful, yet he shall be put to answer, and see many Cases there to that purpose. And so was the Opinion of the Court in the principal Case. As to the second Error, That this judgement, ideo ipsi in misericordia, shall be reserved to the Sureties only, and not to the party, and that the Defendant shall be but once amerced in one Action; True it is, he shall be amerced but once for one default; but if there be many defaults, the Defendant shall be amerced severally for the several defaults for every offence; and it should be unreasonable that the Sureties should be amerced, and that the Defendant, who is the principal, should be freed: which see in the book of Entries 193. ipsique & plegii sui in misericordia, etc. V Nevil and Cook 's Case. Trinit. 32 Eliz. Rot. 76. In the King's-Bench. IN an Action of Covenant the Plaintiff declared, Covenant. That where it was covenanted betwixt the Plaintiff and the Defendant, That each of Them upon request should be accountable to the other for all the Corn growing upon such a place, and that upon such account the one of them should deliver to the other the moiety of the Corn, or the profit of it: and whereas the Defendant had taken all the said Corn, scil. twenty loads of Wheat, forty loads of Barley, and thirty loads of Pease, growing upon the said Lands, and had been required to render account of the said Corn, which he refused to do: The Defendant traversed the request, upon which they were at issue, and it was hereupon demurred: and it was moved, that the Traverse was not good, but the Defendant ought to say, that the Plaintiff did not require him modo & forma; but the Exception was not allowed, but the Traverse was holden good by the whole Court and judgement was given for the Plaintiff. VI Elizabeth Dormer 's Case. Trinit. 32 Eliz. In the King's-Bench. ELizabeth Dormer was indicted upon the Statute of 23 Eliz. of Recusancy; and Exception was taken to the Indictment, 1 Len. 241. because that these words of the Statute were omitted out of the Indictment, viz. [non habens aliquam rationabilem causam] But the Exception was not allowed; for Wray, chief justice, said, That upon conference betwixt himself and all his companions, it was resolved by them, That those words need not be put into the Indictment, but are to come on the other side. Another Exception was taken to the Indictment, That she being of the age sixteen years refused to come to any Church (contra formam Statut. 1 Eliz. & in malum exemplum, etc. & contra formam Statuti in hujusmodi casu editi & provisi) and the Statute of 1 Eliz. doth not speak of sixteen years, but the same is mentioned in the Statute of 23 Eliz. Fenner was of Opinion, that the last Contra formam Statuti should be referred to the Statute of 23 Eliz. Wray contrary, and that it should be referred to the Statute of 1 Eliz. It was adjourned. VII. Cranmer 's Case. 16 Eliz. In the Common-Pleas. THE Case was, That Thomas Cranmer, 1 Anders. 19 More Rep. 100 1 Len. 196. 3 Len. 20. Dyer 309, 310. late Archbishop of Canterbury, made a Feoffment in Fee to the use of himself for life, without impeachment of Waste, and after his decease to the use of his Executors for twenty years, and after the twenty years to the use of his Son and Heir in tail. And afterward Thomas Cranmer was attainted of Treason, and died, so as he could not make Executors, but died intestate without any assignment. Office Executors, 118. (Note, the limitation was to his Executors and Assigns.) Queen Mary claimed the term limited as aforesaid, and granted the same over, the Heir in tail entered, and Leased the same for years, the Patentee entered, and the Lessee of the Heir of the Tenant in tail brought Ejectione firmae. Manwood. All the doubt of this case is, If the said term was in Tho. Cranmer so as he might forfeit it? And he conceived, that the said term was in Tho. Cranmer, and that he had not power only to dispose of it, but also had possession of it: 11 H. 4. 186. Scire facias 67. And Br. Annuity 17. Such a Grant is good and effectual, and if he do not grant it his Executors shall have it, and yet the term was not limited to him, but he shall have it by implication of Law. 39 E. 3. A Lease was made to one, his Heirs and Assigns during his life, and one year after, the Executors shall have the said term after the death of the Lessee, yet the said term was not limited to him: 7 E. 3. A Lease made for term of live and a year after, in that case the term is conjoined unto the Estate for life by the act of the Grantor himself; and there is a difference when the Remainder is joined to the particular Estate by the act of the Grantor, and by any Purchase, Grant, or any act after: for in the first case the Remainder shall be executed, but in the latter not. A Lease for life, the Remainder in tail, the Remainder to the right Heirs of Tenant for life; he in the Remainder in tail dyeth without issue in the life of Tenant for life, now the Fee is executed to the Freehold, etc. and the Heir shall not have a Scire facias where such conveyance is made by Fine. See 17 E. 3. 29. In a Cui in vita, A. Executor of B. came and said, that the Land in demand was Leased to the said B. for the term of his life, the Remainder for the term of eight years to his Executors, and prayed to be received, and they were received. See 19 E. 3. A Lease was made for life to A. the Remainder to his Executors for twelve years: the Less for life died, the Executors died, there it is agreed, that the Executors of the Executors should have an Action of Covenant, if they be ousted. And see 20 E. 3. Quid juris clamat 31. A Lease is made to A. for life, and if A. dieth within twenty years, that his Executors shall have the term until the end of such term: and in a Quid juris clamat against A. he saved his term by protestation, which proves, that the term was quodam modo in him. 49 E. 3. A Lease for life unto A. the Remainder to his Heirs and Executors for twelve years, and afterwards the Lessor confirms the Estate of the Lessee for life, to have and to hold the Land to him for life, and thirteen years over to his Executors; the Lessee deviseth the term, and the Devise holden good, which proves, that the term was in him. Harper, justice, contrary: Many cases put before may be answered; for in the said case the term is limited to begin immediately, and not by way of Remainder, or after the death of the Lessee, and then the Executors in the life of the Testator are not known, nor able to seek any thing by the name of Executors, and therefore that term shall take its beginning in the life of the Testator: But in the Case at Bar the term is limited to the Executors after the death of the Testator, Co. 1 Inst. 54. b. and the Executor takes the term as a Purchasor, and he hath it not as a Chattel of the Testator, but as his own Chattel. And in the Case of Receipt before cited, the Executor shall be received as Executor, for the term was limited to him as Executor. And here the Statute of 27 H. 8. 1 Cro. 666. is to be considered, for it extends as well to Chattels as to Freehold, and the Statute doth execute the possession to the use limited for years, as for life, or in Fee: and here the use is limited to the Executors, and not to the Testator, and therefore it shall not be otherwise transferred. And therefore if a man seized in the Right of his Wife discontinueth, and afterwards the Discontinuee makes a Feoffment in Fee unto the use of the said Husband and Wife for their lives, in that case the Wife shall not be remitted; for the Statute doth transfer according to the use, and the use was limited for their lives, therefore they shall not be in of another Estate. Dyer, chief justice, to the same intent: The Feoffor, i. Thomas Cranmer, limits all the uses, and therefore he shall not have that which he hath limited; and it is in the nature of a Reservation, which shall be taken strictly and very strong against him who made the Reservation: and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors, Co. 13. Rep. and not to him who limited it, and therefore the possession shall be executed to the Executors, to whom the use was limited; and this term shall not be Assets in the hands of the Executors: And he said, That he had seen a Record, 2 H. 8. setting forth, That A. having Feoffees to his use, devised, that his Feoffees should sell his Lands, who did accordingly; now the money coming by the sale shall be Assets, &c. but it is not so limited in our case, therefore it shall not be Assets. A Lease is made to A. for life, the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed, for it is not conveyed by the Grant of the first Grantor, but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years, they entermarry, Waste is committed, the Lessor brings an Action of Waste, he shall recover as well the Estate for years as for life. A. Leaseth unto B. for life, the Remainder unto the Executors of A. for years, the Remainder over in Fee to a stranger, the Remainder for years is good, for the Lessor cannot limit such an Estate to himself, and the Executors shall take the Estate as Purchasers, and the term shall be in abeyance until the death of A. There was a case before the Lord Brook in the time of Queen Mary, viz. A Lease was made for life, Proviso, that if the Lessee dieth within the term of sixty years, that the Executors shall have the Lands, as in the Right and Title of the Lessee, pro termino totidem annorum, which do amount to the number of sixty years, to be accounted from the said Indenture. The Opinion of the justices of the Common Pleas upon the Case was, That the term was not in the Lessee for life. So this future term in the principal Case was not in Tho. Cranmer. But see that Case cited by Dyer, reported by himself 4 Ma. 150. and there the opinion of the Court was, That the same was not a Lease, but a Covenant. And afterwards in the principal Case judgement was given for the Plaintiff, That the future term was not forfeited by the Attainder of Cranmer. VIII. 7 Eliz. In the Common Pleas. THE Case was, Dyer 317. b. 318. a. J. S. is seized of a Close adjoining to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years, rendering Rend, J. D. puts in his cattle into his own Close, who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant, Distress for Rent. J. S. distrains them for his Rent: It was said by Manwood, justice, that the distress was not well taken; Doctor & Student 150. 1 Inst. 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto. for there is a difference when the come upon the Lands of another in the default of the owner of the , as by escape or stray, and where in the default of another: For in the first case the Lord may distrain them before they be levant and couchant; but in the latter case not: Also a Rent reserved upon a Lease for years, is a new Rent, and not like unto an ancient Rent, due upon an ancient Tenure betwixt the Lord and the Tenant: For, for a Rent reserved upon a Lease for years, Roll 1 part 672. acc. Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the , before they be levant and couchant upon the Lands, although they come upon the Lands by escape, estray, etc. Dyer, The Lord cannot distrain the which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant: and yet the signory is favoured for the antiquity of it: But here is new Rent, not in respect of any signory, but of reservation upon a Lease for years, and therefore no distress before the be levant and couchant upon the Lands, Quod Harper & Mounson concesserunt, and judgement was given accordingly. IX. 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was, In a Writ of Entry in the Per, against A. and B. A. pleaded several tenancy: It was holden by Dyer, chief justice, that it is not any plea. Harper justice: In Assize it is no plea; for here the Land is not in demand: Several Tenancy where no good Plea. but here it is a good plea, and the Demandant ought to maintain his Writ; Manwood, In no action founded upon disseisin is this good: For although the Demandant by policy will bring his Writ against the Tenant of the Land, and another who he will name in the Writ, upon trust and confidence, and that he will not agree with the Tenant of the Lord in Dilatories, for the Tenant of the Lands shall not be received to plead Dilatories; Yet in that case several Tenancy is no plea for the Tenant, but in a Formedon, or other such like action, which is not grounded upon disseisin, if the Writ be brought in such manner as above, the Tenant by policy, that he may have the view, and other reasonable delay, may plead several Tenancy, and so enforce the Demandant to maintain his Writ, but contrary in the Case at Bar, and so it was adjudged per Curiam. X. Creswell and Coke Case. 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke, and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds, Gifts, etc. upon the second clause of the Statute, Debt. viz. That all parties, or privies to such fraudulent Deed, willingly putting in ure, avowing, etc. as true, simple, Custom. and given bona fide, shall forfeit, etc. And shown that one A. held of the Plaintiff 12 acres of customary Lands, and died seized, And that by the custom of the Manor, Heriot. the Lord was to have for a Heriot, the best beast whereof his Tenant died possessed, and farther showed, that the said A. in his life time, and a little before his death, being possessed of 30 Horses, of the value of 200 Marks, gave the said Horses to the Defendant, with intent to defraud the Plaintiff, and other Lords of their Heriots, and that he went to the Defendant's house to seize his Heriot, and the Desendant than strained the said Horses, by reason of the Gift aforesaid, for which the Action is brought, To which the Defendant pleaded, that the Plaintiff had seized one of the Horses nomine Herioti: and as to the rest he did demur in Law. Mounson justice, was of opinion, that the Plaintiff should recover the whole 200 Marks, although he was defrauded but of one Heriot only: as if a man be indebted to me in 20 l. and he makes such a fraudulent Deed of his goods, of the value of 2000 l. although I be defrauded but of the 20 l. yet he shall forfeit the whole value of the goods so conveyed. Manwood justice, was of opinion, that the Plaintiff should recover the value of one of the Horses; and the Gift by the first branch is void, as to the Plaintiff but for one of the Horses only, and not for all the Horses contained in the Gift, for no more than one Horse was fraudulently given: And as by the first branch the Gift is void but for one Horse, so by the second branch the penalty extends but unto one Horse, for the fraud extends but to one Horse, and no farther. And this Action is not a popular Action, but extends only to the party grieved. And of the same opinion was Dyer chief justice, and he confessed the Case put by Mounson justice, where the Debtor of 20 l. makes a fraudulent Deed of his goods of 3000 l. etc. for the person of the Debtor is chargeable, and peradventure, goods of the value of 2000 l. may be put in execution for 100 l. but here the person is not charged for the Heriot. Barham Sergeant, the fraud goes to the whole (scil.) to all the Horses: for although the Plaintiff is to have but one Horse, yet he is to have the choice of all the Horses, which of them he will have for the best Beast, and because the choice goes to all the thirty Horses; and by this fraudulent Gift, he is defrauded of his election, which of the Horses he would have, therefore he shall have the value of the whole thirty Horses. But Dyer and Mounson said to the Sergeant, set a price upon any of the thirty Horses, as the best Horse in your election, and demand the value of that Horse as forfeit by the Statute, and then your election is saved to you. XI. Gregory 's Case. 19 Eliz. In the common Pleas. IN the Assize against Arthur Gregory and his wife at Warwick, Assize. 1 Len. 86. Key's steds case count. before Dyer and Barham, justices of Assize, the husband made default, and the Assize was awarded by default: and the wife came and prayed to be received, and the opinion of the said justices was, that Receipt lay in that Case; as in other cases of Praecipe quod reddat; Receipt of the wife. and therefore the wife was received. And now Dyer in Banco, demanded of his companions, the other justices if the Receipt was well granted: And by Manwood and Mounson, justices, clearly the Receipt lies: For although that the Statute doth not give Receipt, but where the Lands in demand are to be lost by such default of the husband, and in an Assize the Land shall not be lost by the default of the husband, but the Assize shall by taken by default, Yet because the husband and wife lose their challenges to the jury, because the Assize is taken by default, It seemed to the justices, and also to the Preignothories, that Receipt did well lie in this Case. XII. 19 Eliz. In the Common Bless. IN an Action upon Escape, the Plaintiff is nonsuit: It was holden, No costs upon Nonsuit in an Action upon Escape. that the Defendant should not have costs, by the Statute of 23 H. 8. Note the words of the Statute, i. (Upon any Action upon the Statute) for any offence or personal wrong, supposed to be done immediately to the Plaintiff, notwithstanding this Action, is Quodam modo, an Action upon the Statute, i. by the equity of the Statute of West. 2. which gives expressly against the Warden of the Fleet; yet properly it is not an Action upon the Statute: for in the Declaration in such actions, no mention is made of the Statute, which see in the Book of Entries, 169, 171. And here is not supposed any immediate personal wrong or offence 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 West. 2. An Action upon the Case did lie for an Escape: and so Dyer, Manwood, and Mounson, costs are not given in this Case. And by Manwood, upon the Nonsuit, in an Action upon the Statute of 8 H. 6. the Defendant shall not have costs, for that is not a personal wrong, for the Writ is dissesivit, which is a real wrong. Mich. 19 and 20 Eliz. In the King's-Bench. Prescription. Townsend Table 96. Hern. 709. Tit. Trespass ib. 803. 1 Cro. 898. Rectory quid. Jones Rep. 230. IN Trespass for breaking of his Close, the Defendant justified, to have a way by prescription over the Land in which the trespass is supposed, for carrying of such Tithes Usque ad Rectoriam de D. from such a place: And it was holden by Wray, and the whole Court, that the plea was not good; for in pleading such a way, there ought to be set forth, terminus a quo, & terminus ad quem, And this word Rectory, which ought to be terminus ad quem, is incertain; for a Rectory is a thing which consists of divers things, as Glebe, Tithes, etc. But he ought to have said, the Parsonage House, or other place certain: And afterwards it was showed to the Court, that the said Rectory did consist only of Tithes, and so there is not any place certain, as Parsonage House, Barn, etc. to which the Tithes have used to be carried, for the Tithes have used to be let to farm to divers persons, who have carried such Tithes to their own houses, and the Defendant is one of the Farmers of the Tithes. Wray, If your case be such, you are to plead in this manner; That J. S. is seized in Fee of the Rectory of D. and that time out of mind, he, and all those, etc. have used for them and theirs formerly to have a way to carry their Tithes from such a place over the Land where, etc. unto such a high way, and name a way, which is the next to the place where the trespass was done; the which cause the Defendant pleaded so according to the direction of the Court. XIV. Wingfield and Seckford 's Case. Hillar. 20 Eliz. In the Common Pleas. Debt for Rent. Co. 3. Rep. 24. IN Debt for arrearages of Rent upon a Lease for years, the truth of the case was, That before any arrearages incurred, the land Leased was evicted upon an Eigne Title; The Defendant pleaded, that he owed him nothing: If now he might give in Evidence the said eviction was the Question; and it was the opinion of Dyer, Manwood, and Mounson, Plead. that he could not, but he ought to have pleaded it especially; and they denied the opinion of the Preignothories, who said, that the Defendant ought to have pleaded the Eviction, and concluded judgement of Action; and not rein luy doit, and the Court advised the Defendant to plead accordingly. XV. Beaumont and Dean 's Case. Hillar. 20 Eliz. In the Common-Pleas. Dower. Dyer 361. IN Dower brought by the wife of Beaumont, Master of the Rolls, in the time of E. 6. The Defendant said, that he himself, before the Writ brought, did assign a rent of 10 l. per ann. to the Demandant, in recompense of her Dower, upon which the Demandant did demur in Law; and the cause was, because the Tenant had not showed what Estate he had in the Lands at the time of the granting of the Rent, as to say, that he was seized in Fee, and granted the said Rent; so as it might appear to the Court upon the plea, that the Tenant had a lawful power to grant such a Rent, which was granted by the whole Court, and the demur holden good. XVI. Hind and Sir John Lion 's Case. Hill. 20 Eliz. In the Common-Pleas. IN Debt by the Plaintiff against the Defendant as Heir, Dyer 124. a. 3 Len. 70. 3 Len. 64. he pleaded, That he had nothing by Descent but the third part of the Manor of D. The Plaintiff replied, Assets; and shown for Assets, that the Defendant had the whole Manor of Dale by descent, upon which they were at issue: and it was given in evidence to the jury, That the Manor was holden by Knight's-service; and that the said Sir John, the Ancestor of the Defendant, Devises. by his Will in writing devised the whole Manor to his Wife, until the Defendant, his Son and Heir, should come to the age of 24 years; and that at the age of his said Son of 24 years, the Wife should have the third part of the said Manor for term of her life, and her Son should have the residue: and that if his said Son do die before he come to his age of 24 years, without Heir of his body, that the Land should remain to J. S. the Remainder over to another: The Devisor died, the Son came to the age of 24 years; and the Question was, If the Son hath an Estate-tayl, for then for two parts he is not in by Descent? And by Dyer and Manwood, justices, here is not any Estate tail, for no tail was to rise before his said age, and therefore the tail shall never take effect; and the Fee-simple doth descend, and remain in the Son, unless he dieth within the age of 24 years, and then the Entail vests with the Remainders over. But now having attained his said age, he hath a Fee-simple, and that by Descent of the whole Manor, and a general judgement shall be given against him, as of his own Debt: And an Elegit shall issue forth of the moiety of all his Lands, as well those which he hath by descent from the same Ancestor, as any else; and a Capias lieth against him. But Manwood conceived, That if general judgement be given against the Heir by default, in such a case a Capias doth not lie, although in case of false Plea it lieth. Dyer contrary; and the Writ against the Heir is in the Debet & Detinet, which proves, that in Law it is his own Debt: and he said, that he could show a precedent where such an Action was maintainable against the Executors of the Heir. XVII. Hil. 20 Eliz. In the Common-Pleas. A Man made a Lease of Lands by Indenture, Roll. 1. part. 870. to begin after the expiration of a Lease thereof made to one Duffam; and in an Action of Covenant brought by the second Lessee against the Lessor, Covenant. the Lessor said, That there was no such Duffam in rerum natura, at the time of the supposed Lease made to Duffam: it was argued, Estoppell. That this Plea doth not lie for the Lessor, for he is estopped to say against the Indenture, That there is no such Duffam, etc. And also if no such person was, than the first Lease was void, and then the second Lease shall begin presently, which Manwood and Mounson granted, and by Manwood, the Defendant shall be estopped by the Recital of the first Lease, to say, That there was no such Duffam: And although the common Ground is, That a Recital is not an Estoppel, yet where the Recital is material, as it is here, it is otherwise, for here the second Lease is to begin upon the expiration of the recited Lease; and therefore in this case it shall be an Estoppel. XVIII. Mich. 20 Eliz. In the King's-Bench. Action upon the Stat. of 5 Eliz. for Perjury. 3 Len. 68 IN an Action upon the Statute of 5 Eliz. for a Perjury by three, the Plaintiffs declared, That the Defendant being examined upon his oath before Commissioners, If a Surrender was made at such a Court of a Copyhold to the use of A. and B. two of the Defendants? The Defendant swore there was no such surrender made, etc. Exception was taken to the Declaration, because that the certainty of the Copyhold did not appear upon the Declaration: for the Statute requires that in such Case the party grieved shall have remedy, so as it ought to appear in what thing he is grieved; quod fuit concessum per totam Curiam. Another Exception was taken, because the Action is given in this Case to the party grieved, and it appeareth upon the Declaration, that the Surrender, in the negative deposing of which the Perjury is assigned, Abatement of Writ. was made to the use of two of the Plaintiffs only, and then the third person is not a party grieved, for he claims nothing by the Surrender; and therefore forasmuch as the two persons grieved have joined with the party not grieved, the Writ shall abate against them all, which Wray and Southcote granted. XIX. 19 Eliz. In the Common-Pleas. Action upon the Stat. of 13 E. 1. of Winchester. 2 Inst. 569. IN an Action upon the Statute of Winchester 13 E. 1. against the men of the Hundred of A. Barham, Serjeant, took Exception to the Declaration, because it appeareth upon it, that the half year after the Robbery is not yet come; for by the said Statute it is ordained, that the Country have no longer time than half a year after the Robbery done, within which time facent-gree of the Robbery, or respondent the body of the Misfeasors. And here the Action is brought within the half year: And for this cause the Declaration was holden to be insufficient by the whole Court. And the Lord Dyer spoke much in commendation of that Statute being made for the public benefit of the whole Commonwealth: for the Law intends when a Robbery is done, That if the Country will not pursue the Malefactors, that some of them are Receivers or Abettors of the Felons. Manwood, justice, said, When I was a Servant to Sir James Hales, one of the justices of the Common-Pleas, one of his Servants was rob at Gadds' Hill, within the Hundred of Gravesend in Kent, and he sued the men of the Hundred upon this Statute; and it seemed hard to the Inhabitants there, that they should answer for the Robberies done at Gadds' Hill, because Robberies are there so frequent, that if they should answer for all of them, that they should be utterly undone. And Harris, Serjeant, was of Council with the Inhabitants of Gravesend, and pleaded for them, that time out of mind, etc. Felons had used to rob at Gadds' Hill, and so prescribed, and afterwards by award they were charged: And note, That the Case was, that three men were rob, and they three joined in the Action against the Inhabitants. XX. Colshil and Hasting 's Case. 20 Eliz. In the Common-Pleas. AN Extent was sued forth upon a Statute-Merchant by Colshil against Hastings, for Lands in his possession in the County of Southampton: The Sheriff put the Plaintiff the Conusee in possession of parcel of a House and of Lands, and suffered Hastings to continue in the rest of the House, Execution executed. 1 Leon. 145. by reason whereof Hastings kept the possession of the whole, and held the Conusee out; The Conusee, to the intent that he might have full and perfect possession of the whole, caused the Sheriff, that he did not return the Writ of Extent, upon which it is entered on the Roll, Quod Vice-Comes nihil inde fecit, nec misit breve. Whereupon issued an Alias extendi facias, upon which the new Sheriff did return, That in the time of the old Sheriff, a Writ of Extent issued forth, etc. and that the said Sheriff had extended the Lands, by reason whereof the now Sheriff could not extend them upon the new Writ. It was moved for the Conusee, That the return was not good; For although that the Lands be extended by the first Writ, Yet because it is not returned, it is not any Execution in Law, nor could the Conusee have an Assize, which Manwood, justice, denied: Loare Preignothory, Our course is, when no return of such Writ is made, to grant an Alias, at the prayers of the party, and to enter upon the Roll, That the Sheriff upon the first Writ, Nihil inde fecit, nec misit breve. And that was taken by the Court to be a good and lawful course in such Case; for upon such surmise, that no Execution hath been done, and that upon such entry on the Roll, an Alias Breve might be well awarded. And afterwards, this second Writ of Extent was not filled by order of the Court: And note, that the new Sheriff was examined upon his Oath by the Court of the Action, and he said, that he made the return by the advice of Master Plowden, who told him, that he might safely return, that the Land was formerly extended, and although that the said Extent was not returned; yet it is an Execution for the Party. Manwood, Certainly this is an insufficient return: But, perhaps Master Plowden did not know of this entry in the Roll, as aforesaid, for now it appeareth upon Record, that no Execution was done. If this entry had not been, I should well agree with Master Plowden, that the same is an Execution for the party, although it be not returned. XXI. Steward 's Case. 19 Eliz. In the Common-Pleas. THE Case was, A. seized of certain Lands in Fee, granted a Rent-charge out of the same to another, and afterwards aliened the Lands to a stranger. The Grantee in a Replevin did avow for the Rent, and the other party pleaded, that nothing passed by the Deed: It was holden by the whole Court to be no plea, nor can any issue be joined upon it, but the Plaintiff ought to have said, That he did not grant by the Deed: For the same is a Rent newly created, and which had not his essence before the grant, and it cannot properly be said, That nothing passed by the Deed, but not of a thing that is in esse, but of things not in esse, That he did not grant, is the most natural issue, for a thing not in esse, non potest transire. XXII. 19 Eliz. In the King's-Bench. IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis, Trover and Conversion. the Defendant pleaded, That the goods were bailed to him, to bail over to J. S. to whom he had delivered them, absque hoc, that he did convert them to his own use, per venditionem hominibus ignotis. It was moved by Egerton, that that matter is not traversable, quod Wray concessit, for the conversion to his own use, is the cause and ground of the Action, and not the selling of the goods, etc. XXIII. Mich. 19 and 20 Eliz. In the Common-Pleas. A Man was outlawed in the Court of Hustings of London; and the Hustings in which the judgement of Outlawry was given, Outlawry. was holden two Weeks next after the last Hustings; so as there was but two Weeks betwixt the two Hustings, whereas commonly the Hustings is holden but every three Weeks, and now the Sheriffs of London were in doubt, if they might safely return the Outlawry, without danger of an Action upon the Case brought against them by the party outlawed; It was holden by Dyer and the whole Court, that they ought and might safely return the said Outlawry: for the Lord Dyer said, That there is a Record in the time of R. 2. whereby it appeareth, that in London they might hold their Hustings every Week, if they pleased, and afterwards he commanded Mosley and Christopher, Secondaries, to return the Outlawry, which was done accordingly. XXIV. Lovelesse 's Case. 19 Eliz. In the Common-Pleas. Debt upon Recognizance. 1 Cro. 608. 817. LOvelesse, Serjeant, brought a Scire facias upon a Recognizance, and had judgement upon default, Quod habeat Executionem, and afterwards he brought an Action of Debt upon the said judgement, and exception was taken to the Action: for that he ought to proceed upon the judgement given upon the Scire facias, and aught to sue Execution according to the said judgement by Elegit, or Scire facias, but not by Capias; but the Exception was not allowed; For the Recognizance is a judgement in itself, and an Action of Debt will lie upon it; without any judgement in the Scire facias; And Debt lieth as well upon the judgement, as upon the Recognizance itself; and so was the opinion of the whole Court. XXV. Eliz. In the Common-Pleas. Brent 's Case. Dyer 340. b. THE Case was, That Robert-Brent being seized of Lands in Fee, made a Feoffment thereof unto the use of himself and Dorothy his Wife, for their lives; and if he do survive his said Wife, then to the use of him the said Robert and such a Woman as he should after marry, for the jointure of such Wife; the Remainder over to a stranger in Fee: And afterward (with the privity and assent of the Feoffor) he in the Remainder and the Feoffees join in a Feoffment to divers persons, (Note, both Feoffments were after the Statute of 27 H. 8.) and afterwards Robert Brent, the Husband, levied a Fine to the same uses, and took a second Wife, and died: The second Wife, by the assent and commandment of the first Feoffees, after the five years passed after the Fine, entered to raise the uses mentioned in the first Feoffment limited to the second Wife. This Case was argued by all the justices of the Court of Common-Pleas: and Mounson, justice, conceived that the Entry of the Wife was lawful, and that without the assent or commandment of the Feoffees. An use may be limited to one who is in esse, or in posse; and the second Wife here was in esse when the use was limited, and she was also in posse; for by possibility the first Wife might die, and also by possibility the Feoffor might take to Wife this Woman. A Gift to one who is not in esse or in posse, is void. A Gift to J. S. & primogenito filio suo, if he have a Son alive at the time of the Gift, he shall take jointly with his Father; but if not, Co. 1 Rep. Shelley's Case. yet after his death he shall take by way of Remainder. A use is nothing else but a trust and confidence, and was not any Inheritance by the course of the Common Law; for no mention is made of uses in our ancient Books, when the Common Law greatly flourished, as in the time of E. 1. and E. 3. and also uses are not subject to the grounds of Law: And although divers Statutes have been made for the avoiding of divers policies for the gaining of Lands in Mortmain, yet the makers of the said Statutes could not find out any such conveyances to uses. See the Statute of Religiosis, 7 E. 1. and see 29 H. 8. tr. Mortmain 39 There is a glance at uses 44 E. 3. 25. b. the words are, En foy demist, etc. and the Feoffees sued Livery. And the first mention of Uses in our Books is 30 H. 6. Br. Title to Uses 49. and the same case Devise Fitz. 22. In the time of E. 4. Uses were more frequent; for 5 E. 4. 8. divers cases concerning Uses are there put, etc. and afterwards 1 R. 3. a new Statute was made for the benefit of Cestuy que use: and afterwards the Statute of 4 H. 7. for the Wardship of Cestuy que use: and afterwards the Statute of 27 H. 8. which made an end of Uses. These Uses at the first were of no value, but afterwards by continuance Communis error fecit jus, so as they were taken and esteemed as Inheritances: And they cannot be more fitly resembled to any thing, as to Copyholds, which at beginning were but Tenors at will, and were not known at the Common Law, but now they are in the same reputation in Law as Inheritances: and they are not guided by the Rules of the Common Law, but by the intent of the parties: which appeareth in this Case at Bar to be, That she who should be the second Wife of Robert Brent, the Feoffor, should have the Lands ut supra: and therefore this Use shall rise, and the Statute of 27 H. 8. shall draw the possession after it. Manwood, justice; As to the commencement of Use, it hath been as long as mankind hath been guided by Reason: and although no mention is made of Uses in our ancient Books, yet that is no argument that Uses have been but of late times. Uses were not common, therefore were not at all, is a Non sequitur. As long as Wills have been, Trust and Confidence hath been; and also as long as Marriage hath been. See the Writ of Causa Matrimonii prolocuti: and see the Statute of Marlbridg, cap. 6. there is mention of falsa Feoffamenta: And note, by other words of the said Statute there was a Trust, but it was a false trust to deceive another; and therefore such a misshapen Trust is not called a Trust by the said Statute, but a Collusion. And Mr. Littleton saith, That Cestuy que use shall be sworn upon Inquests, which was not enacted by any Statute, but practised and put in ure by reason of Common Law. And I have seen divers ancient Deeds of Uses: and in ancient time, you shall not find that any would purchase Lands to himself alone, but had two or three joint Feoffees with him; and he who was first named in the Charter of Feoffment, was Cestuy que use, although that no Use was declared unto him upon the Livery, and so it was known by the occupation of the Lands. And the reason why no mention is made in our ancient Books of Uses, is, because men were then of better Consciences than now they are, so as the Feoffees did not give occasion to their Feoffors to bring Subpoena's to compel them to perform the Trusts reposed in them. As to that which hath been said, That Uses have taken their beginning after the Statute of West. 3. For before the said Statute, if a man had made a Feoffment in Fee without declaring any use, it should be to the use of the Feoffee, because there is a sufficient consideration betwixt the Feoffor and Feoffee to raise the use, i. the signory created by the Law betwixt them: but now by the said Statute such consideration is taken away; and then upon such Feoffment, without consideration or declaration of use, it is to the use of the Feoffor himself; the same is no reason against them: for although that an Use implied was not before the said Statute of West. 3. yet a Use expressed was; and if before the said Statute the Feoffor had declared an Use; the same had been good: as at this day, a Gift in tail, or a Lease for life, is made to another use, yet notwithstanding that the Law doth create a Tenure upon the Lease or Gift, yet the use expressed shall be good. And although Uses are of such Antiquity, yet they are not directed by the Rules of the common Law, but by the Will of the Owner of the Lands: For the Use is in his hands as clay is in the hands of the Potter which he in whose hands it is may put into what form he pleaseth: And notwithstanding that now the possession be executed to the Use, yet the property and quality, as abstracted from the possession, shall not be drowned in the possession: and so for as much as Uses were by permission of Law guided at the wills of the parties, so also shall be the possessions: And so because, That an use, as abstracted from the possession, might have been well limited to the Wife which should be, notwithstanding that at the time of such limitation such a one was not in esse, in the same manner it shall be now, when the possession is presently executed to the use: and so in this case, the second Wife shall be capable of this use, according to the will and direction of the Owner. If a Feoffment in Fee be made to the use of B. for life, and if A. before such a day shall pay 10 l. to the Feoffor, then to the use of the said A. for life, the same is a good use to begin upon the said condition; and yet if it had been limited in possession, it had been otherwise: and that an Use may begin upon a contingency, see the case 27 H. 8. 5. A Covenant is made by Indenture betwixt A. and B. that the Son of A. shall marry the Daughter of B. upon which B. pays 100 l. to A. and the said A. doth covenant, that if the said marriage doth not take effect, that then the Feoffees of the said A. shall suffer the said B. his Executors and Assigns, to have the issues and profits of certain Lands, until B. his Executors and Assigns, shall be contented and satisfied of the sum aforesaid by the said A. his Executors or Assigns, there, if the marriage doth not take effect, upon such contingent, the use shall rise to B. And see 30 H. 8. Br. Feoffs to Uses 50. A. covenants with B. that then B shall enfeoff A. of the Manor of D. then B. and his Heirs shall be seized of the Manor of D. to the use of the said A. and his Heirs: Now if A. enfeoffeth B. ut supra, then, etc. vide librum. And here in our case, the second Wife doth not hold jointly with her Husband, for their Estates do not begin together, for the Husband is in of his ancient Estate which he had during the first marriage, notwithstanding the words of limitation to the said Husband and his second Wife, but she shall take by way of Remainder. Harper, justice, Uses begun about 18 E. 2. after which time there was such a general liking of them, that they were anew used, but they did not come into common practice before the time of King Henry the sixth, when the great contention fell out betwixt the two great Houses of York and Lancaster, at which time Uses were in great estimation for the safety of Inheritances. Afterwards, Uses by practices became mischievous, and prejudicial to the public justice of the Realm, and to many particular persons; for some timentes implacitari, conveyed their Lands secretly to uses, so as he who had right knew not against whom to bring his action: and for that, divers Statutes have been made to enable the Subject to implead the pernor of the profits, 4 H. 4. 7. 11 H. 6. 4. 1 H. 7. And as to the making of the Statute of 27 H. 8. the truth is, that the King was displeased for the loss of Wardships, and other injuries done to him; for which cause he complained to the judges of the defect of the Law in that case who therefore shown unto the King the causes of those injuries and losses to the King; and farther showed to the King, That if the possession might be joined to the use, all would go well, and all the injuries, wrong, and loss, which came to the King by reason of such Uses, Wills, and secret Feoffments, would be avoided: For which the King commanded his Council to frame a Bill to that purpose, and present it to the House of Commons in the 24 year of his Reign, but it was then rejected; and the King at that time would have been contented, that the fourth part of the Land only should descend: and from that time the King stayed farther proceed in the said cause until 27 H. 8. at which time it took effect: And their cure was to pen the Statute so precisely, that nothing should be left in the Feoffees, but that the whole Estate should be executed by the Statute, so as the said Statute did utterly take out all from the Feoffees. Whereas it hath been said, That a Use hath been as long as any Marriage hath been, and so conceived upon the Writ Causa Matrimonii prolocuti, the same is not any reason; for in that Case there is not any Confidence or Trust: for if the marriage doth not take effect, the woman shall have her Writ de Causa Matrimonii prolocuti. In Conveyances we are to respect two things, the form, and the effect of it; and in all cases where the form and the effect cannot stand together, the form shall be rejected, and the effect shall stand. A Lease for life is made to a Feme sole, she takes Husband, the Lessor confirms to both of them; the Husband cannot take any Estate presently according to the words of the Confirmation; but because the Will of the Lessor is, that an estate shall accrue to the Husband, he shall have it as the Law will, by way of Remainder. So Lands are given to an Abbot and a secular man, the form of the words purport a joint Estate, but that by Law cannot be; and therefore they shall take as the Law will, rather than not at all. In our case here, The limitation of the Use cannot be pursued precisely according to the words, which are, viz. If the Husband over-live his said first Wife, then to the use of the said Husband and his Wife which shall be; which in words is a joint Estate: and therefore the words shall be construed, After the death of the first Wife, unto the use of the Husband until he marrieth, and afterwards to the use of him and his second Wife, in which case they shall take jointly. Dyer, chief justice, As to the beginning of Uses, See Bacon's Reading upon this Stat. he conceived that the same was immediately after the Statute of Mortmain, at which time all their shifts then in practice were found out: which see, the Statute of Mortmain, 7 E. 1. Stat. de Religiosis: for which cause they were after driven to find out other shifts not provided for by the Statute, which were espied by the making of the Statute of 15 R. 2. cap. 5. and in that Statute these words, Behoof and Use are used; which is the first place those words have been used in our Law, and yet long time before that Statute Uses had been in practice, as appeareth in the Exchequer, 34 E. 3. the which in the time of Queen Mary, when the said Record was showed in the Exchequer to the justices, the effect of which Record was, That Walter de Chirton, who was Customer of the King, became indebted to the King in the sum of 18000 l. and with that the King's money had purchased in the name of his friends, to defraud the King, many Lands, and took the profits of them; those Lands so purchased were extended to the use, and for the King, in payment of his Debt, as well as if Walter de Chirton himself had been seized of them, and that by the advice of the Chancellor and the chief justices. Now Uses by tract of time have grown in credit, so as Cestuy que use have been sworn in Inquests, and by the Law they might justify the maintaining of their Feoffees when they had been impleaded, which they could not have done if they had not more interest in the Lands than strangers: and they (Uses) have been in such reckoning and account since, that an Use hath obtained the name of an Inheritance, and is now reputed amongst the Estates of Lands in our Law; and therefore we say in Speeches, and in penning of Statutes, Estates in possession, and Estates in use: and a Use cannot be limited to Parishioners, no more than the Land itself; so as there is a great affinity betwixt the words, Lands and Use. It is to be granted, That the Statute of 27 H. 8. doth divest all out of the Feoffees, yet it doth not divest it before that the use be vested in Cestuy que use; for the words of the Statute are, That the possession shall be executed in such manner, quality, and degree, as was the Use; therefore the vesting of the Use aught to precede the execution of the possession to it. And he was of opinion, That this future Use in the principal Case limited to the second Wife did remain in the Feoffees at the first, but that they had destroyed it by their Feoffment; for the second Wife at the time of the Feoffment was not known, and therefore it shall now accrue: and he was also of opinion, That this limitation to the second Wife was void at the beginning; for the second Wife was not a person able to take, when the Estate and Use limited to the first Wife was determined, and therefore she shall not take at all: and if such an Estate had been limited in possession, it should not have vested, no more than now. Mounson, justice; When the Feoffor and the Feoffees join in a Fine of that Land, within which the use in future is wrapped, he conceived, That the Use being in abeyance and consideration of the Law, could not be touched by the Fine. It is to be confessed, That an Use may be discontinued: See 4. H. 7. 18. A Feoffment made to the use of A. for life, and after to the use of B. in tail, etc. A. makes a Feoffment in Fee, and dieth, the same is a discontinuance of the other Uses: and see 27 H. 8. 29. And in our Case, the Use might arise without any Entry of the Feoffees; for the Use is not discontinued, but the Feoffees are barred by the Fine: And he was also of opinion, That this Use might take effect without any Entry, and take effect according to the limitation. Manwood, This Estate which is limited in use to the second Wife, because it cannot vest in her because not known, the Feoffees are yet content with it, and this Use is to grow out of their Estates at the seasonable time: Then when they join in a Feoffment, their Estate which was the root of the Conveyance, and the Uses which are the branches, spring not till she dieth; and therefore if the Estate of the Feoffees, which is the root of the Uses, be destroyed by alienation of the Land before the Uses have their being, as in our Case it is, because that then the second was not known, no use can afterwards rise, for by the Feoffment they are destroyed, and also every possibility of them. But if the Uses had been in esse, so as the persons to whom they are limited are known, than the Statute shall execute the possession to such uses. And as to that which hath been objected by my Brother Mounson, That the Law shall keep and preserve the Use, and that notwithstanding any thing done by the Feoffees at its due time it shall rise: That cannot be; for the Statute of 27 H. 8. doth not speak of such Uses as this in our Case, but of such Uses only, of which one may say, such a use is limited to such a person and such to such a person, etc. and such Uses are only executed by the Statute. It may be demanded, What Estate the Feoffees have in the Lands until such uses be executed? It may be answered, A Fee simple determinable, as the Lord hath when he entereth upon his Villain Donee in tail: And I conceive, That this use was not in Custodia Legis, quia de minimis non curat Lex: and the use was such a thing of which the Law took no knowledge; and in case of an Estate in possession, such an use in abeyance should be bound: As a Lease for life unto A. the Remainder to the right Heirs of B. A. suffers a common Recovery in the life of B. who afterwards dieth, and afterwards A. dyeth, the Heir of B. is bound, for he had not right at the time of the Recovery. This Fine levied by the manner shall not destroy the uses limited to the second Wife; for as to the Feoffees, they have nothing to do with the Lands to transfer any Estate against the former limitation; for the Statute leaves nothing in the Feoffees, but vests all in Cesty que use, and that which cannot vest in him to whom it is limited, shall return to the Feoffor: As if I make a Feoffment in Fee to the use of myself for life, and after to the use of my second Wife, all the Fee is now in me, and when I take a second Wife, than the Feoffees shall be seized to the use of such Wife in Remainder for her life: but in the Case at Bar, the Feoffees at the time when this second Wife was in esse, had not any thing in the Lands, for they had departed with all their Interest before by their Feoffment and Fine. Note, That by the first Feoffment the use was limited to D. the first Wife of the Feoffor, for term of her life, the Remainder in tail to A. Brent, the Remainder in Fee to one Broughton, and all these uses were executed by the Statute; but these persons were not parties to the Livery, but only the Feoffees, which had not any thing: Then when they make their Letter of Attorney to make Livery of seisin (not being seized of the Land) the Attorney only is a Disseisor, and so nothing passed from the Feoffees, if any right had been in them: and for another reason nothing passed by this last Conveyance out of the Feoffees, for the parties to the latter Conveyance had notice of the use, and so it appeareth by the second Indenture, the which makes mention of the first uses, etc. Dyer, Here in our Case, the Founders of these uses, i. the Feoffor and the Feoffees, have an intent to overthrow these uses, for at the Common Law the Feoffees might do it of themselves; As if the Feoffees had made a Feoffment in fee in consideration of Money to others who had not notice of the uses, now the uses are gone, and the second Feoffees in such Cases were seized to their own uses. I well know, That by this Feoffment all is devested out of the Feoffees, which might vest in the person to whom the use is limited; but here this use which was limited to the second Wife, could not upon the limitation of it vest in any person; and therefore it shall remain in the Feoffees who are put in Trust with it, and therefore have interest in the Lands until all the Trusts be performed: and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee, and the interest which the Feoffees have in the interim, until the execution of all the uses, is a Fee-simple determinable; for the whole interest is not devested or driven out of the Feoffees until the whole Trust be accomplished, i. until all the uses limited upon the Feoffment are executed, and have their full perfection. And whereas it hath been alleged on the other side, That upon the second Feoffment nothing passed out of the Feoffees, for which it shall not be said in Law their Livery, but that the Attorney shall be said the sole Disseisor; As to that I conceive, That whatsoever was lost in the Feoffees passed by that Livery. If he in Reversion upon an Estate for life makes a Charter of a Feoffment, and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes, etc. if Livery be made by force thereof, the Fee-simple shall pass: And he cited a Case which was argued before all the justices of England, reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abbey, after which the Reversion was granted to the Countess of Richmond for life, after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick, who made a Feoffment of all to certain persons, to the use of his eldest Son and his Wife for her jointure, with a Letter of Attorney to make Livery and seisin; the Attorney made Livery accordingly, and by that Feoffment and Livery, it was adjudged, that the Fee-simple did pass: So in our Case, upon this second Feoffment, a Disseisin is done to D. the first Wife, and yet the right of the Feoffees doth pass thereby; and although it shall not be taken in Law their Livery, yet it shall be adjudged their confirmation, because they have joined in the Deed, and that shall bind their right to establish the same in the new Feoffees, as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor: And as to that which hath been objected, that because at the time of the Feoffment, the Feoffees had not any thing, etc. and therefore nothing shall pass: and they have likened to the Case, where the Father is disseised, and the Son and heir doth release to the Disseisor, the same shall not bind the heir after the death of his Father: The same is not like our Case; for there is a great difference betwixt a Release and a Feoffment; for if the Son disseise the Father, and maketh a Feoffment in Fee in the life of his Father, notwithstanding that he had not any right at the time of the Feoffment, yet he is bound. XXVI. Thurkettell and Tey 's Case. Trin. 29 Eliz. In the King's-Bench. Rot. 342. 1 Cro. 110, 111. IN Debt by John Thurkettell against Edw. Tey, and Mary his Wife, Executrix of Robert Thurkettell, the Case was, That Agnes Thurkettell, Mother of Robert, the Testator, devised certain Lands to Robert, and afterwards devised 40 l. to the Plaintiff, John, upon condition, that the said John, Cum requisitus esset acquietaret, & retaxaret praedict. Roberto omnes actiones reals & personales, querelas, etc. praedict. 40 l. per dict. voluntat. legatis tantummodo exceptis; Agnes died, Robert made two Bonds to John, The first was endorsed to pay 20 l. parcel of the said Legacy, within a year after the death of the said Agnes, so as the Plaintiff release according to the will of the said Agnes. The second Obligation was with the same condition, to pay 20 l. residue of the said Legacy, within two years after the death of the said Agnes, upon condition to release, ut supra, and all this matter was pleaded in bar; And farther, That Robert required the said John to make the Release, etc. which he refused, and they were at issue upon the request, and it was found for the Plaintiff; i Quod dict. Robert. non requisivit, etc. upon which Verdict judgement was given for the Plaintiff; upon which the Defendants brought Error, because it appeareth upon the Record here, quod Billa praedict. prosecuta fuit infra duos annos post mortem dict. Agnet. & sic ante diem solutionis: For the second Bond, see 46 E. 3. 28. by Finchden and Persay, and see there, by Persay, That if my Writ be brought before the day of payment, and doth depend in suit till after the day of payment, that my Writ is made good; for at all times the Defendant was my Debtor. And afterwards in the principal Case the judgement was affirmed in the Exchequer-Chamber: and note, that the day of payment did incur, pendent the Writ. XXVII. Lightfoot and Butler 's Case. 29 Eliz. In the Exchequer. IT was said in this Case by the Solicitor General, That if one holdeth of the Queen, as of her Manor, he shall not have the privilege of the Exchequer for that cause; But if the King grants Tithes, and thereupon reserveth a Rent, nomine decimae, and a Tenure of him, there he shall have the privilege: The principal Case was, Co. 4. Inst. 118, 119. that one of the parties claimed the Lands in question as his Freehold, but holden of the Queen, as of such a Manor; and the other claimed it as Copyhold, holden of the same Manor; And the Freeholder did suggest in the Exchequer, That the demands of the Manor are not indifferent. Clark, Baron, If it be so, this Court shall have jurisdiction. Manwood, If the matter pass against you wrongfully, wherefore may you not have an Assize? And the Case of Beaumorris was cited (but I remember not to what purpose) i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry; and they and the Chantry Priest made a Lease for years by Indenture, in the end of which was this Clause, In cujus rei testimonium, tam the Priest, quam the Mayor and Commonalty have put their common seal, and it was moved that there was not any seal for the Priest, for he could not have a common seal with the Mayor and Commonalty. Clark, Twenty men may seal with one seal, and they may also seal with one seal upon one piece of Wax only, and that shall serve for them all, if they all lay their hands upon the seal together. Manwood, They may all seal with one seal, but upon several pieces of Wax. Gent, when many are parties to a Deed, the words are Sigilla omnia; which cannot be aptly said in this Case, where all seal upon one piece of Wax. XXVIII. Barns and Smith 's Case. 29 Eliz. In the Exchequer. EManuel Barns, Executor of Barns, late Bishop of London, 3 Len. 171. brought Debt for arrearages of Rent, reserved upon a Lease for years, of certain Mines demised to Smith, i Mines called Argil, and Mines called Greenbourn; and it was against the Executors of Smith. The Defendant pleaded, as to parcel non detinet, and as to the other parcel of the arrearages, That in the Indenture of Lease, there is a Covenant, That if it shall happen that the said Lessee be hindered, Quo minus Mineriis, praed. gaudere possit; That then so much Rent should be deducted anno, to the value of the Mine, that he could not enjoy, etc. And he said, that he was hindered, Quo minus gaudere potuit Mineriis praed. etc. and issue was joined, that the Lessee could not enjoy, etc. and it was found for the Plaintiff. It was moved by Coke, in arrest of judgement, That here is not any place shown where these Mines were, so as it doth not appear from what place the Visne should come; as if in an Action (as here) the Plaintiff declares of a Lease made of Lands, called R. in such a County, the same is not good. The issue here is, Non potuit fodere in praed. Minera de Greenbourn, for the space of seven years and an half, from whence shall the Visne come for trial of it? Not from Durham where the Lease was made; for no affinity or nearness is betwixt the place where the Lease was made and this issue. But if the issue had been, That the Lessor had not any thing in the Mines at the time of the Lease, that might be tried where the Lease was made: Another exception was, because that the plea is; Quod non potuit fodere, in 3, 4, 5, 6, 7, 8. dimidio, 10, & 11. and that appears to be seven years and a half, and the jury find that he could not dig, per spatium septem annorum tantum, without speaking of the half year, and so they have not given a full Verdict: And as to the first Exception, it was said, If a thing be alleged in pleading which is issuable, and there is not laid down any place of it, although that no issue be joined upon it, yet because he hath prevented the other of his plea to it, judgement given in such case shall be reversed: and so it was rated, betwixt Matthew and Stansham: So upon the Statute of Usury, the Informer charged the Defendant, that by way of corrupt bargain he hath received so much, and doth not show the place, although no issue was joined upon it, but they were at issue upon another point, yet if judgement in such case be given, it shall be reversed. And in all Actions upon the Case, where Request is necessary, and the Plaintiff ought to allege it; the place of the Request must be showed: and he said, That such issue was to be tried where the Mines leased are; and here no place is alleged, where the Mines are, but only in the County of Durham; and yet a Visne of the City of Durham hath tried the issue, which ought not to have been, but the Visne ought to have come, De Corpore Comitatus. Clark, Baron, If the issue be joined upon taking of the profits, it shall be tried where the Land is, but Non debet or detinet, where the Lease is made. Coke, The issue is, Non potuit fodere, and that is local; therefore it shall be tried where the Mines are. Manwood, Non potuit fodere, Non potuit gaudere, are not local; but Non fodit, Non gavisus fuit, is local, and shall be tried where the Mines are: and here it is not showed how he was hindered to dig, etc. and the issue is to be de postatia, non de actu. Tanfield, as to that which Coke hath said, That the Visne in this Case shall come, de corpore Comitatus, the same is not so, for such a Visne shall never be, but where the issue is upon Nul tiel vill hamlet, or place known: In another Case the trial shall be, de corpore Comitatus, as in a false imprisonment the Defendant justifies, that the common voice and fame was, that the Plaintiff committed such a Felony, etc. The Plaintiff traverseth the common voice and fame, there the Visne shall be, de corpore Comitatus, 11 E. 4. 4, and 5. and see also 25 Eliz. the Case of Gynne and Constantine reported now in Coke, 6. part Dowdale's Case, 48. As to the defect in the verdict for the half year, the Record is not so; for the Record is, dimidio anni decimi, & undecimi, and so two half years make a whole year, and so there is but seven years in which the disturbance is supposed to be done. See as to the Visne, de corpore Comitatus, 22 E. 4. 4 Visne 27. Another Exception was taken, because that the Declaration is, That the Lease was made at Durham, in Comitatu Dunelm. and doth not say also in Selberg, for such is the name of the County Palatine; but to that it was said, That every Writ of Execution which goes into the County Palatine, is directed Episcopo Dunelmensi, & Cancellario suo, quod det in mandatis Vicecom. suo, etc. And Durham was called Selberg in ancient times, and the name of the County Palatine there, is commonly Dunelm. & Selberg. and their pleas there entered; Placita coram Justiciariis de Dunelm. & Selberg. but the same is amongst themselves only, and all directions from hence to them are Episcop. Dunelm. without mention of Selberg, and a Precedent was showed to the Court to that purpose and intent. Manwood, Levied by distress, and issint rain arere shall be tried where the Lease was made: Clark, That is true, for by the (Issint) the plea before is waved: And see 8 H. 5. 10. Where an issue is to be tried in Lincoln, or such a Town, which is a Franchise, the Ven. fac. shall be of Lincoln, etc. and not the vicineto de Lincoln; for then the jury shall be as well of the County adjacent, as of Lincoln itself, which the Sheriff of Lincoln cannot do: but a Venire facias de suburbiis of Bristol was awarded good: And if in the case at Bar, the defendant had pleaded, that the Defendant had entered into part of the Mines, and so suspended his Rent, upon which they are at issue; that, by Manwood, shall be tried by a jury, de corpore Comitatus. The issue here is, If the Defendant might enjoy those Mines, Secundum veram intentionem dimissionis predict. and that is referred to the Devise which was made at Durham, and there it is well triable. And afterwards, at another day it was holden, That all the issues are Jeofailes; but as to the want of place, the same was holden to be a material Exception. See the Case of Mynes, Plowd. 337. Exception was taken to the Information, because it is not laid down there is what Town or Hamlet newland's lay; and it was holden, the same had been a material Exception, if the Defendant had demurred upon the Information, in which case there is no trial by jury, etc. and he said, Misnosmer shall be tried where the Writ is brought, etc. So Ne unque administer as Executor, etc. Manwood, Here the Lease is said to be made at Durham, in a place certain; if now there be not any other local thing said which might draw the trial elsewhere, it shall be tried at Durham where the Lease is made: An Infant makes a lease for years, rendering Rend, and afterwards reenters, and avoids his Lease by reason of his nonage, and Title is made against him by the Lease, upon which he pretended nonage, it shall be tried where the Lease was made, and afterwards judgement was given for the Plaintiff. XXIX. Ross and Morrice 's Case. Pasch. 30 Eliz. In the King's-Bench. EDward Ross was Plaintiff in a Replevin against Edward Morris, 1 Cro. 108, 109. and George Manly Defendants, who made Conusance, as Bailiffs to Jerom Weston. The Plaintiff declares, of the taking of two Geldings, 20 Decemb. 29 Eliz. at Nayland, in the County of Suffolk, in a certain place called Nayland-Court-Meadow. And the Conusance is that the place where was a Freehold of the said Jer. Weston, etc. The Plaintiff in bar of the Conusance shown, That long time before, Sir Christopher Danby was seized of 30 acres of Meadow in Nayland, whereof the place where, etc. and Leased the same by Indenture to Thomas Calton, 19 Maii, 31 H. 8. Habendum from the Feast of the Annunciation, 1553. for the term of 45 years; Who, 1 E. 6. assigned his Interest to Edw. Ross, the Plaintiff's Father, who, 1 Maii, the said 1553. entered, and 11 Eliz. granted his Interest to Bamford and Mascal, who entered and were possessed. Sir Christopher Danby died seized of the Reversion, 13 Eliz. and the same descended to Thomas Danby his son and heir: 14 Eliz. Mascal died, Bamford, 15 Eliz. granted to the Plaintiff, Habendum from the 17 of March 1583. for three years, which expired 26 Eliz. Bamford entered, and afterwards Thomas Danby granted the Reversion to Edw. Rockwood in Fee, to which the said Bamford Attorned; and the Plaintiff by force of the said Lease,, put in his , etc. The Plaintiff Replicando said; That long time before that Danby had any thing, Jeofry, Lord Scroop, had issue of his body, Henry, Lord Scroop, and died; And that one John Guntwarby was seized of the said Manor of Nayland, whereof, etc. in Fee, by his Charter, 25 E. 3. gave to the said Henry, Lord Scroop, the same, Et haeredibus corpore suo exeuntibus, who had issue Stephen, who entered, and died seized, having issue John, who entered, and died seized, having issue Thomas, who entered, and 3 H. 7. suffered a Common Recovery to the use of himself and his heirs, The Recoverers enfeoffed, Thomas seized also of many other Lands, and had issue, Ralph, Jeofry, Alice, Elizabeth and Margery, and afterwards died seized. Ralph Lord Scroop entered, and thereof did enfeoff divers persons unto the use of himself, and Eleanor his wife, for their lives, and the heirs males of the said Ralph; and afterwards, the said Ralph being possessed of the said Charter of entail made, ut supra, by Guntwardy, 7 H. 8. Devised that the Feoffees should be seized of the said Manor of Nayland to the use of himself, and Eleanor his wife, for their lives; and if they died without issue of the body of the said Ralph, the said Jeofry then living, that then the Feoffees should be seized to the use of the said Jeofry, (being his Uncle) for his life, and after his decease, ad usum Rectorum haeredum in perpetuum secundum antiquam Evidentiam inde ante factam; with an averment, that the said Ralph, at the time of the said Devise, and of his death, was possessed of the Charter of Entail made by the said Guntwardy: and that the said Charter was the most ancient Evidence of the said, concerning the said Manor. Ralph died without issue possessed of the said Charter by which the Feoffees were seized of the said Manor of Nayland to his use for life, and after to the use of the said Jeofry for life, and after his decease, of the right heirs of the body of Henry, Lord Scroop, lawfully begotten, by reason of the said Devise, and the said Charter, and of the residue of the Manors, to the use of the said Jeofry and his heirs; Eleanor died, after whose decease, the Feoffees were seized of the said Manor of Nayland, to the use of the said Jeofry, right heir of the said Henry, Lord Scroop, of his body begotten, and of the other lands to the use of the said Jeofry in Fee: Jeofry died without issue, by which the Feoffees were seized to the use of the said, Alice, Elizabeth and Margery, Cousins and heirs of the body of the said Henry Scroop, etc. And of the heirs of the bodies of the said Alice, Elizabeth and Margery, lawfully begotten, by reason of the said Devise and Charter, as to the said Manor of Nayland, and of the other Manors to their use in Fee: And afterwards the said Alice took to husband, James Strangways, who had issue, Thomas: Elizabeth took to husband, Fitz Randolph, who had issue Elizabeth, Dorothy, Agnes, Alice: Margery took to husband, Danby, who had issue, Sir Christopher Danby, named in the Bar, and afterwards all the said husbands and their wives died, by force of which the said Feoffees were seized of one part of the said Manor of Nayland in three parts to be divided, to the use of the said Thomas Strangways; and of another part, to the use of the four daughters of the said Elizabeth, and her husband Fitz Randolph, and of another such part to the use of the said Christopher Danby, and of their heirs in Tail; and of the other lands to the use of them in Fee, in degree of Coparcinary; Elizabeth, the eldest daughter of Fitz Randolph, took to husband Shirley; Dorothy her sister took to husband, Eshe: Agnes took to husband, Maynel, and Alice took to husband Dranfield. Thomas Strangways had issue, James, and died. And afterwards partition was made, by which, to James Strangways were allotted lands in Kent, and agreed that the Feoffees should be seized of the said lands to the use of the said James and his heirs, and to no other use. To Shirley, and Elizabeth his wife, lands in Essex were allotted and agreed upon the partition, that the Feoffees should be seized to the use of them, etc. in Fee, etc. And to Danby the said Manor of Nayland, in tail, by reason of the Devise and Charter, aforesaid, as to the said Manor of Nayland, and of other lands in Fee. And afterwards, 23 E. 8. notice was given to the Feoffees of the said partition, and averred that the partition was equal, etc. and that the Feoffees were seized to the use of the said partition, until 27 H. 8. and confessed the Lease made by Danby to Calton, and all the assignments set forth in the Bar to the Avowry, and farther showed, That Thomas Danby entered upon Ross the Plaintiff, and enfeoffed Rockwood, who enfeoffed Weston. Coke, for the Plaintiff, The Case is no more; but where a man hath issue, a son and a daughter by several women, and Deviseth his Lands to his son, and the heirs of the body of the Father lawfully begotten, in which case, if the Son dieth without issue, the Tail is extinct, and the Daughter shall never have the Land, for she doth not take by way of Reversion or Remainder, and she doth not take in possession, because the possession was in Jeofry who was the Heir of Henry, etc. And these Cases were vouched; 1 Roberge's Case, 2 E. 3. 1. to Tail: John Mandevile took to Wife Roberge, and Mandevile gave land to Roberge, & haeredibus ipsius Johannis quos ipse de corpore praedict. Robergiae procreaverit; there the Book is, That the Formedon was, Quae M. dedit Robergiae & haeredibus dict. Johannis quos ipsae de corpore dictae Robergiae procreaverit; Et quae post mortem praefat. Robergiae, & R. filii & haeredis dict. Johannis Mandevile, & haeredis ipsius Johannis de corpore dicto Robergiae per dict. Johannem procreate. etc. and the same Writ awarded good, which Coke denied to be Law. And he cited the Case of Dyer, 4 and 5 P. and Ma. 156. A. gives Lands to one for life, the Remainder thereof rectis haeredibus masculis de corpore dict. A. legitime procreate. remanere inde rectis haeredibus dict. A. who hath issue two Sons, and dieth; A. dieth, the eldest Son hath issue a Daughter, and dieth without issue male: And he conceived first, That in this case the limitation of the Remainder in Tail to the right Heirs of the body of the Donor is void, for the Donor cannot make his own right Heir a Purchasor, without departing with the Fee-simple of his person: But admitting the limitation is good, he said we are to consider, If this entail to the Son, once vested and commenced in the possession of the Son, when he dieth without issue male, The Estate be spent, or that the same shall go to the younger Son? And he said, that it was the opinion of Dyer in that case, That the younger Son was inheritable to the said Estate-tail: as in the Case of Littleton 82. where the condition is, That the Feoffee shall give the Lands to the Son and Heir of the Husband and Wife, and to the Heirs of the body of the Father and Mother lawfully begotten: and the Husband and Wife before any such Gift die, having issue, and afterwards the Feoffee gives the Land to the Son and Heir of the Husband and Wife, and to the Heirs of the body of the Father and Mother begotten, the condition is well performed: and if the eldest Son, to whom the Gift is made, dieth without issue, the youngest Son shall inherit: And in a Formedon in the Reverter, upon such a Gift the Writ shall be, Et quae post mortem of the eldest Son, ad ipsum reverti debet; because the Husband and Wife obierunt sine haerede de corpor. suis inter eos exeunt. And such was also the Opinion of Saunders. But Brook, Brown and Catlin were clear contrary; And he said, that Bendloes Sergeant, who reporteth that Case, doth affirm, That judgement was given in that case, That the Estate-tail was spent, and that the Daughter should have the Lands, and not the second Son: and so he said, That in the Case at the Bar, the Estate-tail was spent: But he said, That he conceived that in the principal case at Bar there is not any Estate-tail at all, because the words (upon which the Estate-tail is conceived) are incertain and too general, viz. [secundum antiquam Evidentiam,] for there might be many ancient Evidences, for the words may extend to Evidences which cut off the Estate tail, as well as to the Entail of Guntwardy. He also argued, That the Partition was void; and then the Lessee had a good interest for certain parts of the Lands, for Partition cannot be made of an Use: and he said, that he agreed, That Partition betwixt Husband and Wives of Lands, if it be equal, should bind the makers, because they are compellable to make Partition of them; but contrary of an Use, for that they are not compellable to do: Also, in the principal Case, the Land entailed is allotted to one of the Coparcenors, which is not good but during the Coverture, and afterwards void; and then the Lease is void but in part, and so the Conusance is not good. Atkinson contrary; and he said, I conceive, that by words of Relation a Fee may pass without the word Heirs. See 39 Ass. 12. The Father seized of Lands in fee, doth enfeoff his younger Son in fee, and the Father continues the possession of the Lands, claiming to hold them at the will of the Son; and the Son coming into the Town where the Lands do lie, in the hearing of his Neighbours saith to his Father, You have given to me these Lands, naming them; As fully as you have given them to me, I give them back to you again: and the same was holden to be a good Gift to the Father: 43 E. 3. 22. The King seized of a Manor, to which an advowson is appendent by Escheat or Conveyance, gives the said Manor as entirely as such a one held the said Manor before the Escheat or Conveyance, the Advowson shall pass without special mentioning of it: And so here in our Case at Bar; This Will hath reference to the ancient Evidence, and it shall be as strong as if he had set down the special words of Entail; and to ancient Evidence before the Entail it cannot extend, for then a fee should pass, and then the Devise should be void, because to his Heir; and the word Antiqua Evidentia shall have reference to the Charter which was made by Guntwardy, for that was an ancient Evidence made two hundred years past: and he cited the Case of 40 E. 3. 8. the Provost of Beverley's Case, and conceived that the Estate was not spent, for that the Estate-tail was in Jeofry, as the fee was in him. Lands are given to the Father for life, the Remainder to the Son in Tail, the Remainder to the right Heirs of the Father; the Father dieth, the Tail and the fee are in the Son; but yet after the death of the Son without issue, the Lands shall be in the Brother's Son by descent, and not as Purchasor. And in our Case, Jeofry was in in the Tail, as right Heir of Henry; and if Jeofry dieth without issue, his Brother of the half blood shall have the Lands, as in the Case before cited of 40 E. 3. but that shall be in Tail by force of the Devise. And he said, That in this case here, the Partition was made good enough, although it were of Lands in use, for a man might contract for an Use without Deed: 11 H. 4. Partition 156. Partition of an Advowson without Deed: and that is by reason of the privity betwixt them, and because they are compellable to make Partition: and in our Case they are compellable by Subpoena in Chancery to make Partition; and notwithstanding that the Lands entailed be allotted to one Coparcenor only, and the fee to the other three, yet thereby the Partition is not void, but voidable: As an Exchange by Tenant in tail is not void, but if the Issue in tail accept of it, it shall bind him during his life: So here; and also by the death of the Husbands the Partition is not void, but voidable only. Clench, justice; How shall the Heir be said seized of the Lands entailed, which was allotted to his Father and Mother after acceptance and agreement? Atkinson, Of certain part as Issue in tail, and of other parts by force of the Partition and acceptance, Quaere of that: for if it be not of the whole as Issue in tail, than the Lease is not void, but for so much whereof he was seized in tail, and then the Lessee is Tenant in common with Weston, and then the Conusance is not good. Cooper, Serjeant elect; Here wants certainty, for the words of reference are too general, and therefore void, ad usum rectorum haeredum, without showing of the Donor or of the Donee; and they are not helped by the subsequent words, secundum antiquam Evidentiam ante hac factam, for that also is incertain; for it appeareth upon the Record, That there are divers Evidences of the said Lands, as the Charter of Gift, the Recovery, and the Conveyances made 4 H. 7. and which of them is intended by the Devise, non constat: and the said defect is not helped by any of the Averments; i. That the Devisor was possessed of the said Charter of Entail at the time of his death; and it is also not to the purpose, for it may also be, that he was possessed of other Evidences as ancient as the said Charter of Entail: It is said, that there is no other ancient Evidence of the Lord Scroop, but it is not averred That there was not other ancient Evidences of the said Lands. But admit that the limitation be good by that reference, yet there was not any Estate-tail, for every Estate-tail ought to be limited in certainty, which see in the Statute of West. 2. secundum formam in Charta Doni manifesto expressam, etc. and here it doth not appear upon the words of the Charter, if the Estate-tail be limited to the Heirs of the Donor, or unto the Heirs of the Donee? and he said, Admit that the same is an Estate-tail, than the Question is, If Jeofry be a Purchasor? and if he be, then by his death without issue the Estate-tail is spent: And he said that the Estate for life in Jeofry is drowned by the Estate-tail limited to him, for they are united together. Egerton, Solicitor-General; Reasonable and favourable construction ought to be made of this Devise according to the intent of the Devisor: As 35 Ass. 14. Lands are given to B. and his Heirs, if he hath issue of his body; and if he die without issue of his body, that the Lands shall revert to the Donor and his Heirs, the same is a good Entail; and upon the death of the Donee without issue, the Donor shall re-enter: And so here, although that [rectorum haeredum] be incertain words, yet the same is supplied by the subsequent words, viz. secundum antiquam evidentiam. As, where the King grants to a Mayor and Commonalty such Liberties as London hath, the same is a good Grant: 2 H. 7. 13. 1 Leo. 245. And he conceived, That this Estate-tail shall be said to begin in Henry, although he was dead before, and that all his Issues should inherit it, and that it should not be determined by the death of Jeofry without issue; and in proof thereof he vouched the Case before cited, Littl. 81, 82. for in that case the condition could not be holden to be performed, if the Heir to whom the Gift was made in facto should be in by purchase, and so the Estate-tail spent by his death without issue: and also he vouched the Case of one Shelley, That although the Heir took that which was not ever in his Ancestors, yet he did not take it as a Purchasor, but as in course of a descent; and he also cited Robridge's Case. And afterwards, the same Term, by award of the Court, judgement was entered for the Plaintiff, for the incertainty of these words [secundum antiquam Evidentiam] to what Evidence it should refer; and also [rectorum haeredum] without showing whose Heirs, i. of the Donor, or of the Donee. And Wray, chief justice, said, It shall be intended upon this Will, That the meaning of the Testator was, That the Lands should go unto his Heirs according to the Law, according to all his Evidences which he had of his Lands, and that is a Fee simple; and it shall not be intended, That the Testator had such a special remembrance of one Deed made two hundred years before, viz. 25 E. 3. XXX. Perry and Some 's Case. Mich. 30 Eliz. In the King's-Bench. Rot. 482. SOme, Parson of the Church of Sherring in Essex, 1 Cro. 139. libelled in the Spiritual Court against Perry, for the Tithes of green Tares, eaten before they were ripe, and for the Tithes of the Herbage of dry , and for Tithes of Sheep bought and sold, and for Church and Burials; Perry prayed a Prohibition, and in his surmise; as to the green Tares, he said, That they had used, time out of mind, etc. in the same Parish. In consideration that they had not sufficient Meadow and Pasture for their milch Kine, and draught to pay for the Tithes of the ripe Tares, the tenth shock; but for their green Tares which are eaten up before they are ripe, in consideration that they gave them to their , they had used to be discharged of any Tithes thereof; and the truth was, That 400 Acres of Lands within the said Town had used to be ploughed and sowed every year by the labour of draught , and industry of the Inhabitants, in consideration of which, and that in the said Parish there was not sufficient Meadow nor Pasture for their draught , they had used to be discharged of the Tithes of green Tares eaten before they were ripe: It was holden by the Court, that the same was a good custom and consideration, for the Parson hath benefit thereby, for otherwise the said 400 Acres could not be ploughed; for without such shift to eat with their draught the green Tares, they could not maintain their plough , and so the Parson should lose his Tithes thereof; and for the Tithes of the green Tares, he hath the Tithes of 400 Acres. There was a Case lately betwixt the Lord Howard and Nichols, where the suit in the Spiritual Court was for the Tithes of Raking, and a surmise to have a Prohibition was made, that the Inhabitants had used to till and sow their Lands, etc. and they had used to be discharged of their Tithes of rakings after that the shocks were carried away. And Coke, who was of Council with the Parson, durst not demur upon it, but traversed the Prescription. Wray, Chief justice, The want of Meadow and Pasture in the Parish, is the great matter here, and there is not any mischief here, as if they had surmised, that for want of Meadow and Pasture, they had eaten their Meadows with their ; And it was held by the whole Court, that it was a good Prescription. XXXI. The Queen and Partridge 's Case. Trin. 30 Eliz. In the King's-Bench. 1 Cro. 125. IN a Quo Warranto, brought against Partridge, It was holden by all the justices; That a man might prescribe to hold a Leet oftener than twice in a year, and at other days than are set forth in the Statute of Magna Charta, Cap. 35. because the said Statute is in the affirmative: But Popham, Attorney General said, That one cannot prescribe against a Statute. And it was moved by him; If a general Pardon be granted with general Exception in it, he which will have advantage of it, aught to plead it, and show that he is not any person excepted, for otherwise the judges cannot allow him the benefit of it, because they do not know if he be a person excepted or not; But if there be special persons excepted by name, and no others excepted, but so many persons, there he need not to plead it; for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony, and also Treason, and afterwards comes a general pardon for Felony, but Treason is excepted, and the party is arraigned for Felony: By Coke he shall have the benefit of the pardon; Popham, contrary, For he is disabled by the Treason: See Coke's Case, 13 Eliz. Ploughed 401. he pleaded to the Felony, the general pardon by Act of Parliament, and added, that neither himself, nor the said offence was excepted: And it was agreed by the whole Court, That in a Quo Warranto, it is not sufficient for the Defendant to say, That such a Subject hath lawful interest to hold Leets without making title to himself; for the Writ is, Quo Warranto he claims them. And afterwards judgement was given for the Queen. XXXII. Woodward and Bugg 's Case. Trin. 30 Eliz. In the King's-Bench. WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands, called Christian-Hill; 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defendant sued a Prohibition, and surmised, That one Prettiman was seized of the said Land, and in consideration of 5 l. by him paid to the said Parson, it was agreed betwixt them, That the said Prettiman and his assigns should be discharged of the Tithes of the said Lands during his life, And afterwards the said Prettiman leased the same to the Defendants, upon which a Prohibition was granted; and it was holden that the party need not to make proof thereof within six months, for it is not within the Statute, because a composition with the Parson: But now a consultation was granted in the same Cause, because the agreement is showed, but no need of it, the which cannot be any discharge; but if it had been for a time, i. Unica vice, it had been good, but contrary, being for life: Also there is not any express Grant of Tithes, but only a Covenant, and agreement that he should be discharged, upon which he may have an Action, but no Prohibition: It was said on the other side, That although without Deed Tithes cannot pass in point of interest, yet by way of discharge they well may, Coke, It was holden betwixt Pendleton and Green, That upon such words of Covenant and agreement, the party should hold the Lands discharged of Tithes, which was denied: For if the Grantee of a Rent-charge will grant it to the Lands without Deed, it is not good; And there was of late a Case betwixt Westbed and Pepper, where it was agreed betwixt the Parson and one of his Parish, that for twenty shillings Rend per ann. the Parishioner should be discharged of Tithes for twenty years, if he lived so long; and it was holden that no Prohibition did lie thereupon, a Fortiori where the Estate is for life: Gawdy, In a Case of grant of Tithes for life, a Deed is requisite, but here it is but a Covenant for money: See 21 H. 6. 43. Wray, If it had been for years, it had been good, but here it is not any Contract, but only a discharge for life, which cannot be during his life, without Deed; And afterwards the Record was read, which was Concordatum & agreatum fuit between the two parties, pro omnibus decimis, during the time that one should be Parson, and the other occupier of the said Lands, that in consideration of 5 l. the said Prettiman and his assigns, should hold the said Lands discharged of Tithes; Wray, The same is not a Contract, but Promise; for he doth not grant any Tithes, etc. XXXIII. Devered and Ratcliff 's Case. Pasch. 32 Eliz. In the King's-Bench. IN Debt, the Plaintiff declared, 1 Cro. 185. That he himself had brought an Action in London against one A. and had judgement to remove; and a Capias was awarded and issued forth, to take the said A. in execution upon which, Non est inventus was returned; upon which one of the sureties of A. being in prison in London, under the custody of the Defendant, upon a Plaint against him, was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis praedict. prout per record. ejusdem Curiae apparet, and after the Defendant suffered the surety to escape; upon which there was a demur; The matter was, If the said surety was a Prisoner in Law for the said Debt, as surety of A. for in the Declaration it is not expressly laid, that there was such a custom in London, ut supra, but only, Secundum consuetudinem, etc. And secondly, there were two sureties of A. and the one of them only is detained in execution: Also the custom, as it is here laid, is not reasonable; For a Scire facias ought to issue out against the sureties, and they ought not to be taken or detained in execution presently; For the condition of the Recognizance of sureties is, That they bring in the Defendant, if he be condemned, or to pray the Debt; and now by this custom, the party who is surety being taken, cannot plead the release of the Plaintiff, or the death of the Defendant in his discharge, as he might upon a Scire facias, which was agreed per Curiam; and adjudged accordingly. XXXIV. Clark and Green 's Case. Trin. 30 Eliz. In the King's-Bench. AN Action upon the Case was brought for these words: He liveth by Charming, Sorcery and Witchcraft; It was moved, that the words were not actionable; for the words might be construed, as if the life of the party were preserved by that means. And it was holden, 30 Eliz. in the Case betwixt Smith and Morris, that the word Witch is not actionable; And therefore, if a man be sued in the Spiritual Court for defamation, for calling one Witch, a Prohibition doth not lie. It hath been holden, that upon these words, He went to destroy a child in a woman's belly, were actionable, and yet it is not Felony, but a great discredit; and these words, Thou usest Witchcraft, are not actionable. And afterwards, in the principal Case, judgement was given, Quod nihil capiat per Billam. And by Gawdy, It might be that the Plaintiff had the forfeiture of those who are convicted of offences, and so liveth thereby. XXXV. Harford and Gardiner 's Case. Trin. 30 Eliz. In the King's-Bench. IN an Action upon the Case, The Plaintiff declared, that the Defendant in consideration that the Father of the Plaintiff had employed his service about the business of the Testator of the Defendant, to the great profit of the Testator; and in consideration of love and affection that the Testator bore to the Plaintiff, promised to give unto him 100 l. Curia, Love is not a consideration, upon which an Action can be grounded; 3 Cro. 756. 1 Len. 94. the like of friendship: Wray, If the Plaintiff declares, That the Defendant in consideration that he was indebted unto the Plaintiff in divers sums of money, and promised to pay him 100 l. it is not good for the incertainty: Also the consideration here, was past and executed before the promise made, and nothing is done by the Son. And afterwards judgement was given against the Plaintiff. XXXVI. Clark 's Case. Mich. 31 Eliz. In the Exchequer. Post. 89. BRidget Clark was indebted to Archdell by Obligation, and afterwards she delivered to one Andrews certain Hogsheads of Wine to satisfy the said Archdell de debito praedicto: afterwards the Obligation of Clark was assigned to the Queen for the Debt of Archdel: and if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the assignment? was the question. Egerton, Solicitor General; The property is not altered; for the Bailor might have an Action of Account against Andrews before he hath delivered them over according to the Bailment; but if he hath delivered them over, the same is a good bar in Account: But if one be accountable to me upon a Bailment, and afterwards I require him to bail the goods over to A. the same is not in bar of the Account, but is a good Plea in discharge of Account before Auditors, for that is matter after the Bailment, not upon the Bailment. If Goods be bailed to bail over upon a consideration precedent on the part of him to whom they ought to be bailed, the Bailor cannot countermand it, otherwise it is where it is voluntary and without consideration, but where it is in consideration of a Debt not countermandable; contrary, if to satisfy the Debt of another. Manwood, chief Baron: Where the Debtor of the King is sufficient, there a Debt due to him ought not to be assigned to the King, but only where the Debt is doubtful, and that was the ancient course: but now at this day many seem and are accounted to be rich who are not, and therefore omnis ratio tentanda est to recover the Debts of the King. But as to the Case before us, Bridget is Executrix to her Husband, who was indebted to Archdel, and she delivered the Goods to Andrews to satisfy Archdel, and all that before the Assignment. And I conceive that the property of the said Goods is altered; for, as the case is here, Andrews was Surety for Clark, and had a Counterbond of Clerk to save him harmless. If I borrow Money, and deliver Plate for the security of it, the general property is in me, yet the Bailee hath a special interest in it, till the Money is paid. If Goods be delivered to A. to pay to B. A. may sell them. An Executor hath Goods of the Testator, and he with his own moneys pays the Debts of the Testator, he shall retain the Goods, and the property is altered. And here in our Case, Andrews might by virtue of the Bailment sell the Goods, and with the Money pay the said Archdel. And afterwards judgement was given, That the property of the Goods was altered. XXXVII. Norris Case. 31 Eliz. In the Exchequer. IN an Information upon Intrusion against Norris and others concerning Folly John Park, the Defendants pleaded in Bar a descent: It was holden clearly by the Court, That against the Queen a Descent is no Plea, nor any Title against the Queen, because nullum tempus occurrit Regi: neither shall Lachess be imputed to her: for the possessions of the Queen are large, and it is not reason that she should be bound or tied to look to her affairs concerning her possessions, or to incur any damage in default thereof; for she is to intent and manage the public affairs of the Kingdom and State. It was also held by the Court, That in pleading of a Lease for life, or Feoffment, the party needs not to show the place where the Lease or Feoffment was made. Popham, the Queen's Attorney, took Exception to the Bar to the Information, That whereas in the Information Title is made to the Queen, and concludes, prout patet per plurima Recorda & memoranda Scaccarii; the Defendants have not Traversed it by saying, Absque hoc quod habetur aliquod tale Recordum, To which it was said by Harris and Savil, Sergeants, That if a special Record had been alleged in certainty, than we ought to have taken such Traverse; but here it being in the generalty, we ought not to traverse at all. Manwood, Because the Information is general, i. ut patet per plurima Recorda, so the Traverse aught to be also. Another Exception was taken to the Bar, because in the Information the Title of the Queen is set forth: and the Defendants plead, That long before the Intrusion A. was seized in Fee, and enfeoffed B. who died seized, etc. where it might be that the Title of A. was mean betwixt the Title of the Queen and the Intrusion: whereas by Manwood and Popham they ought to have said, Diu antequam the Queen was seized, A. was seized, etc. Savil and Harris, If which should so plead, we should confess that the Queen once had a Title, and that is not true, which Manwood denied, for by such Plea nothing is confessed. And it was said by some, That where in the Bar the Title of the Queen is confessed and avoided, there the Defendant shall say, Diu antequam the Queen had any thing, etc. otherwise not. And it was holden by all, That in such case, a Feoffment might be an induction unto a Traverse, but not a Descent. And by Manwood, it is a general Rule, as well in the case of a Subject, as in the case of the Queen, That nothing can be an Inducement to a Traverse, but such a thing as is Traversable; and here the Descent induceth the Traverse, being not Traversable in this case. Also it was holden, That the place where the party dieth seized needs not to be showed in pleading a Descent. And afterwards Manwood at another day, mutata opinion, conceived, That as to plurima Recorda, there needed no Traverse, although there were many precedents to the contrary: Diu ante transgressionem fieri sup. is a good Plea in Trespass in Case of a common person, not in the King's Case, diu ante Intrusionem, etc. XXXVIII. Robinson and Robinson 's Case. 31 Eliz. In the Exchequer Chamber. IN the Case betwixt Robinson and Robinson in the Exchequer-Chamber by English Bill concerning the Manor of Draiton Basset; The Defendant pleaded in Bar a special Plea, to which the Plaintiff replied; and afterwards the Defendant, when he should have rejoined, would have relinquished his special Plea, and pleaded the general Issue. Manwood, In the Common Pleas, and King's Bench, and in the Court of Common Pleas in the Exchequer, before the Issue joined, the Defendant might relinquish his special Plea, and plead the general Issue, for the Plead there are in paper until Issue be joined, and therefore at any time before Issue joined, the Plea might be withdrawn: But in the Chancery, Court of Requests, and here, all Pleas put in are in Parchment, and filled; and therefore it cannot be so done: and therefore here, if the Plea be once engrossed into Parchment and filled, the Defendant cannot relinquish his Plea, and plead the general Issue; contrary, where the Plea is yet in Paper. Gent, Baron, That if upon the Plea in Paper an Issue be offered with an Absque hoc, etc. the other party cannot relinquish it, although it be but in Paper. But afterwards the Barons asked the Clarks, what was their course in such cases? who answered, That if the Plea be in Parchment, and upon the File, it shall never afterwards be taken from off the File, but with the consent of the parties, and Order of the Court. And afterwards Manwood, with the assent of the rest of the Barons, gave a Rule, That the Defendant should rejoin to the Replication, or otherwise a Nihil dicit to be entered. XXXIX. The Lord Cromwell 's Case. 31 Eliz. In the Exchequer. IN the Case of the Lord Cromwell upon the Statute of 33 H. 8. for levying of the King's Debts: A Debt came to the Queen by Attainder of the Creditor, upon which an Extent issued against one of the Ter-tenants liable to the Debt, and not against all: It was moved, That upon a branch of the said Statute, all the Ter-tenants ought to be charged: But it was the Opinion of divers, that such a Debt which cometh to the King by Attainder, is not within the said Statute; for although the Attainder is by a judgement, yet Debt by judgement it cannot properly be said, but where a Debt is recovered by judgement. And that was the Case of the Lord Norris, for a Debt due to Heron by the Lord Williams, which Heron was attainted. XL. Machel and Dunton 's Case. Hill. 29 Eliz. Rot. 631. in the Common Pleas. IN Ejectione Firmae the Case was, That one Machel, 1 Cron. 288. Owen 54, 92. Poph. 8. Alderman of London, was seized and Leased for years, with clause of reentry for non payment of Rent; and in the Indenture of Lease there were divers Covenants on the parts of the Lessee: And afterwards the said Machel by his Will willed, That the Lessee should retain the Land-demised for thirty one years, reckoning the years of the first term not expired as parcel of the said term of thirty one years, yielding like Rent, and under such Covenants as the Lessee held the former Lease; and by the same Will devised the Inheritance over to a stranger. It was first moved, If here the Lessee for years had a new interest accrued to him by the Will? If it shall vest in him as an interest by itself, or that both Estates, as well the former Lease, as the Estate for years devised by the Will, should be united by way of Surrender? Another matter was because that the Devise is yielding such Rent, and under such Covenants, etc. Now because the meaning of the Devisor was, That the Devisee should hold over the Land for the term increased as he held before; if here the Law shall give construction to this Devise as near the intention of the Devisor as it may be? and so construe the words of the Will to amount to a condition. But by the Opinion of the whole Court, the words of the Devise cannot make a Condition; for a Condition is a thing odious in Law, which shall not be created without sufficient words. Another matter was moved, If the Fee-simple should pass by this Devise in point of Reversion, or Remainder? And by the better opinion of the Court, it shall pass in point of Reversion; for if it should be a Remainder, than the Rent which is reserved upon the Lease by the Will, shall not be incident to such Remainder, and therefore the Law shall qualify it into a Fee-simple. Another matter was moved; Admitting that the words of the Devise, ut supra, are Condition, If here in this Case there be a Grantee of the Reversion intended within the Statute of 32 H. 8. As A. seized of Lands in Fee, deviseth them to B. for years, rendering Rend, with clause of Reentry; and by the same Will deviseth the Reversion to another: If because that it was never in the Devisor a Reversion or a Condition? If the Devisee be within the said Statute to take advantage of it? And the Opinion of the whole Court was, That the Devisee of the Fee-simple should take advantage of this Condition. XLI. Trin. 29 Eliz. In the Common-Pleas. Postea 210. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the same Plea was held and determined before the under-sheriff in the absence of the Sheriff: It was moved by Puckering, Serjeant, If a Writ of Error or a false judgement lieth in this Case? And it was resolved by the justices, That the Sheriff himself in his person ought to hold Plea of a Justicies; and if he make a Precept or Deputation to another, it is merely void: 34 H. 6. 48. See the Case there abridged, Fitz. Bar. 161. And a Justicies is not an Original Writ, but a Commission to the Sheriff to hold Plea above 40 s. And upon a judgement given upon a Justicies, a Writ of false judgement lieth, and not a Writ of Error. See 7 E. 4. 23. And it was the Opinion of the Lord Anderson, That the judgement given in the principal Case was utterly void, & coram non Judice. XLII. The Queen and Jordan 's Case. Trin. 29 Eliz. In the Exchequer. 11 Co. 89, 90, etc. AN Information was exhibited in the Exchequer for the Queen against the Executors of William Jordan, Surveyor of the Ordinance, etc. and the Executors of John Bowland, Deputy of Ambrose Earl of Warwick, Master of the Ordinance, etc. In which was set forth for the Queen, That certain Powder, Pellets, and other furniture of War, came unto the hands of the said Jordan and Bowland, in respect of their said Offices, to the value of 400000 l. and shown how much came to each of them, and the special charge incertain, per quod onerabiles & computabiles Dominae Reginae devenerunt, nec tamen computum unquam inde reddiderunt, nec reddere voluerant, sed bona & catalla praedicta ad usus suos proprios converterunt, in deceptionem dictae Dominae Reginae, etc. The Defendants pleaded Not guilty, upon which the Queen's Attorney did demur in Law, because the Defendants have answered only to the Conversion: in which case although they have not converted, yet if the said Goods have come to the hands of their Testator, it is sufficient for the Queen, and the Defendants are chargeable to the Queen for the same: And the Opinion of all the Barons was clear, that the Defendants ought to answer to the Charge, etc. XLIII. Collet and the Bailiffs of Shrewsbury 's Case. Pasc. 29 Eliz. In the Common Pleas. IN a false Imprisonment, the Defendants justified by Prescription, scil. that they have used, if any person within their Town contemptuose se gesserit against the Bailiffs of the said Town, or any Warden of any Trade there, to commit such a person to Prison for the space of a day or more at the least, at their discretions: And shown farther. That the Plaintiff did mis-behave himself, tam factis quam verbis, against the Wardens of such a Mystery in the said Town, etc. And when the Bailiffs, super Querimoniam eis inde factam, sent for the Plaintiff, he would not come to them, but mis-behaved himself against them, tam dictis quam factis; for which they did commit him to Prison, etc. upon which there was a Demurrer. And afterwards judgement was given for the Plaintiff, because their Prescription is not good; for it is too large to imprison Subjects at their discretion: Also they have set forth the offence of the Plaintiff generally; i. Misbehaviour, tam factis quam dictis, without alleging any special Misdemeanour in certain. XLIV. Pasch. 29 Eliz. In the Common-Pleas. 3 Leu. 79. IT was holden by the whole Court, That where a man makes his Will in this manner, I will and bequeath my Land to A. and the name of the Devisor is not in the whole Will, yet the Devise is good, by averment of the name of the Devisor, 1 Cro. 100 1 Leo. 113. and by proof that it was his Will. And if one lying sick in extremis, having an intent to devise his Land, by word makes such a Devise, but doth not command the same to be put in writing, but another without his knowledge or command puts the same in writing in the life of the Devisor, it is a good Devise, for it is sufficient if the Devise be reduced in writing during the life of the Devisor. XLV. Leonard Lovelace 's Case. Trin. 27 Eliz. In the Common-Pleas. IN Waste, the Case was, 1 Anders. 132. More Rep. 371. Savile Rep. 75. 1 Cro. 40. That Lands were devised to the Father of the Defendant, and to his eldest Issue male, de corpore suo exeunti: And upon Demurrer it was adjudged, That by this Devise no Estate passed but an Estate for life unto the Father of the Defendant, the Remainder to his eldest Son for life, so as no Estate of Inheritance passed thereby; and therefore punishable for Waste. XLVI. Cobb and Prior 's Case. Postea 48. Hill. 33 Eliz. In the Common-Pleas. THE Case was, A man deviseth his Lands to his Wife during the minority of his Son, upon condition, That she shall not do Waste during the min●●●●y of her said Son, and dieth: The Wife takes a Husband, a●● dieth; the Husband commits Waste: It was holden by the whole Court, That the same is not any breach of the Condition. XLV. Salway and Luson 's Case. Mich. 30 and 31 Eliz. In the Common-Pleas. 1 Leon. 169. MAtthew Salway brought a Writ of Right against Luson, and the Writ was, Messuagium, & 200 acr. jampnor. & bruerae, and exception was taken to the Writ, because that jampnor. & bruerae, were coupled together where they ought to be distinctly severed; and so many acr. jampnor. and so many acr. bruerae: although it was objected on the part of the Demandant in maintenance of the Writ, That in the Register, fol. 2. the Writ of Right is, Redditu unius librae Mac. & Obed. i. Mace and Cloves together without distinction or severance. And it was said in a Writ of Right, we ought to follow the Register, and therefore a Writ of Right was abated, because the word Pomarium was put in the Writ, for in the Register, there is no such Writ, and the word Gardinum comprehends it, But in other Writs, as Writs of Entry, etc. it is otherwise: See the Case of the Lord Zouch, 11 Eliz. 353. In a Writ of Entry, Sur Disseisin mille acr. jampnor. & bruerae. But the exception was not allowed, for it may be, that jampnorum & bruerae lie so promiscuously, that they cannot be divided: And see 16 H. 7. 8. and 9 The respect which the justices there had to the Register, so as they changed their opinions, conformable to the Register: Another exception was taken to the Writ, because the Demandant demands duas partes custodiae, de Hay in the Forest of C. and the opinion of the whole Court was, that the Writ ought to be Officium custodiae duarum partium de Hay, and not duas partes custodiae, As Advocatio duarum partium Ecclesiae, not duas partes advocationis: another exception was, because the Writ was, duas parts, etc. in three to be divided, whereas it should be divisus, & non dividend. for dividendum is not in any Writ but a Writ of Partition. And by Windham, the parts of this Office are divided in right, Quod Curia Concessit, another exception was taken, because in the Writ, it is not set down in what Town the Forest of C. is, so as the Court doth not know from whence the Visne should come; for no Venire shall be de vicineto Forestae, as de vicineto Hundredi & Manerii; and that was holden to be a material exception: Another exception was taken, because a Writ of Right doth not lie of an Office; for at the Common Law, an Office did not lie of it, but now it doth by the Statute of West. 2. For it was not liberum tenementum, but the party grieved was put to his Quod permittat. And of this opinion was the whole Court. XLVIII. Johnson and Bellamy 's Case. Hillar. 31 Eliz. In the Common-Pleas. Postea 82, 83. IN Ejectione firmae, It was found by special Verdict, That Mr. Grant was seized of the Lands, etc. and by his Will devised the same to Joan his Wife, for life; and farther he willed, That when Richard his brother shall come to the age of 25 years, he should have the Lands to him and the heirs of his body lawfully begotten. Mr. Grant died, having issue of his body, who is his heir, Richard, before he had attained the age of 25 years, levied a Fine of the said Lands, with Proclamations in the life, and during the seisin of Joan, to A. Sic ut partes ad finem nihil habuerunt: and if this Fine should bind the Estate-tail was the Question; And the justices cited the case of the Lord Zouch, which was adjudged, M. 29 and 30 Eliz. Tenant in tail discontinues to E. and afterwards levieth a Fine to B. although the parts ad finem nihil habuerunt, yet the Fine shall bind the entail: But the Sergeants at Bar argued, That there is a great difference betwixt the Case cited, and the Case at Bar; for in that Case, the said Fine was pleaded in Bar, but here the Fine is not pleaded, but found by special Verdict; To which it was said by the Court, that the same was not any difference; For the Fine by the Statute is not any matter of Estoppel, or conclusion; but by the Statute doth bind and extinguish the Estate-tail, and the right of it; and Fines are as effectual to bind the right of the entail when they are found by especial Verdict, as when they are pleaded in Bar: And by Periam, Collateral Warranty found by Verdict, is of as great force, as if it were pleaded in Bar, And afterwards judgement was given, That the Estate-tail by the Fine, was utterly destroyed and extinct. XLIX. Jay 's Case. Trin. 29 Eliz. In the Common-Pleas. JAY brought an Action of Debt before the Mayor of Shrewsbury, etc. and declared upon an Obligation which was upon condition to pay money at London, and issue was there joined upon the payment. And it was moved how this issue should be tried, viz. 4 Inst. 205. If it may be removed by Certiorare into the Chancery, and thence by Mittimus into the Common-Pleas, and from thence sent into London to be tried, and when it is tried, to be remanded back to Shrewsbury to have judgement: See 21 H. 7. 33. Upon voucher in the County Palatine of Lancaster, the Law is such in matters real; for real actions cannot be sued but in the said County Palatine, but in personal matters it is otherwise, for such actions may be sued elsewhere, at the pleasure of the party; And thereunto agreed the whole Court: and although such matters have been removed before, yet the same were without motion to the Court, or opposition of the other party, and so not to be accounted Precedents: See 3 H. 4. 46. abridged by Brook, 'Cause the remover Plea 41. Where he saith, That a Foreign Plea pleaded in London in Debt, goes to the jurisdiction; but upon a Foreign Voucher in a Plea real, the Plea shall be removed in Bank by the Statute to try the Warranty, and afterward shall be remanded. L. Sands and Scagnard 's Case. Trin. 29 Eliz. In the Common Pleas. IN an Action upon the Case, The Plaintiff declared, that he was possessed of certain Chattels which came to the Defendant by Trover. The Defendant pleaded, That heretofore the Plaintiff brought Debt against the now Defendant, and demanded certain moneys, and declared, that the Defendant bought of him the same goods, (whereof the Action is now brought) for the sum then in demand, to which the then Defendant waged his Law and had his Law; by which Nihil Capiat per breve, etc. was entered. And demanded judgement, if, etc. And by Windham and Rhodes, justices, The same is no bar in this Action, for the waging of the Law, and the doing of it, utterly disproves the Contract supposed by the Declaration in the said Action of Debt, and then the Plaintiff is not bound by the supposal of it, but is at large to bring this Action; and so judgement was given for the Plaintiff. LI. Spittle and Davie 's Case. Trin. 29 Eliz. In the Common-Pleas. Owen Rep. 8, 55. IN a Replevin, the Case was, That one Turk was seized of certain Lands in Fee, and by his Will devised parcel of his said Lands, to his eldest Son in tail, and the residue of his Lands to his younger Son in Fee, Provided, that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will, or do any Act with any of the said Lands, to the hindrance of their children or mine, by any devise or means, before they come to the age of 30 years; and if any of my Sons do so, than my other Son shall have the portion of my Lands so devised to his Brother, the eldest Son before his age of 30 years leased the Lands to him devised, ut supra, for years, against the intent of the said Proviso. The younger Son entered, 2 Cro. 398. and he leased the same Land for years before his age of 30 years, Upon which the eldest Son did re-enter, and the opinion of the Court was, that here is a Limitation, and not a Condition; and here the reentry of the eldest Son was holden unlawful; for this Proviso did not extend but to the immediate Estate devised, expressly to them, and not to any new Estate, which did arise upon the limitation; and when the younger Son enters upon the eldest Son by the said Limitation, he shall hold his Estate, discharged of the Proviso, or any limitation contained in it. LII. Martin Van Henbeck 's Case. Trin. 30 Eliz. In the Exchequer. AN Information was exhibited in the Exchequer, against Martin Van Henbeck, Merchant-stranger, upon the Statute of 18 H. 6. Cap. 17. concerning the gauging of vessels of Wine, and shown, That the Defendant had sold to such a one, so many pipes of Wine, and that none of them did contain as they ought, 126. gallons; and although they were so defective, yet the Defendant had not defalked the price, etc. according to the want of measure, for which he had forfeited to the Queen, all the value of all the Wine so defective. Exception was taken to the Information, because there is not set down how much in every pipe was wanting, as one or two gallons, etc. To as a ratable defalcation might be made according to the proportion of the want of measure; But if the Informer had set forth in his Information, that no defalcation was at all, such general allegation of want of measure, without other certainty, had been good. And the Case was cited, 32 E. 4. 40. Lysle's Case, Where the plea wants certainty; or where he pleads that he was ready to show to the Council of the Plaintiff his discharge of an Annuity, etc. and doth not show what manner of discharge, as release, etc. So 2 H. 7. 6. in Dower, against the heir, who pleads in Bar, Detainment of Charters, without showing what Charters in certain: also there is time enough of defalcation, when the time of payment comes, and not upon the Contract; and it is not showed, that the Vendee had paid for the Wine. Egerton, Solicitor, contrary, When the thing demanded is to be recorded, there it ought to be certainly showed, but contrary, where it goeth only to the point of Conveyance of the Office; and here, the thing to be abated is not in question; for be it more or less, the Defendant is to lose the value of all the Wine, and that which is to be defalked, is but an Induction, or Conveyance tending to the payment of the forfeiture: As in Partridge's Case, 7 E. 6. Blow. 85. Whereupon the Statute of 32 H. 8. Maintenance, The Plaintiff charges the Defendant with a Lease for years, made to a stranger, without showing for what term certain, and yet it was there holden well enough, notwithstanding that the Lease was not to be forfeited, but was a Conveyance to the point of forfeiture; i. the value of the Lands 38 Ass. 12. A Steward of a Leet was presented, for that he had suffered many Brewers and Bakers to ba●● and brew, contrary to the Assize, pro redemptione inde capiend. without showing in certain, what Bakers, or of whom he had taken redemption; but notwithstanding that, the Defendant took issue upon the matter, etc. And it is impossible for the Informer, to know the quantity of the full measure of every pipe of Wine, which doth not belong to him, but to another, and if the Law should compel him to this impossibility, the Statute should be of none effect. 3. E. 3. 363. In Nuisance for drowning of his Lands, exception was taken, because it was not set forth what quantity of land, but it was not allowed; for it is impossible to know, to what depth the land was drowned, and how much of the land was drowned: So here the Informer cannot know every spoonful, etc. And he said, that the defalcation ought to be at the time of the Contract, or within convenient time after. Coke, contrary, Here is a great incertainty, which is not tolerable in an Information, for the quantity of the want is uncertain, and so likewise the quantity of the defalcation, for the want must be forty, twenty, ten, five, or one gallon, pottle, quart, or pint, and in such Information upon penal Laws, the matter of it ought to be certainly showed. Oportet ut res certa deducatur in judicium, so as the Court may judge thereof: as where an Information is exhibited upon the Statute of Usury, That Statute is, that if any take above 10 l. for the loan of 100 l. for one year, he shall forfeit the whole value of the principal, here there ought to be an usurious Contract for above 10 l. in the hundred; and also there ought to be a taking; and it is impossible to discover the subtlety of an Usurer: But if Information be exhibited, here against an Usurer, and chargeth that he took more than 10 l. in the hundred, without showing how much, such Information is utterly insufficient; for the Informer ought to set forth the quantity of the interest received, and yet the same is not to be recovered: Also if the Informer setteth for an usurious Contract, Cum quodam homine ignoto, it is insufficient, 5 H. 7. 17, 18. If an Information be exhibited upon the Statute of Liveries, as well the giver as the taker, aught to be certainly showed, etc. Another exception was taken, because the words of the Information are, Quae quidem dolia, vel eorum aliquod, etc. did lack, etc. But by Manwood, the same is well enough, Wherefore Coke did not speak to it; And he said, that the time of the defalcation of the price is upon the payment, and not before. If J. S. lend to one 100 l. for a year, and upon the loan, contract with me, to give me 20 l. for the loan of the same for one year, If now when I pay him he taketh but 10 l. he shall not be punished for the Contract, but perhaps the Bond shall be void. And upon the Statute of 5 E. 6. of Ingressors, If the Information be, that the Defendant hath bought Corn, etc. it is not sufficient; for the words of the Statute are, Get into his hands, etc. Owen Sergeant to the same purpose: He hath not alleged, Quantum, vel in quanto defecit, If there had been but a Pint, it had been sufficient; The Information goes farther, Non defalcavit tantum de pretio, quantum defecit, and so tantum, & quantum, is incertainly laid; 22 H. 6. If A. be bound to B. to make him a sufficient Estate in such Lands, in an Action brought upon such an Obligation, it is no plea to say, That he hath made unto him a sufficient Estate, etc. but he ought to show what Estate, So 7 E. 4. If one be bound to repair such a house, It is not sufficient to say, that he hath repaired it, but he ought to show, in hoc, vel in illo: Egerton, The abatement shall be upon the Contract. And afterwards judgement was given against the Informer, because it is not showed in the Information in how many Vessels there was want; but if he had alleged but the want of one Pint, it had been good for the value of all the Wine: And by Manwood that might have been well enough known by the Gauging how much every Vessel wanted. LIII. Green and Everard 's Case. Mich. 30 Eliz. In the Exchequer. IN Ejectione Firmae against Everard by Green, the parties were at issue, and the said Green challenged one of the jurors, and assigned for cause, because the said juror held Land under the same Title as the Defendant did: To prove which one Lancelot Chandler was produced as a Witness for the said Green, who deposed upon the said Challenge the same, for which the juror challenged was drawn, and so there was no Inquest: and so the Plaintiff was delayed of his Trial: whereupon he sued the said Lancelot, tam pro Domina Regina quam pro seipso: and it was found for the Plaintiff. And now Exception in Arrest of judgement was put into the Court engrossed in Parchment; viz. Admetus Judicium pro Domina Regina, & praefat. Querente, Curia procedere non debet, quia manifeste apparet, per informat. dict. Querent. quod ipse non fuit pars gravata, quod per calumniam in dicta informatione specificat. ac per jurament. dict. Lancelot super inde fact. dictus Querens, non fuit damnificat. said in calumnia praedict. & jurament. praedict. super inde factum tendebat in commodum ipsius Everardi, propter quod ipse idem Everardus tempore calumniae praedict. existens tenens Tenementorum praedictor. per dict. declarat. specificator. eadem Tenementa ratione calumniae praedict. ac praedict. jurament. tenebat & proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset. See the Statute of 5 Eliz. against Perjury, the words are, grieved, letted, or molested, etc. LIV. George ap Rice 's Case. Mich. 30 Eliz. In the King's-Bench. George ap Rice, Tenant in Tail after possibility of Issue extinct, assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat, and it was adjudged that he should Attorn; for although Tenant in Tail after possibility of Issue extinct, himself is not compellable to attorn, yet his Assignee shall attorn; for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue, which cannot be the Assignee, for by the Assignment the privity and the privilege are destroyed. 1 Len. 290.291. And where the Defendant, in a Quid juris clamat, is adjudged to attorn, Distress infinite shall issue forth against him, to compel him to attorn; and if he, when he appears, doth refuse to attorn, he shall be imprisoned until he doth attorn: And this judgement, That the Assignee of Tenant in Tail after possibility should attorn, being given in a Court in Wales, was afterwards affirmed in a Writ of Error brought upon it in the King's Bench. LV. Lucas and Picrost 's Case. 30 Eliz. In the Common Pleas. THE Case was, 3 Len. 137. That an Assize of Novel disseisin was brought in the County of Northumberland of two Acres of Land; and as to one Acre, the Defendant pleaded a Plea tryable in a Foreign County, upon which the Issue was adjourned into the Common Pleas, and from thence into the Foreign County, where by Nisi prius it was found for the Plaintiff: And now Snag, Serjeant, prayed judgement for the Plaintiff, and cited the Book of 16 H. 7. 12. where Assize is adjourned in Bank for difficulty of the Verdict, they there may give judgement But the whole Court is of contrary Opinion; for here is another Acre, the Title of which is to be tried before the justices of the Assize, before the Trial of which no judgement shall be given for the Acre for which the Title is found: And the Assize is properly depending before the justices of the Assize, before whom the Plaintiff may discontinue his Assize: And it is not like unto the Case of 6 Ass. 4. 8 Ass. 15. where in an Assize, a Release dated in a Foreign County is pleaded, which was denied, for which cause the Assize was adjourned in Bank, and there found by Inquest not the Deed of the Plaintiff: now the Plaintiff, if he will release his damages, shall have judgement of the Freehold presently: But in our Case, Postea. 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tried, which the Plaintiff cannot release as he may the damages: And therefore the Court awarded. That the Verdict should be sent back to the justices of the Assize. LVI. Povye 's Case. Mich. 30 Eliz. In communi Banco. POvy, an Attorney of the King's Bench, brought an Action of Trespass there against the Warden of the Fleet, who came into the Common Pleas and demanded the Advice of the Court, because he is an Officer of this Court, and therefore ought not to be impleaded elsewhere: But it was said by the Court, 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench, as well as the Defendant hath here, this equality of Privilege shall render the parties at liberty; and he shall have the benefit of the Privilege who first gins Suit: and so the Warden of the Fleet was advised to answer. LVII. Inchley and Robinson 's Case. Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae, it was found by special Verdict, Owen Rep. 88 3 Len. 165, That King E. 6. was seized of the Manor and hundred of Fremmington, and by his Letters Patents granted the same to Barnard in Fee, rendering 130 l. per annum, and also to hold by Homage and Fealty; and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude, Marchioness of Exeter, the Manor of Fremmington, and the said Rents and Services; and also the Manor of Camfield, and other Lands and tenements, to be holden by the twentieth part of a Knight's Fee: Gertrude so seized, devised to the Lord Montjoy the Manor of Fremmington, the Manor of Camfield, etc. and also bequeathed divers sums of money to be levied of the premises: and they farther found, That the said Rend of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor. The Question was, If by those words of the Devise, Of the Manor of Fremmington, the Rent and Services of the Manor did pass? i. the Rent and the Homage and the Fealty reserved, the Grant of King E. 6. of the Manor and Hundred of Fremmington? and if the said Rent and Services are issuing out of the Manor? for if the Rent doth not pass, than the same is descended to the Heir of the Marchioness; and then being found the full and third part of the value, the King and the Heir is fully answered and satisfied, and then the Inheritance of the residue discharged, and settled in the Devisee: And if the Rent doth not pass, then is the Heir of the Marchioness entitled by the Statute to a third part of the whole. Shuttleworth, Serjeant, If the Marquis had devised by express words the said Rent and Services, they could not have passed: for as to the Services, they are entire things, as Homage and Fealty, and they cannot pass by Devise in case where Partition is to follow, for such things cannot receive any Partition or Division, therefore they are not divisible; for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances, in three parts to be divided; i. as Catalla Felonum cannot be devised for the reason aforesaid; which was granted by the whole Court. And as to the Devise, he argued much upon the grounds of Devises, and put a ground put by Fineax, 15 H. 7. 12. where every Will aught to be construed and taken according as the words do import, or as it may be intended or employed by the words, what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9 and he relied much upon the Case of Bret and Rigden, Blow 342. So he said in this case, because the intent of the Devisor doth not appear upon the words of the Will, that this Rent should pass; it shall not pass, for there is not any mention made of any Rent in all the Will. Fenner contrary, and he argued much upon the construction which the Law gives to Wills, 14 H. 3. Reversion for Remainder, & è contr. 17 E. 3. 8. A man may make a Feoffment of a Manor by the name of a Knight's Fee, à fortiori in case of the Devise: and in our case the Marquis conceived, That the Rent and Services reserved out of the Manor of Fremmington was the Manor of Fremmington; and the Law shall give strength to that intention. Walmsly conceived, That the Rent did not pass by the name of Manor, etc. for this Rent, nec in rei veritate, nor in reputation, was ever taken for a Manor: Also the words, Of the Manor and Hundred of Fremmington, are put amongst others which are Manors in truth; by which it seemeth, That the Devisor did not intent to pass but one Manor, and no other Hereditaments, by that Manor of Fremmington. It is a Rule in Law, That in the construction of a Will a thing employed shall not control a thing expressed: But here, if by implication the Rent shall pass, than the Manor of Camfield shall not pass, which it was the intent of the Devisor to pass, and that by express words, See 16 Elizab. Dyer 330. Clatche's Case: and see 16 Eliz. Dyer 333. Chapman's Case. But in our Case here, there are not any sufficient words to warrant any implication; for neither in truth nor in reputation was it taken to be a Manor: 22 H. 6. 2. Green Acre might pass by the name of a Manor, although it were but one Acre of Land, because known by the name of a Manor. See accordingly 22 H. 6. 39 And see, where, before the Statute of Uses, a man had Recoverors to his use, and he wills by his Will, That his trusties should sell his Lands, they may sell. And he said, That if a man seized of a Manor parcel in Demesne, and parcel in service, and he grants the Demesnes to one and his Heirs, and afterwards deviseth his Manor, peradventure the services shall pass; but this Rent hath no resemblance to a Manor. Gawdy, This Rent shall pass by the name aforesaid. Favourable construction is to be always given to Wills, according to the intent of the Devisor, and no part of a Will shall be holden void, if by any means it may take effect; then here it appeareth, that his meaning was, that upon these words every thing should pass to the Devisee concerning the said Manor of Fremmington; for otherwise, the words of the Manor of Fremmington should be void and frivolous, which shall not be in a Will, if any reasonable construction can be; for it is found expressly by the jury, That neither at the time of the Will made, nor at the time of the death of the Devisor, the said Devisor had any thing in the said Manor of Fremmington, but only the said Rent of one hundred and thirty pounds. And it may well be taken that the Devisor being ignorant what thing a Manor is, though that the Rent was a Manor, because that he had Rents and services out of the Manor. For in construction of Wills, the words shall serve 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, for the intent of the Testator naming the Vendors, is sufficient: And see Plowden, 20 Eliz. 5. 24. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seized to the use of A. and his Heirs in Fee, whereas then there was no Feoffees to his use; the same was holden a good Devise of the Lands of A. and the judges conceived, that the Devisor was ignorant of the operation of the Statute in such case, and therefore his ignorance was supplied: See Br. Devises, 44. 29 H. 8. A. had Feoffees to his use, and afterwards, after the Statute of 27 H. 8. willed that his Feoffees should make an Estate to B. and his Heirs, it was holden by Baldwin, Shelley and Montague, justices, that it was a good Devise: See 26 H. 6. Feoff. 12. A Carve of Lands may pass by the name of a Manor, Ergo, à multo fortiori, Rent, for Rents and Services have more nearness, and do more resemble a Manor than a Carve of Lands; and it cannot be intended, that the meaning of the Testator was to grant the Manor itself, in which she had nothing, especially by her Will; for covin, collusion, or indirect dealing, shall not be presumed in a Will: Also the Marchioness, for four years together before her death, had the Rent and Services of the said Manor, and she well knew, that she had not any other thing in the said Manor, but the said Rent and Services; and therefore it shall be intended, that that was her Manor of Fremmington, A. seized of a Capital Message, and great Demesnes lying to it, leaseth the same for years, rendering Rend, and afterward deviseth to another all his Farm, lying in such a place, It was rated in that case, that by that Devise, the Rent and the Reversion should pass: See the Case betwixt Worselie and adam's, Ploughed 1 Eliz. 195. by Anthony Brown and Dyer. Periam, justice, was of opinion, that this Rent might be divided well enough; But by Anderson, It is but Rent-seck; but Periam said, it was a Rent distrainable of common Right, but all of them agreed, that the Rent might be divided, but there should not be two Tenors. And the Lord Montjoy being advised that this Rent did not pass by the Grant, but descended to the Heir, being the full part of the whole, entered into all the residue of the Lands, and made a Lease of the Manor of Camfield unto the Plaintiff, upon which entry, the Ejectione firmae was brought, and afterwards the Plaintiff seeing the opinion of the Court to be against him, and for the Devisee of the Rent by the name aforesaid, did afterward discontinue his suit, etc. LVIII. Costard and Wingfield 's Case. Trin. 30 Eliz. Intrat. T. 28 Eliz. Rot. 507. In the Common-Pleas. 6 Co. 60. IN a Replevin, the Defendant did avow for damage-feasant, by the commandment of his Master, the L. Cromwell; The Plaintiff by way of Replication did justify the putting in of his into the Land, where, etc. by reason that the Town of N. is an ancient Town, and that it had been used time out of mind, etc. That every Inhabitant of the said Town, had had common for all manner of levant and couchant within the said Town, and so justified. The Defendant said, that the house in which the Plaintiff did inhabit in the said Town, and by reason of residency in which House he claimed common, was a new house erected within 30 years; and that before that time, there had not been any house there, upon which the Plaintiff did demur: Shuttleworth, Serjeant, argued for the Plaintiff, That he should have common there by reason of resiancy in the said new house; and he said, that the Resiancy is the cause, and not the Land, nor the person thereof; and thereupon he put the Case of 15 E. 4. 29. And he agreed the Case, That if the Lord doth improve part of the common, that he shall not have common in the residue of the Land, for the Lands improved, because, That he cannot prescribe for that which is improved, as the Book is, in 5 Ass. But here in the principal Case he doth not prescribe in any person certain, or in, or for any new thing; but he sets forth that the use of the Town hath always been, that the inhabitants should have common there, And this common is not common appendent, or appertinent, but common in gross, See Needham, 37 H. 6. 34. b. And he said, That if the house of a Freeholder, which hath used to have such common, doth fall down, and he erecteth a new house in another place of the Land, that he shall have common to that new erected house as he had before? And he took a difference betwixt the case of Estovers, where a new Chimney is erected, and this Case, and he stood much upon the manner of the prescription. Gawdy, Serjeant, contrary, And he took exception to the prescription; For he said, that it is said therein; That it is Antiqua Villa, but he doth not say, that it hath been so time out of mind, etc. and so it ought to be said, as the Book is in 15 E. 4. 29. a. And then, if it be not an ancient Town time out of mind, the parties cannot prescribe as Inhabitants of the said Town, to have common time out of mind, etc. And he said, That if such a prescription as is said in this Case be good in Law, viz. That every one who erected a new house within the said Town, should have common to his said new house, the same should be prejudicial to the ancient Town, and to the utter overthrow and manifest impairing of the common there; and it might so happen, that one who had but little Lands in the said Town, might erect twenty new houses there, and so an infinite number of houses might be newly erected there; and there should be common allowed to every Inhabitant within the said new erected houses, which should be inconvenient and unreasonable. Anderson, chief justice, He who erects a new house, cannot prescribe in the common, for then a prescription might begin at this day, which cannot be; and he insisted much upon the general loss which should happen to the ancient Tenants, if such a prescription for new erections should be good. Periam, If it should be Law, That he should have common in this Case, That all the benefit which the Statute gives to the Lord for improvement, should be taken away by such new edifications and erection of new houses, which were not reasonable; And such was the opinion of the other justices, and therefore they all agreed, that in the principal Case, the Plaintiff should not have common to this new erected house; but the entry of the judgement was respited until the Court had seen the Record, and after they had seen and considered upon the Record, Anderson and Periam were of opinion as before: But Windham did not incline to the contrary; but they all agreed, That he who set up again a new Chimney where an old one was before, should have Estovers to the said new Chimney: and so if he build a new house upon the foundation of an old house, That he should have common to his said house new erected: So if a house falleth down, and the Tenant or Inhabitant sets up a new house in the same place: Also if a man hath a Mill, and a Watercourse to it time out of mind, which he hath used time out of mind to cleanse, if the Mill falleth, and he erecteth a new Mill there, he shall have the Watercourse, and liberty to cleanse it, as it had before, and afterwards the same Term, judgement was given for the Defendant, to which Windham, justice, agreed. LIX. Rous and Artois Case. Hill. 29 Eliz. In the King's-Bench. THE Case was large, but the points in this Case were but two: Owen Rep. 27. 4 Co. 24. The first was, If Tenant per altar vye, after the death of Cestuy que vye holdeth over. If he be a Disseisor or not: The second point was, If Tenant at will, or at sufferance, be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders: For the first point; It was agreed by Godfrey, and he held, that the principal Case was, That if Tenant pur altar vye holdeth over the life of Cestuy que vye, that he thereby gaineth the Fee; But he granted the Cases, That where a man holdeth at the will of another, that after the Estate determined, if he holdeth over, he hath not thereby gained fee, for he is Tenant at sufferance; and as Littleton saith in his Chapter of releaseth, 108. Tenant at sufferance, is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold; and such an occupier claims nothing but at will; But he said, That in the principal Case, he otherwise claimed than at the will of the Lessor; for that it appeareth, that he hath granted Copy: and he said, that this difference doth give answer to the Case which is, t. H. 8. br. t. per Copy 18. where it is said for Law, That none is Tenant at sufferance, but he who first enters by authority of Law: As if a man makes a Lease for years, or for the life of another, and he holdeth the Lands after his term expired, or after the death of Cestuy que vye; If he claim nothing but at the will of him who hath the Freehold; he is a Tenant at sufferance. But if he holdeth in the Lands against the will of his Lessor, than he is a Disseisor; and so if he do act after such continuance of possession, contrary to the will of his Lessor, he is a Disseisor, 10 E. 4. If an Infant maketh a Lease at will, and the Lessor dieth, and the Lessee continueth in possession, and claims Fee, the Heir shall have Mortdancester, 18 E. 4. If Cestuy que vye dieth, and the Tenant hold in, and was impleaded, The Lessor shall not be received, and he conceived the reason of the Case to be, because that the reversion was not in him; but that the Fee was gained and rested in the other, 22 E. 4. 39 g. by Hussey. If a Termor holdeth over his term, there an Estate in Fee is confessed to be in him, because he holdeth the possession of the Lands by wrong; but there is a Quaere made of it, if he be a Disseisor or not, but I conceive that he is, for Trespass doth not lie against him, before the Lessor hath made his entry; and therefore, if the Lessee doth continue in the possession of the Lands by reason of the first entry; that is the reason, as I conceive, that the Writ of Entre ad terminum qui praeteriit, lieth against such a Termor, who holds so over his Term; and that Writ is a Praecipe quod reddat, which doth not lie but against a Tenant of the Freehold. And such is the opinion of Tilney, 7 H. 4. 43. That if the Guardian holds in the Lands at the full age of the Heir; or if the Tenant for years after the term expired, holdeth over the Lands, their Estates shall be adjudged a Fee. And in our Case here, he doth not claim to hold in at the will of the Lessor; for he hath done an act contrary to the will of the Lessor; For he being Lord of the Manor, in manner as aforesaid, 3 Cro. 302. hath granted Estates by Copy; and it is holden, 12 E. 4. 12. by all the justices, That if Tenant at will, or Tenant at sufferance at will, makes a Lease for years, that the same is a Disseisin to the Lessor, and the Tenant at will thereby gains the Freehold: and the reason of the Book seems to be, because he claims to hold a greater Estate than of right belongs unto him. The second point was, If Tenant at sufferance might grant Copies, and he said, that he might, and such grant should be good, because he is in by lawful means, and an Assize doth not lie against him, as in the Book of 22 E. 4. 38. before, and he is Dominus pro tempore. And this Case is not like to the Cases, where Copies are made by Abators or Disseisors; for the Law doth adjudge, that Copies made or granted by them are void, and his act here as a Tenant at sufferance of making and granting of the Copies stands with the custom of the Manor which warrants them; as in the Case of Grisbrook and Fox, if an Administrator made by the Ordinary sells the goods of the Intestate; and with the money thereof arising, payeth the debts of the Intestate, and afterwards he who was made Executor proves the Will, he shall not avoid such sale of the goods, because he hath made it according to Law, and hath done no more than an Executor is compelled to do: So 12 H. 7. 25. b. If a Bailie cut down trees to repair an ancient pail, the same is good: So 4 H. 7. 14. b. If he payeth a Quit Rend, it is good. And note, 4 Mariae Br. Tenant by Copy, 27. That the Lessee of a Manor, in which there are Copyholds, after the death of the Copyholder, may admit the Heir of the Copyholder to the Land; and so he may do, who hath but an Estate in the Manor durante bene placito: and yet it seems by the Book, that such a Tenant of the Manor, cannot reserve and lessen Rend, but he ought to reserve the ancient Rent, or more. Coke contrary; And first he said, that he who holdeth over the life of the Cestuy que use, doth not gain any Fee where he comes in first by right, for that he is but Tenant at sufferance, 35 H. 8. Dyer 57 in the Case of the Lord Zouch, Cestuy que use for life, the remainder over in tail makes Lease for life of the Lessee, he dieth, the Lessee continueth his Estate, and the opinion of the justices of the Common-Pleas, and of others was, that he is but a Tenant at sufferance, for the Lease was not any discontinuance of the Remainder, because he had authority by the Statute of Rich. 3. to make a Lease, and that is intended of such Estate which he might lawfully do; and this is our Case, and so it is adjudged already. As to the second point, I grant, that Tenant for years, or at will, or at sufferance is Dominus pro tempore, but there is a difference as unto granting of Copies by them: For it was adjudged 25 Eliz. that they might grant Copies which are to be granted upon surrenders, made by Copyholders: As if a Copyholder doth surrender to the use of another, they may accept of such a surrender, and grant the Lands by Copy to him to whose use the surrender is made; But if a Copyholder dieth, they cannot grant voluntary Copies de novo. And he said that Popham, who argued the said Case in 25 Eliz. That this difference was agreed, and so adjudged in one Sleers Case. And so 17 El. in the Case of one Stowley, where the Case was, That a Manor was devised to one, and the Devisee entered and granted Copies, and afterwards it was found that the Devise was void, and it was there holden that Copies made by such Devisee upon surrenders, were good, and were not to be avoided; but contrary of Copies made after the death of Tenants upon voluntary grants. I grant, that when Cestuy que use dieth, the Estate for life is utterly void and gone; and therefore he is in by wrong, but he cannot thereby gain so great an Estate as a Disseisor, because he came in at the first by right. Atkinson put a difference betwixt Tenant at will, and Tenant at sufferance; for Tenant at will shall have aid, but contrary, of Tenant at sufferance, as the Book is, 11 H. 4. a Release to Tenant at will is good, contrary to Tenant at sufferance; when after the death of Cestuy que use he holdeth over, he hath some interest, scil. to this purpose, that he shall not be a wrong doer, for he is neither Abator nor Desseisor, therefore not a wrong doer, and then if he be in by a right, or rightfully, he is then Dominus pro tempore, and then the grants made by him by Copy are good. 7 H. 7. 3. Tenant at sufferance, was to justify the distraining the of another damage feasant. Coke, True, it is, the beasts of a stranger, but not of the Tenant of the freehold: Gaudy justice, The Lessor cannot have Trespass against him before entry; not because he is not a wrong doer, but because it is his folly that he doth not enter: All the justices did hold with the Plaintiff against the Copy granted: and that he which granted it was but Tenant at sufferance, and not a Desseisor, nor had gained the Fee, because he came in first by right: And therefore they awarded, that if the Defendant did not show better cause, that judgement should be entered for the Plaintiff. LX. Trin. 29 Eliz. In the Exchequer. IN the Exchequer Chamber, there was this Case: An Indenture Tripartite, was betwixt three, A. was one of them, and he covenanted with them, Et quolibet eorum. And the Covenant was, that the Land which he had aliened to one of them, was discharged of all encumbrances; and he to whom the limitation of the Lands was, but a Writ of Covenant sole. Buckley argued, that it was well brought, and cited the Case of 6 E. 2. Br. Covenant 49. where one covenanted with twenty, to repair the Sea-banks, and he did not repair against two of them, and they two brought a Writ of Covenant solement, and the Writ holden maintainable, because they only were damnified, and so he said in this Case: But notwithstanding this, it was afterwards, 5 Co. 18. viz. M. 30 Eliz. adjudged by the whole Court, that the Covenant did not lie by one of them only, but aught to be brought by them both. LXI. Carter 's Case. Mich. 33 Eliz. In the Common Pleas. A Being seized of the Manor of Staple in Odiham, 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham, suffered a common Recovery of the whole, and by Indenture expressed the uses in this manner, viz. of all his Lands and Tenements, in Odiham, to the use of his wife for life, the remainder over, etc. And of the Manor of Staple, to the use of his youngest son in tail; but by the clear opinion of the whole Court, although the Manor of Staple was in Odiham, yet the wife shall have nothing therein; for the intent of the party was, that the son should have the same, and his wife the residue; and accordingly judgement was given. LXII. Cobb and Prior 's Case. Mich. 33 Eliz. In the Common Pleas. THE Case betwixt Cobb and Prior was this; A man seized of Lands in Fee, devised the same to his Wife during the minority of his Son, upon condition, that she should not do Waste during the minority of the said Son, and died; The Wife married a Husband, and died; the Husband committed Waste: It was holden by all the justices, That the same was not any breach of the Condition; and judgement was entered accordingly. LXIII. Taylor and Brounsal 's Case. Trin. 33 Eliz. in the Common Pleas. IN an Information upon the Statute of 32 H. 8. by Tailor against Brounsal, the Case was, That John Brounsal was seized, and gave the Lands to T. B. and the Heirs of his body, etc. the Remainder to R. B. and the Heirs male of his body, the Remainder to the right Heirs of J. B. T. B. died, having issue a Daughter; and R. B. made a Lease for years of the Lands: And it was holden by the Court to be no maintenance within the said Statute, for he in the Remainder might make a Lease for years: Then it was given in Evidence, That a common Recovery was had against the Husband and Wife with a single Voucher, and so. the Remainder limited to R. B. destroyed, and that after that Recovery R. B. made the Lease: To which it was said by the other side, That the said Recovery was never executed, and no discontinuance of the Remainder, and then the Lease made by R. B. was good: and the truth of the Case was That such a Recovery was had, and an Habere facias seisinam awarded and returned, but no Execution was in truth had upon it, nor the Recoveror never entered: And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say, That no Execution was thereof, was the Question? and therefore all the matter was found by special Verdict. It was also given in Evidence, That the Land was given to T. B. and the Heirs males of his body; and then when the Daughter, which is not in truth inheritable, entereth, if that Entry, she being privy in blood to R. he Uncle, shall be a Disseisin, or Abatement, etc. as in the Case of Littleton, where the youngest Brother entereth after the death of the Father; for in such case, the youngest Son doth not get any Freehold, but is but a Tenant at sufferance. Anderson, When the Daughter enters, and takes a Husband, who leaseth for years, and the Lessee entereth, the same is a Disseisin. Periam doubted it, for he said, When the younger Son entered, the Freehold was in him, which Anderson doubted. LXIV. Maunsel and Vernon 's Case. Trin. 33 Eliz. In the Common Pleas. IQ Debt by Maunsel against Hen. Vernon Esquire, who came in by Capias, i compulsary Process, and pleaded, That he was Hen. Vernon Lord Powis, and so a Baron of the Parliament, and demanded judgement of the Writ. (Note, some said, That if the Defendant had come in by Issue joined, or gratis, and not by compulsary Process, he could not have pleaded this Plea, or any other Misnosmer.) The Plaintiff replied, That the Defendant is an Esquire, absque hoc, that he is Lord Powis, and a Baron of the Parliament; and as the jury was ready at the Bar to try this Issue, this matter was objected. And Anderson conceived, That this Plea to the Writ was not good, for the name of Lord is not any degree, as Knight, Duke, Earl; nor is it parcel of the name, nor parcel of addition; and therefore it is no Plea in abatement of a Writ: and all the Writs of Parliament directed to Barons to summon them to Parliament, shall have their Names, Surnames, and Additions: as if they be Knights, Knights, and if Esquires, they shall be named Esquires; and if a Bond be made by J.S. Lord R. the Writ shall not be so, for the King by his Writ doth not name any one Lord; but otherwise it is of Duke, Earl, etc. for these are Offices of Dignity, and parcel of their Names, and not only Additions. Windham and Periam contrary; and they conceived that there was no difference in this point betwixt a Lord and an Earl; for which cause the Court being in doubt, although that the Exception was entered of Record, would have saved the same to the party, and taken the jury de bene esse: but afterwards, because it appeared it was joined in the prejudice of Sir Edward Herbert, who was a stranger thereunto, and whose Title was concerned therein, and there was none on his part to inform the jury; the jury was at last dismissed by the Court. LXV. Penruddock and Newman 's Case. Trin. 28 Eliz. In the King's-Bench. IN an Ejectione Firmae by Penruddock against Newman, 1 Leon. 279, the Plaintiff declared of a Lease made by the Lord Morley, and upon Not-guilty pleaded, the jury found this special matter, (scil.) That W. Lord Mounteagle seized of the manner of D. whereof, etc. became bound in a Statute in such a sum of Money to A. who died; the Executors of A. sued Execution against the said Lord, (scil.) Extendi facias, a Liberate issued, upon which the said Manor was delivered to the Executors, but the said Liberate was not returned: and it was farther found, That the Executors being so possessed of the Manor, the Lord commanded a Court Baron to be holden there, which was done by sufferance and permission of the Executors, and in their presence: at which time the Executors said to the Lord the Conusor. We have nothing to do with this Manor. And upon this Verdict several matters were moved. 1. If the Execution were well done, because the Writ of Liberate was not returned? and as to that, divers Books were cited, 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate, and a Capias ad satisfaciend. and Fieri facias, these Writs are Conditional, Ita quod habeas corpus, etc. Ita quod habeas denarios hic in Curia, 32 H. 8. ca 28. 16 H. 7. 14. but contrary in a Writ of Habere facias seisinam, or in a Liberate, for in these Writs there are not such words; and therefore although they be not returned, Execution done by virtue of them is good enough: See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moiety of the Land, and doth not return the Writ; if the Plaintiff will plead a new Action of Debt, the Defendant may plead in Bar the Execution aforesaid, although the Writ be not returned, nor doth remain upon Record: and it is not like unto the Case of Partition made by the Sheriff, for that must be returned, because that after the return of it, a secondary judgement is to be given, (scil.) Quod Partitio praedict. firma & stabilis remaneat in perpetuum, firma & stabilis in perpetuum tenetur, says the Book of Entries 114. And Egerton, the Solicitor-General, cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield, Earl of Leicester and Tanfields' case. That such an Execution was well enough, although the Liberate was not returned. The second point was, Admitting that it be a good Execution, If the Executors being in possession of the Manor, and suffering the Conusor to hold a Court there, and saying the words aforesaid in the presence of the Lord who is Conusor; if the same do amount unto a Surrender, or not? And it was the Opinion of Wray chief justice; That it was not a Surrender, for that here the words are not addressed to the Conusor, who was capable of a Surrender, but to other persons: And it is not like unto the Case of 40 E. 3. 23, 24. Chamberlains Assize, where Tenant for life saith to him in the Reversion, That his Will is, that he enter upon the Land; the same is a good Surrender, because here is a person certain who may take the Land: But in our case, it is but a general speech, and therefore it shall not be a Surrender. LXVI. Baskervile and Bishop of Hereford 's Case. Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford, and others; the Plaintiff counted, That Sir Nicholas Arnold Knight, was seized of the Advowson in gross, and granted the same to the said Baskervile and others, to the use of himself for life, and afterwards to the use of Richard Arnold his Son in tail: Proviso, That if the said Nicholas died, his Heir being within the age of twenty three years, that then the Grantees and their Heirs should be seized to themselves and their Heirs, until the said Richard had accomplished the said age. Sir Nicholas died, Richard being but of the age of fourteen years; by force whereof the Grantees were possessed of the said Advowson, etc. and afterwards the Church became void, and so it appertained to them to present. Exception was taken to the Count by Sergeant Gawdy, because the Plaintiff had not averred the life of Richard, upon whose life the interest of the Plaintiff did depend: and he compared the same to the Case of the Parson, which had been adjudged, where the Lessee of a Parson brought an Ejectione Firmae, and it was found for him; and in Arrest of judgement Exception was taken to the Declaration, because the life of the Parson was not averred; and for that cause the judgement was stayed. Anderson, Upon the dying of Sir Nicholas, Richard being but of the age of fourteen years, an absolute Interest for nine years vested in the Grantees, not determinable upon the death of Richard; or rather, they are seized of a Fee determinable upon the coming of Richard to the age of 23 years. Rhodes and Windham justices, contrary; and that here is an Interest in the Grantees determinable upon the death of Richard within the term; for if Richard dieth without issue within the term, the Remainder is limited over to a stranger. And as to the Exception to the Count, it was argued by Puckering Sergeant, That the Count was good enough; for although the life of Richard be not expressly added, yet such an averment is strongly implied, and so supplied: For the Count is Quod dictus Nich. obiit, dicto Richardo being of the age of fourteen years, & non amplius, by force of which the Plaintiff was possessed of the said Advowson, quo quidem Nich. sic possessionato existente, the Church voided: and possessed he could not be, if not that the said Richard had then been alive; and that is as strong as an Averment: See 10 E. 4. 18. In Trespass for breaking of his Close, the Defendant pleaded, That A. was seized, and did enfeoff him, to which the Plaintiff said, That long time before A. had any thing, B. was seized, and leased to the said A. at will, who enfeoffed the Defendant, upon whom B. reentered, and leased to the Plaintiff at will, by force whereof he was possessed until the Defendant did the Trespass; and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will, for that is supplied by the words, scil. virtute cujus, the Plaintiff was possessed until the Defendant did the Trespass: See also, 10 H. 7. 12. In an Assize of Common, The Defendant made Title, that he was seized of a House and a Carve of Land, to which, he and all those whose Estate he hath, etc. had common appendent, and doth not say, That he is now seized of the House; but the exception was disallowed; for seisin shall be intended to continue until the contrary be showed. LXVII. Morgan and Chandler 's Case. Trin. 29 Eliz. In the King's-Bench. IN Debt for Arrearages of Rent, by Morgan against Chandler, It was found by special Verdict, That the Land out of which, etc. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life, the remainder to the Lady Bourcher, her daughter, and the heirs males of her body, the remainder to King H. 8. in Fee; And it was ordained by the same Act, Quod omnes concessiones & dimissiones, Anglice, Grants and Leases, factae vel in posterum fiendae, by the said Marchioness, of the Lands aforesaid, per script. Indentat. dict. Marchio. bonae & validae, in Lege erunt, durante termino, etc. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendering 10 l. Rent, who assigned the same to the Defendant. The Lady Bourcher died without Issue, the Marchioness died; and if the Lease should now bind the Queen, was the Question: And it was moved by Clark of Lincoln's-Inn, That it should, for the King was party to the Act of Parliament; and those Estates for life in Tail, and in Fee, are all as one Estate, and derived out of one Estate, and the Estate of the King is bound with the Lease; and it was moved by Broughton, That the Lease should not bind the Queen, and so by consequence not her Patentee; and he cited a Case, adjudged upon a like Act, scil. the Statute of 35 H. 8. by which it was enacted, That the Lady Katherine, Wife of the said King, should be as a Feme sole, and that she might make Leases, etc. In that case, the Leases should not bind the King or his successors; for the said Act did not extend to make the Leases good, but only against Coverture. And it was observed by Clench, justice, that in the Act of Parliament now in question, It is expressly provided, that the Rend reserved by the Marchioness, should go to the lady Bourcher, but no provision made, that it should go to the King, and therefore it is not reason that the King should be bounden: But another matter arising upon the pleading, the point did not fall in judgement. LXVIII. Backhouse and Spencer 's Case. Trin. 29 Eliz. In the King's-Bench. SAmuel Backhouse brought a Writ of Annuity against Alderman Spencer of London, 1 Roll. 228. and declared upon a Grant of an Annuity for term of years, and depending the Action, the term expired. And it was the clear opinion of the whole Court, that the Plaintiff could not have judgement, for the judgement in this Writ, is, Quod querens recuperet annuitatem praedictam, and now there is not any Annuity in being, See 34 H. 6. 20. 6 Co. Higgin's Case. 1 Inst. 285. a. 14 H. 7. 31. 19 H. 7. 16. LXIX. Mich. 29 Eliz. In the Common-Pleas. IN a Writ of Partitione facienda, The Defendant prayeth Aid; and the Plaintiff counterpleads the Aid, upon which counterplea, they are at issue, and it is found for the Plaintiff: It was adjudged, that same is peremptory to the Defendant; and the judgement shall be, Non quod respondeat, sed quod Partitio fiat, etc. LXX. Rolston and Chamber 's Case. 1 Leon. pa. 282. Mich. 29 Eliz. In the Common-Pleas. ROlston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible entry, against Chambers, and upon issue joined, it was found for the Plaintiff, and damages assessed by the jury, and costs of suit also, and costs also the incremento adjudged, and all were trebled in the judgement, with this perclose Quae quidem damna in toto se attingunt ad, etc. and all by the name of damages; and it was objected against this judgement, That where damages are trebled, no costs shall be given, as in Waste, etc. But afterwards it was clearly agreed, that not only the costs assessed by the jury, but that which was also the incremento adjudged, should be trebled, and so were all the Precedents, as it was affirmed by all the Prothonotaries; and so are many Books, scil. 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57 12 E. 4. 1. Book of Entries, 334. and judgement was given accordingly: It was also agreed, that the party so convicted of the force at the suit of the party should be fined, notwithstanding that he was fined before upon an Indictment for the same. LXXI. Wren and Bulman 's Case. Mich. 29 Eliz. In the Common-Pleas. 1 Len. 282. Rolston and Chambers. WRen brought an Action upon the Statute of 1 and 2 of Phil. & Ma. for unlawful impounding of Distresses against Bulman, and was Nonsuit, and it was moved by Shuttleworth, Serjeant, If the Defendant should have costs upon the Statute of 23 H. 8. and it was adjudged, that he should not; and that appears clearly by the words of the Statute, etc. For this Action is not conceived upon any such matter which is comprised within the Statute: And also the Statute upon which this Action is conceived, was made after the said Statute of 23 H. 8. which gives costs, and therefore the Statute of 23 H. 8. and the remedy thereof cannot extend to any Action given by 1 and 2 Phil. & Ma. And so Rhodes, justice, said it was adjudged 8 Elizabeth. LXXII. Merry and Lewes 's Case. Mich. 29 Eliz. In the Common-Pleas. MEry brought an Action upon the Case against W. Lewes, 3 Len. 91. Executor of David Lewes, late Master of St. Katherine, juxta London, and declared, That the said David in consideration, that Quaedam pars domus fratrum & sororum Sanctae Katharin. fuit vitiosa & in decasu, The said Merry ad requisitionem dicti Davidis repararet eandem, assumed to pay to the said Merry all such moneys that the said Merry expenderet in such reparations; And farther declared, That eandem partem Domus praedict. reparavit, etc. and upon Non assumpsit, it was found for the Plaintiff; In arrest of judgement it was objected, That the count was too general, Quaedam pars domus: For the Plaintiff ought to have showed specially, what part of the house in certain, as Hall, Chamber, or other Rooms, but the same was not allowed: Another objection was, because it is set forth in the consideration, that the Plaintiff, Ad requisitionem dict. Davidis repararet; and the Plaintiff declared, Quod reparavit, generally, without saying, 2 Cro. 404. ad requisitionem dict. Davidis reparavit, and that is not the reparation intended in the Declaration, scil. Reparatio ad requisitionem, but a reparation of his own head, and at his pleasure, and for that Case judgement was reversed. LXXIII. Brasier 's Case. Mich. 29 Eliz. In the Common-Pleas. NOTE, It was agreed in the Case by all the justices, and by the Prothonotaries, That if the Disseisor levy a Fine, and the Disseisee in the preservation of his right against the said Fine, enter his claim in the Record of the Foot of the Fine, that the same is not any such claim as shall avoid the Statute of 4 H. 7. See for this Case of the Lord Zouch, in Plowden's Commentaries. LXXIV. Ralph Morris 's Case. Trin. 29 Eliz. In the King's-Bench. RAlph Morris and his Wife, libelled in the Spiritual Court, for that the Defendant called the Wife of one of the Plaintiffs, Veneficam, Sortilegam, & Incantatricem Daemoniorum; and now came the Defendant into this Court, and surmised, that the matter of the Libel is determinable by the Common Law, and thereupon prayed a Prohibition, and it was holden by the Court, That although the offence of Witchery be in some cases triable by Law, yet the same doth not take away the jurisdiction of the Spiritual Court; and therefore, to call one a Witch, generally an Action will not lie at Law, as it hath been adjudged; But to say, that he hath bewitched such a one, an Action will lie at Law. Wray, Such Witchcraft as is made Felony by any Statute, is not punishable in the Ecclesiastical Court, but in case of slander of such Witchcraft, upon such slanderous words of Witchcraft which is not Felony, the Ecclesiastical Court shall punish the same, and afterwards in the principal Case, a Consultation was awarded. LXXV. Bardens and Withington 's Case. Trin. 29 Eliz. In the Common-Pleas. A. Is bound in a Statute to B. and sows the Land. B. extends the Lands, which are delivered unto him in execution; it was adjudged in this Case, that the Conusee should have the Corn sowed; The same Law in case of a Recognizance. LXXVI. Smalman and Lane 's Case. Trin. 29 Eliz. In the Common-Pleas. THE Case was, a Capias upon an original Process, was delivered to the new Sheriff of Warwick against Lane, at the suit of Smalman. And the Sheriff informed the Court, that before that the Process was directed to him, That the said Lane was taken in Execution by the old Sheriff, upon a judgement given against him in the King's-Bench; and that the said old Sheriff had imprisoned the said Lane, by force of the Execution in his own house, and there he remained, and prayed the advice of the Court, what return he should make upon that matter, because the said Lane was never in his possession; for all the other prisoners which were in the Gaol, and in the ordinary Prisons, were delivered to him, and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered. And it was the opinion of all the justices, That by the Law, the old Sheriff ought to deliver the body of him who is in his custody by view, to the new Sheriff; and such Prisoners ought to be brought unto him to view, and from that time, the Law shall adjudge such Prisoners to be in the possession of the new Sheriff, and not before; for he is not bound to go to them, not being in the ordinary Prison of the County. Anderson, The new Sheriff may return, That the said Lane is in Execution in custodia sua, and so charge himself; For although the Office of the old Sheriff be determined, yet it is not an escape, so long as the party be in custodia and not at large. Periam contrary, It is an escape in the old Sheriff as soon as his authority is determined, the Prisoner not delivered: See now C. 3. part 71. Wesby's Case. LXXVII. Megot and Broughton and Davie 's Case. Mich. 29 Eliz. In the King's-Bench. 1 Cro. 105. IN an Action upon the Case upon Assumpsit, it was found by Nisi prius for the Plaintiff, and afterwards before the day in Bank, one of the Defendants died, and after judgement given, the other Defendant brought a Writ of Error in the same Court, where the judgement was given, and assigned an Error in fact: scil. the death of one of the Defendants pendant the Writ, Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said, that the Case is not like the Case of an Action of Trespass, for every Trespass done by many, is several by each of them, but every Assumpsit is joint, and not several. Another point was moved, If the Court could reverse their own judgement? Quaere. LXXVIII. Farrington and Fleetwood 's Case. Trin. 29 Eliz. In the Exchequer. THE Case upon the Statute of 31 H. 8. of Monasteries, was this, 3 Len. 164, 165. ante 333. Plus. The Abbot and Convent of A. etc. 29 H. 8. made a Lease of certain Lands for three lives, to begin after the death of one F. if they so long live: and afterwards, 30 H. 8, within a year before the dissolution, they make another Lease to Fleetwood: If the first Lease in the life of the said F. be such an Estate and Interest, as by virtue of the said Statute shall make the second Lease void? was the Question; for it was not in esse, but a future Interest. Manwood, All the reason that hath been made for the second Lease, is, because the first Lease is but a possibility; for F. by possibility may survive all the said three, and so it shall never take effect: But notwithstanding, be it a possibility or otherwise, it is such a thing which may be granted or forfeited, and that during the life of F. And note the words of the Statute; If any Abbot, etc. within one year next before the first day of this present Parliament, hath made, or hereafter shall make, any Lease or Grant for years, life or lives, of any Manors, etc. whereof and in which any Estate or Interest for life or years, at the time of the making of any such Lease or Grant, than had his being or continuance, and hereafter shall have his being or continuance, and then was not determined, etc. shall be void, etc. And here is an Interest, and that not determined at the time of the making of the Lease to Fleetwood. And of such Opinion were all the Barons, and divers other justices; and therefore a Decree was made against the Lease, etc. LXXIX. Beaumond 's Case. Trin. 29 Eliz. In the Exchequer. NOte, it was holden by all the Barons in the Exchequer, Owen Rep. 46. That a Duty which is not naturally a Debt, but by circumstances only, as Debt upon a Bond for performance of Covenants, or to save harmless, may be assigned over to the Queen for a Debt; but in such case, a present Extent shall not issue, but a Scire facias shall issue forth, to know if the party hath any thing to plead against such Assignment. LXXX. Goddard 's Case. Trin. 29 Eliz. In the Exchequer. IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire, 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised, and the Disseisor aliens the Lands, and afterwards the Disseisee doth re-enter? Manwood said, That the Land shall not be charged with a Fine for alienation without licence, because the Title of the Alienee grew under the wrong of the Disseisor; but the person of the Disseisor shall be charged with such Fine. Tenant of the King in Capite makes a Lease for life, the Lessee for life makes a Feoffment in Fee without licence, the Lessor reentreth, neither his person nor the Land shall be charged: But if my Feoffee upon Condition maketh a Feoffment without licence, and I re-enter for the Condition broken, now my Land shall be charged with the Fine upon Alienation, for the Feoffee was in by me by good and lawful Title, because he had power to make a Feoffment over, although subject to the Condition. So if Tenant in tail, or the Husband seized in the Right of his Wife, make a Feoffment in Fee, and afterwards the Land is recontinued, the Fine accrueing for Alienation without licence shall bind the Land: And if Tenant for life loseth issues, and dieth, the Lands shall be charged with the same. LXXXI. The Lord of Northampton and Lord St. John 's Case. Trin. 29 Eliz. In the Exchequer. 2 Roll. 195. Co. 12. 1, 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona & catalla felonum & fugitivorum within the Isle of Ely; and one dwelling within the Island was attainted of Felony, to whom another was indebted by Obligation, and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's, who within his Manor had also bona & catalla felonum & fugitivorum; and at the payment the Lord St. John claimed the money: But all the Barons of the Exchequer were clear of Opinion, That the Lord St. John could not have the money, for the place of payment nihil operatur, but the Obligation is the substance which came to the Lord of Northampton within the Isle of Ely. Popham, the Queen's Attorney, claimed the money for the Queen, for the Lord of Northampton cannot have it; for by the general words of bona & catalla felonum things in Action do not pass, but by express words they well pass, otherwise not: And therefore day was given to the Lord of Northampton to show his Letters Patents. LXXXII. Ards and Smith 's Case. Mich. 30 Eliz. Rot. 2737. In the Common Pleas. 3 Co. 8. EDward Ards brought a Replevin against Smith and Reading; the Defendants made Conusance as Bailiffs to Robert Chamberlain, and shown, That one A. was seized of the Manor of Keney in Fee, whereof the place where is parcel, and so seized, gave the said Manor to Richard Chamberlain and Sibil Fowler, and to the Heirs males of the said Richard: Richard and Sibil intermarry, and have issue Edward; Richard dieth, Sibil dyeth, Edward hath issue Leonard, and dieth; Leonard hath issue Francis, and dieth; Francis hath issue Robert, in whose Right the Conusance is made, and dieth; Robert entereth: The Plaintiff in bar of the Conusance showeth, That one B. was thereof seized, and thereof enfeoffed one Cottesford, than Master of Lincoln College, and the Fellows thereof: after which the said Leonard, Son and Heir male of the said Edward, 25 H. 8. did release to the said Master and Fellows with warranty, the said Robert, in whose Right the said Conusance is made, being Heir male of the said Robert, and demanded judgement, if against that warranty, etc. The Defendants confess the Gift before to the said Richard and Sibil, and that they had issue the said Edward; but farther showed, That after the death of the said Richard, Sibil, and Edward her Son leased the said Manor for years to one Mascal, who entered, and was possessed: Edward suffered a common Recovery unto the use of the Recoverors, who entered and ousted the Lessee, and enfeoffed the said B. who enfeoffed the said Master and Fellows; the Lessee reentered, Sibil died, Leonard, Son and Heir apparent of Edward, released to the said Master and Fellows with warranty; Edward died, Leonard died, and thereupon a Demurrer was by the parties: and the matter was, If this Recovery being suffered by him in the Remainder in tail upon an Estate for life, the Recoverors entering upon the Lessee for years of the Lessee for life, and putting him out, and afterwards the Lessee for years re-entering: If now any Estate did remain in the College, after the Reentry, which might work a Release? Snag, Serjeant,, argued, That a sufficient Estate did remain in the College, upon which a Release might enure; i.e. an Estate to begin after the death of Sibil, and the expiration of the term for years: and although rei veritate, Edward was not Tenant of the Freehold at the time of the Recovery, yet such an exception doth not lie for the Issue; and to that purpose he cited the Opinion of Fairfax, 12 E. 4. 14. Shuttleworth, Serjeant, contrary; This Recovery works nothing but by way of Estoppel and Conclusion, and therefore the issue in tail may well disclose the matter, and avoid such Recovery: and the better Opinion in the Case cited before, 12 E. 4. is, That such a Recovery against such a person is utterly void, which see there by ●ittleton, Choke and Brian. 14 E. 4. 2. and also 28 Ass. 17. and Dyer 8 Eliz. 252, 253. Land conveyed to the Husband for life, the Remainder to the Wife in tail, the Remainder to the Right Heirs of the Husband and Wife; The Husband and Wife suffer a common Recovery, the Husband hath issue and dieth, and afterwards the Wife dieth, the issue shall avoid the Lease and Recovery. See also the Case betwixt Hare and Snow, Blow 20 Eliz. 514. where a common Recovery was had against Tenant in tail, and his Wife, whereas in truth the Wife had nothing in the Land whereof the Recovery was suffered: It was holden, that the issue in tail, or any other person, might show the truth of the matter; for he shall not be bound by any Estoppel which his Father hath admitted, by joining in Voucher with his Wife, for he is not subject to the Estoppel; and therefore it was holden, That if the Wife in such case might sue Execution to have in value, yet the Son in tail might oust him of it. So 8 H. 4. 122. a Praecipe is brought against Tenant in tail, who prays in aid of a stranger as Tenant for life, who enters into the aid, and bars the Demandant, and afterwards the Tenant in tail dieth; his issue is at large to claim the Estate-tail, although the mouth of his Father was estopped as to it. So Tenant in tail brought a Quod ei deforceat, and counted upon an especial tail, whereas in truth it was a general tail, and recovereth, and dieth; the said Recovery shall not conclude the issue. See 33 H. 6. 18. And in our Case, when the Recoverors enter by force of the recovery, the same is a wrong to the Lessee for years, and also to the Tenant for life; for the one is ejected, and the other disseised; and therefore the Reentry of the Lessee doth defeat all the Estate which was in the College under that Recovery: and here the Entry of the Lessee for years shall avoid all the Estate which was conveyed to the College by the Recoverors. See 44 E. 3. 30, 31. Bassingborn's Assize: Land is given to A for life, the Remainder to B. for life, the Remainder to C. in Fee: A. aliens in Fee, the Ancestors collateral of him who hath the Fee doth release to the Alienee with warranty; B. enters, here the whole warranty is lost, and all the first Estate is recontinued: So in our Case, by this Entry of the Lessee, the whole Estate of the College under the Recovery is defeated, so as nothing remains in the College, upon which the Release can enure, and then there is no warranty in the Case: And as the Case is here, Edward, who suffered the Recovery, dieth before the descent of the warranty by the death of Leonard, by whom the Release with warranty was made; by the death of which Edward the Interest which the College had in the said Manor by the said Recovery, and the Estoppel of it, was determined and utterly gone, and then the warranty descending afterwards cannot attach upon the possession which was at the time of the warranty made, which was by the conclusion, which by the death of Edward is determined and removed by an Eign Title, i. the Entail. As if Tenant in tail doth discontinue, the Discontinue is disseised, Tenant in tail releaseth with warranty to the Disseisor, the Disseisee entereth in the life of Tenant in tail, who afterwards dieth; the warranty works nothing for the cause aforesaid. And also he put this Case, Tenant in tail of Land grants a Rent-charge in Fee, and an Ancestor collateral releaseth to the Grantee with warranty, and dieth, the Tenant in tail dieth, now the issue is bound: but if Tenant in tail dieth before him who maketh the Release, now the Rent is determined by the death of Tenant in tail, and then the warranty cannot attach upon it. At another day the Case was moved, and conceived in these words, (scil.) Tenant for life, the Remainder in tail, Tenant for life leaseth for years, a Recovery is had against him in the Remainder in tail, living Tenant for life, the Recoverors enter, and oust the Lessee for years, the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands, the Lessee enters, he against whom the Recovery was had dieth, the Releasor dieth, etc. It was holden, that the Entry of the Lessee, before that the warranty had attached upon the possession which passed, had avoided the warranty. And the Lord Anderson conceived, That the Recovery should not prejudice the issue in tail, but that the issue shall Fauxifie the same: And if Tenant in tail be disseised, and so disseised suffereth a common Recovery, his issue shall not be barred, quod fuit concessum per omnes: And afterwards another matter was moved, (scil.) That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis & Scholaribus Lincolniensis Collegii in Oxonia, where the true name of the College, as is confessed by the Record in the Plea pleaded, is, Custos sive Rector, Socii & Scholar's Lincolniensis Collegii in Oxonia, etc. It was adjourned. See this Case reported, (3 part, Lincoln College Case.) LXXXIII. Hall and the Bishop of Bath 's Case. Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath, and others: The Incumbent pleaded, Quod ipse nihil habet, nec habere clamat, etc. nisi de praesentatione Georgii Sidenham militis, not named in the Writ, and demanded judgement of the Writ, upon which the Plaintiff did demur in Law: And it was argued by Drew, Sergeant for the Plaintiff, That the Writ was well brought without naming the Patron: for if a Quare Impedit be brought against the Patron and Incumbent, and the Patron dieth, 1 Leon. 45. pendant the Writ, the Writ shall not abate: 9 H. 6. 30. It might be, that the Plaintiff did not know, nor could tell, who presented the said Incumbent, but he findeth the Incumbent a Disturber by his Incumbency: and if of necessity such Patron ought to be named, then if such a Usurper should die before the Writ brought, he which hath cause of Action should be remediless. And by Anderson and Periam, the Writ is good enough for the reason aforesaid: And Anderson put this case; If A. wrongfully by Usurpation doth present, and his Clerk is received; and afterwards A. having gained the Patronage, grants it over to B. Against whom shall the Quare Impedit be brought? Walmsley, Against B. which Anderson doubted. LXXXIV. Hugh 's Case. Mich. 32 Eliz. In the Common-Pleas. IN a Formedon, the Writ was, That A. Dedit Aliciae filiae suae, and to J.S. and to the Heirs of their two bodies begotten, and it was showed in abatement of the Writ, That the name of the Wife is put before the name of the Husband, To which it was said by the Court, that if such a Writ be brought against the Husband and Wife, and the name of the Wife be put before the name of the Husband, the Writ shall abate; and if in the Case at Bar it had appeared, That the Donees at the time of the Gift, were Husband and Wife, upon such a matter disclosed the Writ should abate; but that doth not appear plainly to the Court. LXXXV. Mich. 32 Eliz. In the Common-Pleas. NOTE, It was holden by the Court, 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant, who loseth by default at the Grand Cape; that he may reverse the same by a Writ of Error; but where an Infant appeareth by Guardian, and afterwards loseth by default, there he shall never avoid it: for if any default be in the Guardian, the Infant shall recover against him in a Writ of Deceit. And afterwards, the judgement in the first case was reversed. LXXXVI. Mich. 32 Eliz. In the Exchequer-Chamber. NOTE, In the Exchequer-Chamber, before the Lord Chancellor, The two chief justices, and the chief Baron; a Writ of Error was cast upon a judgement given in the Court of Exchequer; and it was agreed, Quod propter absentiam Dom. Thesaurarii Angliae, They ought not, nor could receive the said Writ; and the Statute of 31 Eliz. doth not help the matter, for that extends but to discontinuances, which before the Statute many times happened for the not coming of the Chancellor or Treasurer, and not to give Conusance in a Writ of Error in the absence of the Treasurer, etc. LXXXVII. Lacie and Fisher 's Case. Mich. 32 Eliz. In the Common-Pleas. IN a Replevin by Lacie against Fisher, The Defendant pleaded, that the place where, etc. is called Spicold, and holden of the Manor of Easthall by certain Rent, and made Conusance as Bailiff of the Lord of the said Manor; and issue being joined hereupon, It was tried by the jury of the Visne of Spicold, and it was moved in arrest of judgement, that the issue was mis-tried; For the Visne ought to have been of Spicold and Easthall also: Web and Richmond's Case. And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond. M. 31 Eliz. in the same Court. LXXXVIII. Corbet 's Case. Mich. 32 Eliz. In the Common-Pleas. THE Case was, That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling, and before notice of that suit, he paid divers other debts of the Intestate, due by specialties; so as he had not Assets to pay the debt in demand, having Assets, at the day of the Teste of the original, and now the Defendant appearing, pleads the same special matter, and concluded, And so nothing remained in his hands. And it was holden per Curiam to be a good Plea: See 2 H. 4. 21, 22. LXXXIX. Sir William Pelham 's Case. Pasch. 31 Eliz. In the Exchequer. 1 Co. 41. THE Case, short put, was this: A. Tenant for life of a Message, etc. the remainder in tail to B. with divers remainders over: A. by Deed indented and enroled, bargained and sold the Message, etc. so conveyed to Sir William Pelham in Fee, who afterwards suffered a common Recovery thereof, in which A. is vouched; and so a common Recovery is had and executed, and all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail; or if it be a forfeiture, was the Question. Altham of Gray's-inns argued, that here is a forfeiture: First, it is to see, if a common Recovery suffered by Tenant for life (who is also Bargainor in this case) be a forfeiture or not by the Common Law, if no Execution be sued upon the same Recovery. Secondly, If the Recovery be executed, if he in the Remainder may enter for the forfeiture. When Tenant for life bargaineth and selleth the Message, Post. 65. acc. 1 Len. 264. 1 Inst. 251. b. acc. 1 Inst. 330. b. etc. although upon it an Estate in Fee be limited, yet nothing passeth from him, but that which he may lawfully pass, and that was the Estate for the life of the Bargainor, for such Estate only might lawfully pass; and here the Bargainee is but Tenant for the life of another, and when with his own consent he suffers a common Recovery and that without right, the same is a forfeiture. By matter in fact, a particular Tenant may commit a forfeiture, as well as by matter of Record: By matter in fact he cannot commit a forfeiture, if the Reversion be not thereby pulled out of him in the reversion: As if Lessee for ten years maketh a Lease for 1000 years, the same is no forfeiture, for by that the Reversion is not touched; but if he in matter of Record do any thing which sounds to the disinheriting of him in the Reversion, although in truth it doth not touch the inheritance, yet it is a forfeiture; which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion, it is a forfeiture. And by Finchden and Belknap, he cannot plead to 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, and the Lessor brought an issue, 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 disinheritance of the Plaintiff, i. the Lessor. 19 E. 3. t. Receipt 14. where Tenant for life pleads in chief, or doth not 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 render the same, it is no forfeiture: 22 Ass. 31. Tenant for life is impleaded by Covin betwixt him and the Demandant, and pleads in chief without aid prayer, upon which judgement is given, he in the Reversion may enter: In a Quid juris clamat, against Tenant for life, who pleaded faulty, 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. of default, Reddition; but he in the Reversion may enter by the Common Law: 22 E. 3. 2. In a Scire facias, to execute a Fine against Tenant for life, who pleaded to the Enquest, whereas in truth, the Land in demand was not comprised within the Fine, and judgement is given for the Demandant in the Scire facias, that he in the Reversion may enter: In the principal Case here, there is apparent and manifest covin; for the Tenant for life is vouched without cause, and this Recovery is by assent, and is to the use of the Bargainee, who is Tenant for the life of another, and therefore by the Common Law, he in the Reversion may enter before the Execution be sued. And it is well known, that these common Recoveries are used to dock a Remainder 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 vouchee, and it is found for him; he in the Reversion hath no remedy, but a Writ of Right, and if such vouchee enters into the Warranty, and loseth by Action tried, or by default, etc. That Book is to be intended of a Recovery executed; for there in such a case, he in the Reversion may not enter, but is put to his Writ of Entry by the Common Law, vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prays in 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 he is put to his Writ of Entry, Ad terminum qui praeteriit, vel de ingress. ad come. Legem, and therein shall falsify the Recovery. And there by Brook, Vourcher of a stranger is not a cause of forfeiture; for he doth not disaffirm the Reversion to be in the Lessor. And he vouched, 24 E. 3. 68 where Tenant for life pleaded in the Right without aid prayer; and so he argued, That before execution, he in the Remainder might enter, but after execution, he is put to his Action; but in our Case, although Execution be sued, 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 then no Laches of entry shall be imputed unto him, and then he shall not be driven to his Action: As if Tenant by the Courtesy maketh a Feoffment with Warranty, and dieth, and the same descendeth to his Heir within age, yet he shall enter, although that he had not avoided the Warranty in the life of his Ancestor; And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case: For Sir William Pelham, the Bargainee, 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: The words of the Statute are, or otherwise for the term of life or lives quo ad nom. As upon the Statute of 20 E. 1. which gives receipt, i. de defension juris; the words are, Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae, vel feodum talliatum, vel sub nomine Dotis, vel alio modo ad terminum vitae, etc. Also, although that he who entereth at the time of the recovery was not next in the Remainder to the particular Estate, yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery, and at the time of the entry, he in the immediate Remainder was dead, and then he next in Remainder: See 15 E. 4. 9 by Littleton, If I grant my services to one for life, and he in a Praecipe brought against him, plead in the Right; or granteth unto another the said services in Fee, the same is not any forfeiture, because it is not any 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; To that it was easily to be answered, That where Tenant for life doth any thing which sounds to the disinheriting of him in the Reversion by matter of Record, although it doth not divest or otherwise prejudice the Inheritance, yet it is a forfeiture. Coke contrary; Here in our Case there is not any Covin: Sir William Pelham, the Bargainee, he was deceived by the Bargainor, for he did not know but that the Bargainor was seized in tail at the time of the Bargain, and it was lawful for him to do other act in the farther assurance of his bargain; and it was also lawful for him to vouch his Bargainor; and although the Bargainor vouched a stranger, yet it is not a forfeiture, 39 E. 3. 16. Aid prayer of a stranger is a forfeiture, and the reason thereof is, because he acknowledgeth the Reversion to be in a stranger, and that is the cause of the forfeiture. See Book of Entries 254. Where upon aid prayer, the party to have aid showeth special matter; but in our Case, Sir William Pelham hath vouched his Bargainor, and that not without cause, for he hath a Warranty from him; and the Demandant could not counterplead it, for he had seisin, by force whereof he might make a Feoffment: As unto the Case of 14 E. 3. Tit. Receipt 135. Less for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day, in that case it is said, that he in the Reversion may enter. It is true, that he may enter in the Receipt, but not into the Land for forfeiture, for then Fitz. would have abridged the Case in title of Entry Congeable, and not in the Title of Receipt: and the Book of 5 E. 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 done, and according to the Covenants of his purchase: And although the Recovery be by agreement, yet it is not therefore a forfeiture; for if the Tenant for life voucheth truly, it is no forfeiture. Before the Statute of West. 2. cap. 3. which gave Receipt to the Wife, and to those in the Reversion where the particular Tenant is impleaded, and maketh default, vel reddere noluerit, there was no remedy in such cases, but by Writ of Right, but no entry, and that was for the reason of the credit which the Law gave to Recoveries, for if they might enter; wherefore is Receipt given? but that was in two cases only: But afterwards, because it was found, that many particular Tenants being impleaded would plead faintly, the Statute of 13 R. 2. gave receipt in such cases. And upon what reasons were these Acts and Statutes made, if in such cases the entry was congeable? 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 thereof, so as they could not before judgement pray to be received, to remedy which mischief, the Statute of 32 H. 8. was made, by which all Recoveries had against Tenant by the Courtesy, or otherwise for life or lives, by agreement of the parties of any Lands whereof such particular Tenant is seized shall be void, as Tenant by the Courtesy, etc. should be void against him in the Reversion; and yet there was an evasion to creep out of that Statute; for such particular Tenants, would make a Feoffment with Warranty, and then the Feoffee should be impleaded in a Writ of Entry, and he vouch the Tenant for life, who would aver, and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants, etc. For the remedy of which mischief, the Statute of 14 Eliz. was made, by which it is provided, That such Recoveries had where such particular Tenants are vouched shall be void, if such Recovery be by Covin betwixt them: 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 is found, that this Recovery was with their assent, and that was lawful as the case is; for they might agree to have such a Recovery for farther 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 he had also a Remainder in tail, although not immediately depending upon the Estate for life, which he had cut off; there it was not merely a feigned Recovery: See 5 E. 4. 2. and 24 H. 8. br. Forfeit. 87. where Tenant for life being impleaded in a Praecipe, voucheth a stranger, the same is no Forfeiture, for the same doth not disaffirm the Reversion: but contrary 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 both the chief justices, to know their Opinions upon this point; 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 conceided, that the Right of him in the Remainder was not bound: And he said, That after the Recovery was executed, that he in the remainder could not enter: See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawful, infinite Suits would follow thereupon, which would be much to the Discredit of common Recoveries, which are now the Common Assurances of the Land. As to the objection of the Enfancy, the same will not help the matter. Br. Sau. Default 50. 6 H. 8. A Recovery had against an Infant, in which he voucheth and loseth, is not erroneous; contrary of a Recovery upon a default: And if an Infant, Tenant in tail, suffer a common Recovery, the same is a discontinuance, for in such Recoveries 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 Bendloes Reports, 5 Eliz. Tenant for life, the Remainder over to a stranger in Fee, Tenant for life is disseised by Covin; in a Praecipe quod reddat against the Disseisor, he voucheth the Tenant for life, who enters into warranty generally, and voucheth over the common Vouchee: It was adjudged, That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant, for he was but Tenant in Law, because Vouchee; and also that the Recovery was a good bar to him in the remainder, notwithstanding that he was within age at the time of the Recovery. And afterwards at another day the Case was argued by the Barons; and Clark Baron conceived, That the Entry of him in the remainder was congeable: It hath been said, That Sir William Pelham did not know that the Bargainor had an Estate but for his life, or that any other person had any remainder therein; the same is not to any purpose to excuse him: for 42 E. 3. Every Purchasor ought at his own peril take notice of the Estates and charges which are upon the Lands of which he is Purchasor; and the Law presumes that none will purchase Lands without advice of Council, and without knowing the Titles to the Lands. And although divers Statutes have been made to provide against the practices of particular Tenants, yet it 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, cause of forfeiture being given before the judgement: See 5 Ass. 3. and 22 Ass. 31. to that purpose: For where Tenant for life is impleaded, he ought to attend upon him in the reversion, and to expect instructions from him in defence of his Title, etc. And therefore if he maketh default, or confesseth Action, the same is a forfeiture: And as to the supposed recompense, the same shall not help this Case, for this is a common recovery, and nothing else but an Assurance: And Recoverors they 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 suffereth the Recovery, if no other use be expressed. And he also held, That when Tenant for life bargains, and sells his Lands by Deed enroled, although no Fee passeth, 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, and the Disseisor dieth, and afterwards the Infant dieth, that he in the Remainder might enter. Gent, Baron, argued to the same intent; and he said, That if Tenant for life suffereth a Recovery, the same is not simply a forfeiture, for he may have a warranty upon a Release or Confirmation made to him. Attornment doth not give a Right, but is only a Consent, yet if he who hath not any thing in the Reversion will levy a Fine thereof unto another, and afterwards the Conusee brings a Quod juris clamat against the Tenant of the Land, and he attorn, it is a Forfeiture. Manwood, Baron, to the same intent; this is a new Case, and I have not seen nor read the Case in any Book, nor seen any precedents; 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: the Dignity of judgements in reputation of Law hath been urged, which ought to stand in force until they be reversed by Error or Attaint: And also Littleton 481. hath been urged, where upon the Statute of West. 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 faint Action hath recovered against Tenant for life by default, and afterwards the Tenant for life died, 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 Reader upon the said Statute; and in truth it is but a mere conceit. And as to the main point, he took this difference; Such Recoveries in which the title of the Demandant stands indifferent 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 that the Tenant for life hath not dealt 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 Recovery he in the remainder shall have a Formedon in the remainder, or a Writ of Right, and shall not put out him who recovered, without any Action, and that by the common Law. Then came the Statute of West. 2. c. 3. which gave unto the Wife a Gui in vita, upon a Recovery had against the Husband by default, where before she had not any remedy, but only Writ of Right: and notwithstanding, si ulterius quaeratur, si 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 it, notwithstanding the judgement given before for him: and that Statute gave Receipt, or Writ of Entry, ad terminum qui praeteriit; and that Statute is to be intended of such Recoveries where a good Title or indifferent is, so as non Constat Curiae, if it be good, or not? After that Tenant for life was driven unto a new shift, and would not make default, or lose for not pleading, but he would plead, but that faintly; for the remedy of which mischief, the Statute of 13 R. 2. which gave Receipt in such case; the particular Tenant being restrained by this Statute, he juggled yet, and practised to suffer a Recovery secretly, without notice of him in the Reversion: for the remedying of which mischief, the Statute of 32 H. 8. was made, and that makes such Recovery had against such a particular Tenant void against him the Reversion. It hath been objected, That the said Statute of 32 H. 8. did not give any forfeiture in this case, but makes the Recovery void; and therefore he in the Reversion ought to stay until after the death of the particular Tenant: To that I shall speak after. But here our case is of a common Recovery, and it doth appear to the Court, that the Demandant hath not right, for the Tenant might have barred him: Also this Recovery is not to the use of the Recoveror, but to the use of him who was Tenant in it; and in truth it is nothing else but an assurance: and in these feigned Recoveries the Recoveror comes in under the Title of the Tenant to it, and not paramount, as in 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 Recovery; otherwise it is where the Recovery is upon a good Title. See Statute of Glocest. cap. 11. where upon default of the Tenant, Receipt is given for Lessee for years; yet if the Tenant vouch, upon default of the Vouchees the Lessee for years shall be received: and now Receipt of Lessee for years is out of the Book, for by the Statute of 21 H. 8. cap. 15. he may falsify the Recovery: but no Receipt lieth in the case of a common Recovery, for that he who recovers cannot put out 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 bargain and sale is enroled, than it is a forfeiture; I am not of such Opinion: for although that the Enrolment be of Record, yet the Deed is not of Record; for against a Deed enroled, a man may plead Infancy, although none can plead Non est factum. Also he held, That although by the bargain and sale, and the Enrolment of it, the Bargainee had not a fee, for by such act the Reversion is not removed; yet by the Recovery, and the Execution of it, the Bargainee hath gained a fee out of the Lessor, for the Recovery is to the use of the Bargainee, against whom it was had. It hath been objected, that here is only a Voucher, which paradventure was lawful in this case, by reason of a warranty paramount, or of a Release or Confirmation with warranty: and two Cases have been vouched to that purpose, viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe, voucheth a stranger, the Demandant counterpleads the Voucher, which is found for him, he in the Reversion hath no remedy but a Writ of Right; so if the Vouchee had entered into the warranty, and lost, etc. As to that book, we ought not to conceive, That every Case reported in our books is Law; but let us observe, of what authority that case is; truly it is the conceit of the Reporter himself, for he puts the Case, and resolves the case, but no judge or Sergeant is named in the case, etc. The other case is 5 E. 4. 2. b. Note by Heydon 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 that which he hath in value shall be in me in lieu of my former Reversion; as a Release to the Tenant for term of 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 hath a good Title, so as the Tenant or the Vouchee, as Heydon saith, do not know how to bar the Demandant, there such Voucher of a stranger is no forfeiture, nor such Recovery suffered upon it, for against his Will, volens nolens, he suffered it: but if the Tenant hath good matter to bar the Demandant, and no good cause of Vourcher, nor any warranty, as the matter is in the case of a common Recovery, there the Voucher of a stranger, or suffering of a Recovery, is a forfeiture of his Estate. And here in our case if the Demandant hath not any Title, the Tenant or Vouchee hath not any warranty; but the Tenant might have barred the Demandant if he would: And he said, That the Voucher only doth not make the forfeiture, but rather the recovery; for when judgement is given, and Execution is had, than the Fee is plucked out of the Reversioner: vide 6 R. 2. If Tenant for life claimeth a Fee, the same is a forfeiture: but here Sir William Pelham hath done more, for he hath gained Fee by the judgement, therefore à fortiori it shall be a forfeiture. But let us see a little what meddling or attempts by the particular Tenants are causes of forfeiture, and what not: 5 Assis. 3. A. brought a Writ of 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 confessed the Action, upon which judgement is given; B. enters, and his Entry adjudged lawful, for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion: and there it appeareth, 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. receipt 135. where Tenant for life pleads in chief, and prays in aid of a stranger, where he might bar the Demandant, and would not, the same is a forfeiture: Also 2 E. 3. 2. and 27 E. 3. where Tenant for life, in a Quid juris clamat, attorned to the Conusee upon a Fine levied by him that had not any thing in the Land, the same was a forfeiture; and yet the Attornment doth not divest the Reversion out of the Lessor: 50 E. 3. 7. and 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; she is Tenant in Dower of the assignment of a stranger, and pleads to the Title; the Demandant recovereth, she hath lost her Dower, for she hath not pleaded as she ought, being a particular Tenant, etc. 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 than he had. 5 H. 5. 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 upon condition come ceo, etc. all these are forfeitures. In the principal Case here, the Tenant who suffers his Recovery doth not plead at all to defend the Right: but whereas he might have barred the Demandant, he giveth strength to his pretended Title, and makes it a perfect Title; and by suffering this Recovery and judgement to pass upon it, he hath taken the Reversion out of the Lessor to whom he owed Fealty, and therefore he shall forfeit his Estate. And without any doubt it is apparent to the Court, that the Demandant in this Recovery hath not any Title, but the Recoverors in such cases are but as Assignees or Purchasers, which appears by the Statute of 7 H. 8. ca 2. which gives Distress and Avowry to Recoverors, 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 great mischiefs and inconveniencies in this Realm: and there was great reason for it; for Tenant in tail might by the common Law alien his Lands post prolem suscitatam, and now he hath an Inheritance, and may do Waste, But he was so restrained by the Statute of West. 2. that all the Realm, and the Subjects in it, were inveigled thereby; jointures of Wives, Leases of Fermors, Mortgages to Creditors, Statutes, and other Assurances, were defeated by the deaths of Tenants in tail, which was both against the common Law, and also against all Conscience. These matters coming to the knowledge of the justices, and the mischiefs thereupon following being very frequent, and it appearing that the Tenant in tail was a dangerous fellow, and that there was no safe dealing with him, they took consideration of them: and considering also with themselves, That Lineal Warranty and Assets, and Collateral Warranty without Assets, did bar the Entail, upon this consideration they grounded the practice and usage of common Recoveries. So as by that means Tenant in tail, hath Potestatem alienandi, as he hath at the Common Law; and by this means, right was done to the Common Law because its authority was restored; and thereby injury was done to no man: But as for Tenant for life, he never had Potestatem alienandi. And as to that which hath been said, That the recovery shall stand in force until after the death of Tenant for life; and in our Case here, Tenant in tail is alive; Truly, if the Law should be such, great mischiefs would follow: For then great jointresses, the Widows of great persons, having assurances to them of great and stately Houses, and of Lands furnished with Timber, of great yearly value, might suffer such Recoveries; and so having plucked the Fee out of the Heirs, might commit waste, and the same should be dispunishable, which would be an intolerable mischief; and so he concluded, that the suffering of a Recovery was a forfeiture, and judgement, Trin. 21 Eliz. was given, and entered accordingly. XC. Noon 's Case. Trin. 31 Eliz. In the Exchequer. DEBT was brought in London, against one as Executor, and upon fully administered pleaded, it was found for the Plaintiff, who assigned the same to the Queen, whereupon a Scire facias issued out of the Exchequer against the Defendant, into the County of Dorset, The Serhiff returned Nulla bona, etc. which Scire facias was upon a Constat of goods in another County; It was agreed by all the Barons, that the Debt was well assigned to the Queen: And also that the Scire facias might issue forth of another Court, than where the Record of the judgement remained; and that upon a Constat of goods, in another County than where the Writ is brought, or where the party is dwelling, he may well have a Scire facias in another County. But the return was challenged, because contrary to the verdict: As in a Replevin, No such beast, is not a good return, but Averia elongata; or Nullus venit ex parte querentis ad monstrand. averia: And here the Sheriff might have returned, Devastavit, which well stands with the Verdict, 5 H. 7. 27. But as to that, it was said by the Barons, That it is true, that the Sheriff of the County where the Writ was brought, is concluded by the Verdict, to make any return contrary to it; but the Sheriff of another County shall not so be; but the Sheriff of the County where the Writ is brought aught to return Devastavit, etc. and thereupon the Plaintiff shall have Process into another County; But the Question farther was: If a Scire facias upon Testatum shall issue into another County, before that the Sheriff of the County where the Writ is brought, had returned a Devastavit? for some conceived, That a Devastavit where the Writ was brought, ought first to be returned, and then upon a Testatum, Process should issue forth into any County within England; But others were of opinion, That without a Devastavit returned upon a Testatum, Process might be sued forth immediately into any other County. William's said, If I recover goods by Action brought in Midd. I may upon a Testatum, have a Capias into any foreign County. XCI. Western and Wield is Case. Trin. 31 Eliz. In the Exchequer. IN a Writ of Account brought in London, the Defendant pleaded, Never his Receiver, etc. which was found for the Plaintiff, and judgement given, that the Defendant should account; Afterwards the Defendant brought his Writ of Privilege; and if the same should be allowed after judgement? was the Question: Coke, It shall be allowed, for the Defendant hath not surceased his time. This judgement to account is not properly a judgement, for no Writ of Error lieth upon it before the account be ended: Manwood, Regularly, after judgement, no privilege shall be allowed, but that is to be intended of a judgement ended; but here, notwithstanding this judgement, the Action is depending, and therefore he conceived that the privilege should be allowed in this case. It was objected, That then the Plaintiff should be at great mischief, for he should lose the advantage of his Trial; for he must begin again, and plead again, and have a new Trial. Clark, the Plaintiff shall have benefit of his former Trial by way of Evidence. XCII. Brian and Cawsen is Case. Trin. 27 Eliz. In the Common-Pleas. Rot. 1353. 3 Len. 115. IN an Action of Trespass by Brian and his Wife, and others, against Cawsen; That William Gardiner was seized in Fee, according to the custom of the Manor of C. of certain Lands, and surrendered them to the use of his last Will; by which he devised them in this manner; i. I bequeath to John Th. my House and Land in M. called Larks and Sun: To Steph. Th. my House and Land, called Stokes and newman's, and to Roger Th. my House and Lands, called Lakins and Brox. Moreover, If the said John, Stephen or Roger, live till they be of lawful age, and have issue of their bodies, lawfully begotten, than I give the said Lands and Houses to them and their Heirs in manner aforesaid, to give and sell at their pleasure; but if it fortune one of them to die without issue of his body, lawfully begotten, Then I will that the other brothers, or brother, have all the said Houses and Lands in manner aforesaid: and if it fortune the three to die without issue, in like manner, Then I will, that all the said Houses and Lands be sold by my Executor, or his Assigns, and the money to be given to the poor: The Devisor dieth; John, Stephen and Roger are admitted according to the intent of the Will, Roger dieth within age, without issue, John and Stephen are admitted to his part, John comes of full age, and hath issue, J. and surrenders all his part of the whole, and his Estate therein,, to the use of Stephen and his heirs, who is admitted accordingly; Stephen comes of full age, John the father dieth, Stephen dieth without issue, John the son, as cousin and heir of Stephen is admitted, according to the Will, and afterwards dieth without issue, The Wives of the Plaintiffs are heirs to him, and are admitted to the said Lands, called Larks and Sun, and to the moiety of the Lands, called Lakins and Brox, parcel of Lands where, etc. by force whereof they enter into all the Lands where the Trespass is done, and it was found, That A. sole Executor, died intestate, and that Cawsen the Defendant is cousin and heir of the Devisor, and that he as heir, entered, and did the Trespass. First, it was agreed by all, That by the first words of the Will, the three Devisees had but for their lives. But Fenner and Walmesley, who argued for the Plaintiffs conceived, that by force of the latter words (scil.) If the said John, Stephen and Roger, live till they be of lawful age, and have issue of their body, lawfully begotten, Then I give the said Lands and Houses to them and their heirs, in manner aforesaid, etc. that they have Fee; and the words (in manner aforesaid) are to be referred, not to the Estate which was given by the first words, which was but for life, but to make them to hold in severalty, as the first Devise would, and not jointly, as the words of the second Devise do purport: And Fenner said, It had been resolved by good opinion, That where a Fine was levied to the use of the Conusee and his Wife, and of the heirs of the body of the Conusor, with divers Remainders over, Proviso, That it should be lawful to the survivor of them, to make Leases of the said Lands in such manner as Tenant in tail might make by the Statute of 32 H. 8. Although those Lands were never devised before the Fine, yet the Wife survivor, might demise them by force of the Proviso, notwithstanding the words in manner, etc. So if Lands be given to A. for life, upon condition, the remainder to B. in manner aforesaid; these words, in manner aforesaid, shall refer unto the Estate for life limited to A. and not to the Condition, nor to any other collateral matter. The words, If they live until they be of full age, and have issue, are words of Condition, and shall not be construed to such purpose, to give to them by implication an Estate tail; for the words subsequent are, That they shall have to them and their heirs, to give and sell at their pleasures, by which it appeareth, that his intent was not to make an Estate tail; for Tenant in tail cannot alien or dispose of his Estate, etc. And as to the latter words, And if it fortune they three to die without issue, etc. these words cannot make an Estate tail, and the express limitation of Fee in the former part of the Will, shall not be controlled by implication, out of the subsequent words: As if Lessee for forty years deviseth his term to his Wife for twenty years, and if she die, the remainder of the term to another, although she survive the twenty years, she shall not hold over. And here, the second sale appointed to be made by the Executor, shall not take away the power of the first sale allowed unto the Devisees after issue. Snagg and Shuttleworth, Sergeants, to the contrary: And they said, that the Defendant hath right to two parts, for no Inheritance vesteth in the Devisees until full age and issue; and because two of the Devisees died without issue, they never had an Inheritance in their two parts, and so those two parts do descend to the Defendant, as heir to the Devisor, no sale being made by the Executor; These words, If John, Stephen and Roger, are to be taken Distributive, viz. If John live, etc. are to be taken Distributive (scil.) If John live until, etc. he shall have Inheritance in his part, Et sic de reliquis: As if I have right unto Lands which A. B. and C. hold in common, and I by Deed release unto them all, the same shall inure to them severally, 19 H. 6. And here, these latter words, If they three die without issue, it seems to be but an Estate tail: See to that purpose, 35 Ass. 14. 37 Ass. 15. For a man cannot declare his intent at once, but in several parts; all which make but one Inheritance, and so it is said by Persay, 37 Ass. 15. we ought to adjudge upon all the Deed, and not upon parcel. And see Clatche's Case, 16 Eliz. Dyer 330, 331. And it was said, That if I give Lands to one and his heirs, as long as J. S. hath heirs of his body, the same is a Fee-simple determinable, and not an Estate tail, Quaere of that. Then here the Fee-simple is determined by the death of the Devisees without issue, and therefore the Lands shall revert to the heir of the Devisor, especially there being no person in rerum natura, who may sell, for the Executor before any sale by him made, died intestate; and if he had made Executors, yet the Executor of the Executor could not sell, which see, 19 H. 8. 9, 10. And afterwards, the justices resolved, That no Estate tail is created by the Will, but that the Fee-simple is settled in them when they came to their lawful age, and have issue; so as the residue of the Devise is void: And judgement was given for the Plaintiffs. XCIII. Hil. 29 Eliz. in the Common Pleas. THE Case was this, (viz.) By the Civil Law the Parson ought to have his Tithe by the tenth Ridg: And in a great Field there was Corn upon the Arable Land, Roll. 646. and Grass upon the Head Lands; and in a Suit for Tithe Hay, and Raking of the Corn, the Defendant did prescribe, to pay the tenth Shock of Corn for all the Corn, Hay and Raking of the Corn; and the Prescription was challenged not to be good, for it is upon the matter a Prescription of Non Decimando, for the tenth Shock is due of common Right, and so nothing is for the Hay and Raking: It was holden by all the justices, That for tying of Horses upon the Head Lands, and eating of the Grass and Corn together, that the Prescription was good: But the doubt was, when the Grass is made into Hay, which is upon the Head Lands, If it be a good Prescription then, and discharge for the Hay, because it is another thing than what is growing upon the Land? But in the end all the justices agreed, That by the Civil Law (ut supra) the tenth Ridg is due for Tithe Corn; 1 Cro. 446. 475. therefore for the reaping, binding and shocking, it is a reasonable Prescription, that the party shall have the Hay upon the Head Lands in recompense of the said other things, and the Hay upon the Head Lands is but of little value. XCIV. 29 Eliz. chaloner and Bowyer 's Case. IN Assize of Novel Disseisin by chaloner against Bowyer, it was given in Evidence at the Assize, That William Bowyer was seized, and having issue two Sons, and two Daughters, devised his Lands to his younger Son in tail, and for want of such issue, to the Heirs of the body of his eldest Son; and if he die without issue, that then the Land shall remain to his two Daughters in Fee: William Bowyer dieth, the younger Son dieth without issue, living the eldest Son, having issue him who is Tenant in the Assize: It was moved, That notwithstanding that by way of Grant, the Son, living his Father, cannot take as heir, i. by limitation, as Heir to his Father, because that none can be said or held Heir to his Father as long as the Father be alive; yet by way of Devise the Law shall favour the intention of the party, and the intent of the Devisor shall prevail. But all the Court was strongly against it, and held, that as well in Case of Devise, as of Grant, all is one. Whereupon the Tenant produced Witnesses, who affirmed upon their Oaths, That the Devisor declared his meaning concerning the said Will, That as long as his eldest Son had issue of his body, that the Daughters should not have the Land: but the Court utterly rejected the matter; and judgement was given for the Plaintiff. XCV. the Countess of Linnox Case. 29 Eliz. In the Exchequer. IN this Case it was said by Manwood chief Baron, That whereas the Cistercians, etc. had a Privilege, that they should not pay Tithes for their Lands, quas propriis manibus excolant, but their Fermors should pay Tithes: and now by the Statute of 31 H. 8. they are dissolved, That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were: for the Queen cannot excolere; ergo, her Fermors shall be discharged: and so long as the Queen hath the Freehold, her Fermors shall have such Privilege, although she Leaseth for years, or at Will: But if the Queen granteth over the Reversion, than the Fermors shall pay Tithes. More Rep. 915. XCVI. Golding 's Case. Mich. 29 Eliz. In the King's-Bench. IN an Action upon the Case against Gloding, the Case was; 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole, being Tenant for life by Devise of Lands, Leased the same for years, to begin after her death; and afterwards made another Lease, 18 Octob. for twenty one years to the same Lessee, to begin at Michaelmas before; and the Pleading was, Virtute cujus quidem dimissionis: and the Lessee entered Craft. Sanct. Mich. which was before the making of the Lease: And upon the Grant of these two Leases, the consideration of Assumpsit was grounded in an Action of the Case thereupon, and six hundred pounds damages given: And now this was moved in Arrest of judgement. Coke for the Plaintiff; Where two Considerations are laid down in the Declaration, although that the one be void, yet if the other be sufficient, the Action upon the Assumpsit lieth, and damages shall be taken accordingly. And the Grant upon the Assumpsit was, That both the Leases should be assigned to the Defendant; and the Plaintiff hath declared accordingly, although that one of the Leases be void: And the Agreement was, That the Plaintiff should assign totum statum, titulum, & interest suum quae habet in, etc. It appears here in the Pleading, That the Lease was made the eighteenth of October, and the Lessee did enter, and was thereof possessed, Craft. Mich. which was before, and so the Lessee then entering was a Disseisor, But by Coke, the same is not a Disseisin, although that the Lessee entereth before the Lease made; for there was a communication of a Lease, although the Lease was not made before the eighteenth of October; and peradventure it was by assent of the Lessor, in which case it cannot be a Disseisin: but be it a Disseisin, yet in as much as he hath assigned all his interest, quod ipse tunc habuit, the Consideration is answered; and he hath also delivered both the Indentures of Demise, and hath granted all that which he might grant; be such Grant void or good, it is good Consideration enough as to us. Egerton, Solicitor, contrary; In every Action upon the Case upon a Promise, there are three things considerable, Consideration, Promise and Breach of Promise; As to the Consideration in our Case, the Grant of the Lease, which is to begin after the death of the Lessor, is merely void. And as to the second Consideration, it appeareth, That the Lessor at the time of the making of the Lease had but a Right, for he was disseised; for he who was afterwards the Lessee entered before he had any Lease made unto him; and so here is not any consideration to ground the Assumpsit upon: But admit that there be a consideration, yet the Action doth not lie: For 19 Eliz. a difference was taken by the justices, (scil.) When in the Declaration in an Action upon the Case, two or more considerations are laid, and are not collateral, but pursuant: As if I own you an hundred pounds, and I say, That in consideration that I own you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I own you: If you bring an Action upon the Case against me for the hundred pounds, and lay in your Declaration both considerations, although you do not pay me the ten pounds, yet the Action lieth: But where the considerations are not pursuant, but merely collateral, and do not depend the one upon the other, As in consideration that you are of my Council, and you shall ride with me to York, I promise to give to you an hundred pounds; there both considerations ought to be performed, or otherwise the Action doth not lie: and so here in the principal Case; the considerations being collateral, they both aught to be performed. Afterwards, upon consideration had of the Case by the Court, judgement was given for the Plaintiff: and it was said by Coke, That there was not any Disseisin in the Case, but he who entered was Tenant at sufferance, by reason of the precedent communication. XCVII. Curtise and Cottel 's Case. Trin. 28 Eliz. In the King's-Bench. THE Case was this, That one Bonham was seized of a Manor, within which there were divers Customary Lands demisable by Copy for three lives: The Lord of the Manor did demise some of those Lands to three Sisters, Habendum to them for their lives successive, for the Fine of 100 l. by them paid; and they being seized accordingly, the eldest Sister, who was Tenant in possession, took to Husband one Chapman; after which the said Lord by Indenture leased the same Land to the eldest Sister, the Remainder to the Husband, the Remainder to the second Sister, and no Agreement was made thereunto by the second Sister by Deed, before or after the making of the Indenture; but four days after the Lease made she agreed to it in the Country, and then took to Husband Curtise, and they entered, claiming the said Land, upon which Entry the Action was brought: The point was, That when the Lease by Indenture was made to the eldest Sister, at which time no agreement was made by the second Sister who was in Remainder; yet when after she agreed, If by that Agreement her Right to the Copyhold were extinct, or not? so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture, the second Sister might come and claim her customary interest, as it were paramount the interest of the eldest Sister, which she claimed by the Indenture. Glanvil, The customary interest of the eldest Sister is extinct upon this matter, by reason of her agreement to it afterwards. Where an Estate is given to one by a lawful act, it shall be adjudged in the party before agreement, until it be disagreed unto; and if the party do once agree, he cannot afterwards disagree unto it. If an Estate be lawfully made to a Copyholder but for years, his whole interest in the Copyhold is determined: and that a Freehold cannot be waived in pais, but only by matter of Record: See 13 R. 2. joint-tenants 13. A Charter of Feoffment was made to four, and Seisin was delivered to three of them in the name of them all; and afterwards the fourth Feoffee came and saw the Deed, and said, That she would not have any thing in the Lands, but altogether disagree unto it; and it was, that that disagreement by word in pais did not divest the Freehold out of her: But when the party doth disagree in a Court of Record, there the Freehold is out of the party ab initio; and if he once agree, he shall not disagree afterwards. See Littl. Sect. 648. Tenant in tail enfeoffeth his Son and Heir apparent, and another, and Livery and Seisin is made to the other, according to the Charter of Feoffment, in the name of the Son also, the Son not knowing of it, nor disagreeing to the Feoffment; the other Feoffee dieth, the Son neither occupies the Lands nor takes the profits of them during the life of his Father; the Father dieth, the same is a Remitter to the Son, because the Freehold is cast upon him, and there is no default in him, and therefore he is remitted: But upon an illegal act is otherwise; for if A. disseise B. to the use of C. in such case nothing is in C. before an express Agreement, for the Disseisin was an unlawful act. And in this Case at Bar, it doth not appear that the eldest Sister is dead, and therefore the Right of the second Sister cannot now come in question. Shute, justice, If the second Sister, at the time of the making of the said Indenture, had agreed unto it, than it had been a full extiguishment, but by an agreement afterwards it is not good. Gawdy, justice, The remainder is in consideration of the Law; and the Estate of the first Sister is not so determined, that any can take advantage of it; for the Lord, against this Lease by Deed indented, cannot enter, or claim any thing: and the second Sister, although she hath not agreed, yet she cannot enter during the life of her elder Sister, for her Remainder takes effect in possession after the death of her said Sister. But if any should take advantage of it, it should be the Lord, if his Deed indented did not stand against him. And afterwards judgement was given against the younger Sister. Clench, justice, was of another Opinion, viz. That the Entry of the younger Sister, notwithstanding that her elder Sister was alive, was lawful: Quaere of that. XCVIII. Wellock 's Case. Trin. 28 Eliz. In the King's-Bench. A Parson, in consideration of twelve pence, granted to one of his Parishioners, That he should hold his Lands discharged of Tithes: It was holden by the whole Court, That the same was no good Discharge, being without Deed, as a Lease of his Tithes. But it was holden, If the Parson afterward sueth the Parishioner for Tithes against the same Grant and Promise, the Parishioner may have an Action upon the Case against the Parson upon his Promise, although he cannot plead the Grant as a Lease. XCVIII. Lawson and Hare 's Case. Trin. 28 Eliz. In the Common Pleas. 3 Len. 178. A Replevin by Lawson against Hare, who avowed for a Leet Fee; and shown how that he, and all those whose Estate he hath in the Hundred of C. have used to hold a Leet, once every year; and that at each time, when such Leet hath been holden, the Inhabitants within the said Leet have used to pay to the Lord of the Leet 16 d. for a Leet Fee; and that the Lords of the said Leet have used to distrain for the same: and shown farther, that 5 Julii 26 Eliz. he held there a Leet, etc. The Plaintiff replied, Absque hoc, that they had used to distrain; and issue being joined, it was found for the Defendant. It was moved in Arrest of judgement, because, that the Defendant had entitled himself to a Leet, by an Estate in the Hundred, and did not show a Deed of it, which was said, he ought to have done; as is 11 H. 4. 48. And of such opinion was Anderson and Windham, justices. Periam and Rhodes justices, contrary, as this case is, and that the Avowant need not show a Deed, But if the hundred itself had been in question, than a Deed ought to have been showed; But here the Avowant entitles himself to one thing, (scil.) a Leet, and a Leet Fee, by reason of the Hundred, and it is sufficient for him to say, That he is seized of the Hundred, etc. although it be by disseisin: for if he hath possession of the Hundred, be it jure, vel injuria, he shall have also all things incident thereunto, for the possession of the Hundred draws to him the Leet, and the Leet, the Leet Fee. But admit in this case a Deed ought to be showed, 1 Cro. 217. 245. we are to see if the same be helped by the Statute of Jeofailes, which extends to defaults in form in Writs, Original or judicial Counts, Declarations, Plaints, Bills, etc. 18 Eliz. cap 14. and such defects are thereby helped. And by Anderson, although that the Avowant be Quasi an actor, yet in Rei veritate, he is Defendant: For although that he is to have return of the , if it be found for him, yet he who fueth the Replevin is the Plaintiff, and if the Defendant will justify the distress, and not avow, he is merely Defendant, and not a Plaintiff, or Actor, no more than in a Pra●cipe quod reddat, The Tenant voucheth and recovereth in value, he cannot be said Plaintiff, or Defendant, and the Avowant cannot be Nonsuit, as the Plaintiff. But Windham and Periam were of a contrary opinion; For Avowry is in lieu of a Declaration, and the Plea of the Plaintiff to the Avowry, is not called a Replication, but a bar to the Avowry. But admit the Avowry be within the Statute, then if the Statute of Jeofailes there extend to help it? And Anderson conceived that it did: But the Plaintiff might have demurred upon the Avowry for the not showing the Deed, and judgement should have been given for him; but when he hath traversed, and the issue found against him, now it shall be intended, that Avowant hath a Deed, although he hath not showed the same. Another Exception was taken, because it is said in the Avowry, That the said Leet was holden, 5 Julii, and then it was void: For the Statute of Magna Charta, cap. 35 requires, that Leets be holden within one Month after Michaelmas and Easter; But that Exception was not allowed: For by Anderson, Windham and Rhodes, by force of the Prescription, The Lord might hold his Leet what day he pleased, and that his Liberty is not restrained by the Statute; and such is the common experience: for the same Statute provides for it, (scil.) Quod quilibet habeat libertates suas quas habuit, & habere consuevit tempore Regis H. avi nostri, vel quas postea perquisiret: And by Rhodes, the said Statute doth not extend but to the Sheriff's Towns, and not to other Leets, which see Br. Leets, 23. upon the Case of 8 H. 7. 1. which was affirmed by him to be good Law; Contrary by Periam, but he granted, that if a Leet hath used to be holden at one day certain, other than that which is limited by the said Statute, the same may so continue, notwithstanding the Statute, for such Liberty is saved by the Statute. And by Anderson and Rhodes; If the King grant to one a Leet to hold Semel quolibet anno, and doth not say, Ad libitum of the Grantee, yet the Grant is good, and the Grantee may hold it at what day he will. C. Goore and others against Dawbeny. 13 Eliz. In the Exchequer-Chamber, Error. A Writ of Error was brought in the Exchequer-Chamber by Goore and Goore, Swinnerton and Tedcastel, against Dawbeny, of a judgement given against them in the Court of Exchequer, in an Action upon the Case, in the nature of a Conspiracy brought by Dawbeny, etc. who declared, That Goore and Goore, were joint Merchants of a stock of many wares, in moieties transported in Barbary, and Swinnerton and Tedcastel were their Factors, and Dawbeny and the Goores were also joint Merchants entire of Merchandizes transported, etc. And the said Swinnerton and Tedcastel were their Factors therein; and that was to merchandise for two years; and shown farther, That the said Plaintiffs did conspire against the said Dawbeny (See the Declaration in the Number Roll, for I could not take it in brief.) Coke of Council with the Plaintiff assigned the Errors; because Dawbeny in his Declaration hath declared, that they were joint Merchants (scil.) the now Plaintiffs, and have conspired against him, and hath not showed the place where they were joint Merchants, or where they were made joint Merchants, and that is issuable, although it be not the principal thing in the Declaration; for that is the fraud: As where Debt is brought for Rent reserved upon a Lease for years the principal matter is the Debt, and the principal Issue is Nihil debet; Yet the Demise is issuable, and Non dimisit is a good Plea: And here the Defendant by the Plea of Not guilty, hath not lost the advantage of Exception aforesaid. And he cited a great Case lately adjudged betwixt Stansam and Matthew, in an Action upon the Case, conceived upon the Trover of a Bond and the Conversion of it to his use; The Defendant pleaded, Not guilty, and it was found against him; And because in the Declaration there was not any place of the Conversion, judgement was stayed. Here in the Declaration are two things, First, the Conspiracy, Secondly, the execution of it,, for the one without the other will not maintain the Action, but here the Conspiracy is not pursued, nor executed according to that which is laid to be conspired. The Conspiracy is laid, That the Factor upon his account demanded 4000 l. of Barbary money, per nomen bona & denariorum summas, and the Execution is laid, That he demanded in allowance of wares delivered to Isaac Abess: And he took a general rule, That a Commander shall never be charged, but where his Commandment is strictly and precisely pursued. Barbary money is included in this word Bona, for it is not current in England: See as to the pursuing of the Commandment; Sanders and Archer's Case, Plow. 18 Eliz. 437. And in our Case, he not only puts the thing, but also the person, for the Conspiracy is that he demanded allowance for goods delivered to Isaac, and his four sons, for Isaac. In the one Case it is pretended, That Isaac and four sons are Debtors; and in the other Case Isaac only: Also here Dawbeny hath allowed and accepted the account of the Factors, against which he cannot have this Action; for it is ignorantia crassa, idque facti, quae non excusat: Also upon such incertain demand as is laid in the Declaration, Dawbeny was not holden to make allowance: i. for so much wares upon a certain bargain made with Isaac; and that was not a lawful demand, and upon such uncertain demand, he was not bound to make allowance; Et hoc modo est ignorantia juris quae non excusat omnino. Also here Swinnerton only accounts and demands allowances, and Swinnerton only was not Factor, but also Tedcastel, and therefore Dawbeny was not bounden to allow that account to Swinnerton, no more than to a mere stranger: And also Dawbeny alone was not to make allowance, for the two Factors were accountable to him, and to Goores also. And so allowance by one of them to whom they are accountable, is not good. One Executor (where the power is committed to two) sells the Land, the sale is void, and two joint Attorneys, etc. one only can do nothing: And here in this Declaration, it is many times alleged, that they were conjunctim Mercatores, conjunctim Factores; But I confess, that one joint Factor, with the express consent of his companion, may account alone; and so of the other, one may by express consent take an Account only. One Factor is no Factor where there are many joint Factors; and in our Case, the two Goores and Dawbeny saw the account, but Dawbeny only allowed of it, and that is not good: As if two Arbitrators are, and one only makes the award, although both hear the matter. 14 E. 3. Fitz. Acc. 72. That the one Accountant cannot account without his companion; but there Parn saith, That it had been adjudged, 6 E. 3. that the one might account without the other: See 41 E. 3. 3. & 9 Tamworth's Case. Tanfield contrary: As to the first Error, it is but conveyance and matter of inducement to the fraud and conspiracy, which is the principal point of the Action; and therefore needeth not to be so precisely alleged: and also by the general issue, they have passed the advantage of it, and all the special matter of the Count is contained in the general issue; for not guilty, goes to all, and includes the whole. Also upon the matter, the jury hath found that they were joint Merchants; and although they were joint Factors, and the one only hath accounted, yet the same account is good enough, for it was made with the consent of the other, as appeareth by the Declaration. Conspiraverunt, & agreaverunt, that Swinnerton in his account, peteret allowance, etc. so there was consent to take the account, etc. and 6 E. 3. it is adjudged ut supra. And that the one joint Factor may account without his companion, is the Law of Merchants; for Factors are oftentimes dispersed, so as they cannot be both present at their accounts, and so it hath been heretofore allowed in the King's-Bench: And as to that that Dawbeny only hath given allowance to this account, the same is good enough: If I promise to two to do any act, the one of them may discharge me from it, and that by word, for it is but a personal thing: Two joint-tenants of a Manor grant the Stewardship thereof to one, and 20 l. per ann. for the exercise of it; if the one discharge him, it is a good discharge as to the service, but yet he shall have his Fee: If the Lord of the Manor grant the Stewardship thereof to another, taking 10 l. per ann. of the issues and profits of his Court there for his Fee: and afterwards the Lord dischargeth the Steward, the same is void; for it is a disadvantage to the Steward, for he cannot have his Fee, if no Courts be holden; but if the Fee be limited to issue out of Lands, there such discharge is good; for there the Steward shall have his Fee although that no Courts be holden there, See 18 E. 4. 8. to that purpose. Egerton, Solicitor, to the contrary; although (as hath been objected) the matter of joint Merchant be but matter of inducement, it is notwithstanding material, and without it the Action will not lie: In Debt, upon Arbitrament, The Plaintiff in his Declaration, aught to show the submission; and although the Defendant pleadeth, Nihil debet, yet if the place of the submission be not showed in the Declaration, all is naught; for although that it be but inducement, yet it is a material inducement; for if no submission, no award, and if no award, no Debt, and then no cause of Action. The Case of 14 E. 3. cited before, there the Accomptants by their Deed, or jointly, or severally accountable at the pleasure of him to whom, etc. Also, because it is set forth in the Declaration, that they were joint Merchants of wares, adventured into Barbary, for the space of two years; the Factor in praying of allowance, aught to show what wares were adventured into Barbary within the said two years. Conspiracy is a thing odious, and aught to be directly proved; and it is not reason, that that which he himself hath once allowed, he himself shall after defeat it, as here he attempts. And he relied much upon the variance between the Conspiracy and the execution of it moved before by Coke, where by the Conspiracy, Isaac is made the Debtor, with his four sons; and in the Execution, Isaac is made the only Debtor, and to that point, he vouched the Case, 3 & 4 Ph. & Ma. betwixt Brown and Nevil, That an award was to be performed, Brown and Nevil's Case. (scil.) an award made between Joh. Brown, for, and in the behalf of John Moor on the one part, and R. Nevil on the other part; and did not show that Moor made the submission, and for that cause it was holden naught: For Moor was a principal person in the award, and Brown but a servant, etc. So in our Case for Isaac. Popham, Attorney General, in an Action upon the Case, The Plaintiff declares, Quod cum the Defendant was indebted to the Plaintiff in 20 l. he promised to pay to the Plaintiff 20 l. Here it needs not, that the Plaintiff show in his Declaration, the place or time in which the Defendant became his debtor, for the promise is the principal matter, and the other matter is but inducement: So if A. in consideration that I at his request have married his daughter, promised to pay to me 100 l. In an Action upon the Case brought by me upon this promise, it is not necessary that I show the place where I married his daughter. In all personal things, where two are chargeable to two, the one may satisfy it, and one may accept of satisfaction, and bind his companion, and yet the one cannot have an Action without his companion, nor both only against one, 18 E. 4. 3. Two joint tenants of a Manor have one Bailiff of it, the one of them assigns Auditors to the Bailiff, who accounts, and is found in arrearages, the same is a good account, and it is holden there, that both, etc. may have Debt upon the arrearages of the account taken by the manner. And if one may assign Auditors, he may also take account, and discharge the accountant against his companion. And he conceived, That this allowance of the account by Dawbeny, did not exclude him of his Actions, but rather gave him cause of Action, Nam Laesus non esset, nisi credidisset; and the Bailiff of my Husbandry, who bargains and sells for me, if upon his account to me, he allegeth and surmiseth, that he hath sold my to one who is decayed, and upon that surmise I allow his account; afterwards, Re comperta, I shall have an Action of Deceit: And in this very Case at the Bar, it was holden in the King's-Bench, That Dawbeny, notwithstanding his allowance of this false account, should have his Action, etc. Note that afterwards, viz. Trin. 32 Eliz. The judgement given for Dawbeny was reversed. CI. Sir William Waller 's Case. Trin. 31 Eliz. In the Exchequer. IN this Case it was moved by Winter, 3 Len. 259. 4 Len. 44. Post 87. That if one hath judgement in Debt, and upon that, within the year and day, sues a Capias ad satisfaciendum, although that he doth not prosecute the same by the space of two or three years, yet when he pleaseth he may proceed thereupon, and he shall not be put to a Scire facias; for a Writ of Execution once sued forth, shall be a continual claim, and the party shall never be put to a Scire facias; and of such opinion was Philip's. Manwood, I grant, that if one hath sued forth a Writ of Execution, and that be continued by Vicecomes non misit breve, for two or three years, yet the Plaintiff may proceed thereupon, and shall not be put to a Scire facias: but if such Writ be sued forth, and not continued, but discontinued by a year and a day, he shall be put to a Scire facias, for it is negligence of the Plaintiff of not continuing of it, which within the year and day he might without Order of the Court, but after the year not by any Order of the Court, etc. CII. Griffin 's Case. Trin. 31 Eliz. In the Exchequer. IT was holden in this Case, That if Lessee for years of a Message grants totum Messuagium suum, the Grantee hath but at Will; but if he grant all his Interest and Estate in such a Message, than the whole Lease passeth: and so it was said to have been lately adjugded in the Case of one Winnibank in the King's-Bench. CIII. Seckford and Wolverston 's Case. Psach. 26 Eliz. In the King's-Bench. THE Plaintiff being Bailiff of the Liberty of Esheld, in the County of Suffolk, the Sheriff of the said County directed a Warrant unto him to arrest the Defendant upon a Latitat retornable in the King's-Bench; by force of which the Defendant being arrested, became bound in the Obligation upon which the Action is brought; the Condition of which is, 1 Cro. 672. 776. Owen Rep. 40. That if the Defendant personally appear in the King's Bench at Westminster, and there to answer, etc. It was moved, that the Obligation was void by the Statute of 23 H. 6. For the form which the said Statute prescribes for Obligations to be taken by the Sheriff, is according to these words, Appear at the day contained in the Bill, Writ or Warrant, and in such place, etc. and that all Bonds taken in other form shall be void. As to the words of surplusage [personally] the justices were of opinion, that the Obligation was well enough, notwithstanding that because, as the Case is, the appearance of the Defendant ought to be in person upon a Latitat, for the Defendant is supposed to be in Custodia Mariscal. And so it hath been adjudged in the Common-Pleas, where the appearance of the party arrested is de jure personal, etc. contrary where personal appearance is not requisite. As to the other matter [and there to answer] Wray put a difference, where the words are [there to answer] that the Bond is well enough, for it is no more in effect, but that he shall appear eo animo ut respondeat. But if the words had been [Appear and Answer] the same is a void Condition, for it may be that the Plaintiff will never declare against him: But Gawdy and Ayliff, justices, were of a contrary opinion, and that the Bond was void by reason of the words aforesaid: but the Court would not give judgement against the Plaintiff, but ex gratia Curiae suffered the Plaintiff to discontinue his Action. CIV. Partridge and Pool 's Case. Pasc. 26 Eliz. In the King's-Bench. IN an Action of Trespass by Partridge against Pool, 3 Len. 97. the Plaintiff did suppose the Battery at D. in the County of Midd. The Defendant justified, by reason of an Assault at S. in the County of Gloucester, absque hoc that he beat the Plaintiff at D. in the County of Midd. upon which Traverse the Plaintiff did demur in Law. 1 Cro. 842. It was argued by Popham, Attorney-general, That the Traverse of the County is good; and he put the Case 21 H. 6. 8, and 9 In Trespass of Battery at D. in the County of York, the Defendant doth justify by an Assault at London, in such a place in such a Parish, and the hurt which, etc. absque hoc, that he was guilty de aliqua transgressione in Com. Ebor. upon which issued a Venire facias into Yorkshire, and as the book is, the Traverse to the County was taken with great deliberation, etc. prout, etc. See also 22 E. 4. 39 And the Traverse de jure ought to be allowed, for the jury of Midd. are not bounden to find the Assault in the County of Gloucester: See 2 Ma. Br. Jurors 50. In Actions upon transitory matters, although they be laid in Foreign Counties, yet the jurors, if they will, may give their Verdict, but they are not bounden to it. Egerton, Solicitor, contrary; And he put a difference, where the justification is local, and where transitory: As in false Imprisonment the Defendant justifies, as Sheriff, the taking of the Plaintiff by virtue of a Capias directed to him at D. within the County of G. where the Plaintiff declares of an Imprisonment in another County, there the Traverse of the County is good; for the Defendant could not take the Plaintiff by force of the said Process in any other County, than where he himself is Sheriff, and so the justification is local: 11 H. 4. 157. But in our case the matter of the justification is merely transitory. And at last, after many motions, it was adjudged, That in the principal Case the County was not Traversable; and so judgement was given for the Plaintiff; Gawdy, justice, being of a contrary Opinion: but by Wray clearly, The jurors are bounden, upon pain of Attaint, to take notice of such a transitory thing done in another County: which see 2 Ma. Br. Attaint 134. 9 H. 6.63. CV. Daw 's and Mollins 's Case. Pasc. 26 Eliz. In the King's Bench. IN an Attachment upon a Prohibition by Daws against Mollins, for that the Defendant traxit Querent. in Curiam Christian. for Tithes of great Trees, sub nomine sylvae ceduae: The Defendant pleaded, that the Loppings for the Tithes of which he sued, were the Loppings of Trees, called Asp, Beech and Oak, de stipitibus prius succisis crescentes: and also for Hornbeams, Maples, Hazels, etc. The Plaintiff, as to the Asp, Oak, and Beech, did demur in Law; and as to the residue, he pleaded, that with part he mended the Hedges, and the rest being de minimo valour, were bound up with the boughs of the Oak, etc. into Faggots; upon which the Defendant did demur in Law. It was argued by Egerton, Solicitor, on the part of the Plaintiff; and he held, That a Wood of common Right ought not to pay Tithes, not because the soil in which it groweth yields other Tithes of the Herbage, but because non renovantur in annum; and therefore at this day no Consultation shall be granted for Quarry, Stone, and Coals: But after came the Statute of Sarum, (vide F. N. B. 51. h.) by which it was agreed, coram Concilio Regis in Parliamento apud Sarum, Quod Consultationes fieri debeant de sylva cedua, eo non obstante quod non renovantur per annum: and see to that purpose the Register 49. Et ulterius, super hoc facta fuit quaedam Consultatio pro Abbate de Notley de sylva cedua: which Statute was afterwards expounded by the Statute of 45 E. 3. cap. 3. not to extend to great Wood of the growth viginti annorum, vel amplius, but only to such Wood which is called Sylva Cedua. And at last, after many motions, it was ruled, That because the Defendant had not showed, that the Trees, (scil.) Oak, Ash, and Beech, were not before cut within twenty years before the last succision, of which the Tithes are now demanded, Tithes shall not thereof now be paid. And as to the other point, That the Hornbeams, Sallows, etc. did grow sparsim amongst the Oaks, and the Owner felled the whole Wood, and caused them to be promiscuously cut into Faggots, and bound up in Faggots together, and the most part of every Faggot was Oak, and the residue was of little value, so as the severance of the Sallows, etc. from the Oak, etc. would not quit the charge; in such case Tithe shall not be paid: but of the other part, If the most part of the Wood be Sallows, etc. and here and there sparsim groweth an Oak, etc. and the Owner cuts down all the Wood, and makes Faggots as before, Tithes in such case shall be paid of them. CVI The Queen and Lord Lumley 's Case. Trin. 26 Eliz. In the Exchequer. Hob. 304. 3 Len. 101. BEtwixt the Queen and the Lord Lumley, it was moved in the Exchequer; Queen Mary seized of the Rectory of D. granted advocationem Ecclesiae de D. If now by this Grant the Advowson passeth as now disappendant, or the Rectory itself passeth as appropriate? or nothing at all passeth? was the Question. And by Manwood, chief Baron, the Advowson doth not pass, but doth remain appropriate; as it was before; for the Church, as it was appropriate by a judicial act, so without such an act it cannot be disappropriate: And he said, That by the Grant of the Advowson, the Rectory did not pass; for by the Appropriation the Advowson is gone, and is not in esse, and so by consequence cannot be granted: And it is not within the Statute of 4 and 5 Ph. and Ma. of Confirmation of Grants of the King; for the said Statute doth only help misrecital, misnaming, mistaking, etc. but here there is no such thing in rerum natura, as the Patentee pretendeth to be passed by the Patent: and if it were in the case of a Subject, nothing would pass; Sand's Case. as it was adjudged in one Sand's Case, 11 Eliz. And he said, that at this day a Parsonage may be disappropriated, but that aught to be by a judicial act, as by Presentment, and not by any other private act of the Proprietor: Roll. 240. Tit. Appropriate. And so he said, a Church was disappropriated by the Lord Dyer, by Presentment, which of late he made unto it. CVII. Herring and Badlock 's Case. Trin. 26 Eliz. In the King's Bench. 3 Len. 94. A Replevin was brought by Herring against Badlock, who avowed for damage-feasant, and shown, That the Lady Jerningham was seized of such a Manor, whereof the place where, etc. and Leased the same to the Defendant for years, etc. The Plaintiff said, That long time before King Henry the eighth was seized of the said Manor, and that the place where, etc. is parcel of the said Manor demised and demiseable by Copy, etc. And that the said King, by such a one his Steward, demised and granted the said parcel unto the Ancestor of the Plaintiff, whose Heir he is, by Copy in Fee, etc. and upon that there was a Demurrer, because that by that bar to the Avowry the Lease set forth in the Avowry is not answered, for the Plaintiff in the bar unto the Avowry ought to have concluded; And so was he seized by the Custom, until the Avowant praetextu of the said term for years entered: And so it was adjudged. CVIII. Moor and Sir John Savage 's Case. Trin. 28 Eliz. In the King's Bench. IN an Action upon the Case by Moor against Sir John Savage and his Wife, for that the said Lady had reported, That Moor was a lying Knave, and a perjured Knave; The Defendant justified, That where an Estate for life absolute was devised to the said Lady by her former Husband, the Plaintiff had deposed, that the said Land was devised to the said Lady, if she kept herself sole: Postea 102, 103. To which the Plaintiff replicando said, Of his own wrong without such cause: Egerton, Solicitor, did demur upon it; for he said, The Plea goeth to all the justification before; for where part of a Plea, (scil.) the justification is matter of fact, and part is matter of Record, there, Of his own wrong, etc. is no good Plea, but there ought to be a special Traverse, absque hoc, that he so deposed, or absque hoc, that the Devise was absolute: And this Plea here, Of his own wrong, etc. goes to matters in fact only, and such which lie in the notice of the jury: See 5 H. 7. 6. Although that divers matters are alleged in the bar, yet this Plea, Of his own wrong without such cause, etc. extends to all, where no matter of Record is alleged in the Plea: As in false Imprisonment, a Capias is directed to the Sheriff, being Defendant, to arrest the Plaintiff, in such case such general Plea is not good; but there he may plead Nul tiel Record: See also 13 H. 7. 3. 21 H. 6. 5. And here a principal matter in the justification is matter of Record, and therefore such a Plea here is not good. Altham contrary, If the principal matter in such justification be matter of Record, than such a Plea is not sufficient; but if the matter of Record be but inducement, than the Plea is good enough: And he vouched 45 E. 3. 7. In Trespass the Defendant saith, That he is Forester of the said Forest of B. and at a Swanmoot it was presented by the Foresters, Verderors, Regardors, and Agistors', That the Plaintiff had taken Dear in the said Forest, upon which the Defendant came to the Plaintiff, and prayed him to find Pledges to answer before justices in Eyre, etc. and he refused so to do, for which cause he kept the Plaintiff until he made agreement, and demanded judgement, if any wrong, etc. and the Plaintiff replicando said, Of his own wrong, etc. and the issue was accepted of by the Court; yet he said the Presentment in the Swanmoot was not matter of Record, but only inducement, and the Request to find Sureties, which he would not, for which cause he took and imprisoned him, the same was the principal matter, and but matter in fact; and therefore he said, that the Plea was good; and he said that in this case the Oath is not on Record. And Coke said, That in the Cases put by Altham, Of his own wrong without such cause, is a good Plea, with an absque hoc unto the matter of Record: See the Book of Entries 320. see 30 H. 8. Action upon the Case 104. without that, that he swore modo & forma: It was adjourned. CIX. Firrell and the hundred of B is Case. Trin. 28 Eliz. In the Common Pleas. IN an Action upon the Statute of Hue and Cry by Firrell against the Hundred of B. The Defendants pleaded, Not guilty, and in Evidence, the Plaintiff, to prove that he was rob, as he had declared, offered to the jury his oath, in making good his Declaration, which Anderson and Periam justices, utterly refused. But Windham affirmed, That such an oath had been accepted in the Case of one Harrinton, where the Plaintiff could not have other Evidence to prove his Cause, in respect of secrecy; For those who have occasion to travel about their business, will not acquaint others what money, or other things they have with them in their journeys: And we see, that in some causes, the Law doth admit the oath of the party in his own cause; as in Debt, the Defendant shall wage his Law: Periam, That's an ancient Law, but we will not make new Precedents, for if such oath be accepted in this Case, by the same reason in all cases where is secrecy, and no external proof, upon which would follow great inconveniencies: and although such an Oath hath been before accepted of, and allowed here, yet the same doth not move us; and we see no reason to multiply such 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 the Receiver of the Lady Rich, and had received the said money for the use of the said Lady, and exception was taken to it by Shuttleworth, but it was not allowed; for the Plaintiff is accountable to the Lady Rich the said money. And it was agreed, that if he who was rob, after he hath made Hue and Cry, doth not farther follow the thiefs, yet his Action doth remain. CX. Large 's Case. Mich. 29 Eliz. In the King's-Bench. 3 Len. 182. THE Case was, A. seized of Lands in Fee, devised the Lands to his wife, until William his son should come to the age of 22 years, and then the Remainder of part of the Lands, to his two sons, A. and John, The Remainder of other part of his Lands, to two others of his said sons, upon condition, That if any of his said sons before William should come to the age of 22 years, shall go about to make any sale of any part, etc. he shall for ever lose the Lands, and the same shall remain over, etc. And before his said son William came to the age of 22 years, one of the other sons Leased that which to him belonged, for 60 years, and so from 60 years to 60 years, until 240 years ended, etc. Bois, A. and J. are joint-tenants of the Remainder, and he said, That the opinion of Audley, Lord Chancellor of England, is not Law, (scil.) where a man deviseth Lands to two, and to their heirs, they are not joint-tenants, as to the survivor, but if one of them dieth, the survivor shall not have the whole, but the heir of his that dieth shall have the moiety: See 30 H. 8. Br. Devise 29. And he said, That this Lease, although it be for so many years; is not a sale intended within the Will, and so is not a jointure. 46 E. 3. One was bounden, that he should not alien certain Lands, and the Obligor did thereof enfeoff his son and heir apparent, the same was held, to be no alienation within the Condition of the Obligation: Of the other side it was argued, The remainder doth not vest presently; for it is incertain, if it shall vest at all; for if William dieth before he cometh to the age of 22 years, it was conceived by him, that the Remainder shall never vest, for the words of the Will are, Then the Lands shall remain, etc. 34 E. 3. Formedon 36. Land is devised to A. for life, and if he be disturbed by the heir of the Devisor, that then the Land shall remain to D. Here D. hath not any remainder, before that A. be disturbed; It was farther argued, that here is a good Condition, and that the Devisee is not utterly restrained from sale, but only until a certain time, (scil.) to the age of William of 22 years. And it was said, that this Lease is a Covenous Lease, being made for 240 years, without any Rent reserved: As such a Lease made for 100 years, or 200 years, is Mortmain, as well as if it had been an express Feoffment, or Alienation. But it was said by some, Antea 36, 37. that here is not any sale at all, nor any lease; for the Lessor himself hath not any thing in the Land demised: As if a man disseiseth a Feme sole, and seizeth the Lands, and afterwards marrieth the disseisee, he shall avoid his own Lease, 5 E 3. One was bound that he should not alien such a Manor, the Obligor alieneth one Acre, parcel of it, the Obligation is forfeit, See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years, and so from 100 years to 100 years, until 800 years be encurred, the same is Mortmain, Vide Stat. 7 E. 1. Colore termini emere, vel vendere. And in the principal Case, if the Devisee had entered into a Statute to the value of the Land leased, by the intent of the Will, the same had been a sale; and such was the opinion of the whole Court: and by the Court, the word in perpetuum, shall not be referred to the words precedent, but unto the words following; (scil.) in perpetuum perdat the Lands. And if a custom be in the case that the Infant of the age of 15 years may sell his Lands; if he make a Lease, the same is not warranted by the custom: And afterwards it was adjudged by the whole Court, that the Lease made as before, was a sale within the intent of the Will of the Devisor. CXI. Brooke 's Case. Hill. 29 Eliz. In the King's-Bench. APpeal of Burglary was brought against Brook, who was found guilty; and before judgement given, the Plaintiff died, And now Egerton moved that judgement should be given for the Queen upon that verdict, or at least that the Declaration in the Appeal should be in lieu of an Indictment, and that the Appealee be thereupon arraigned and put to answer the same. For if the Appellant had been Nonsuit, or released, the Defendant should be arraigned at the suit of the Queen. Coke, God hath now by the death of the party, delivered the Defendant: and it is not like, where the Plaintiff releaseth, for there it is the default of the Act of the party, but here it is the Act of God; and he held it for a rule, That where auterfoits acquit is a good Plea, there also auterfoits convict shall be a good Plea: And it was holden in Sir Tho. Holcroft's Case, Sir Thomas Holcroft's Case. That where the party is convicted at the suit of the Queen, there the Appeal doth not afterwards lie. Wray, If the Appellant dieth before Verdict, the Defendant shall be arraigned at the suit of the King; But if his life hath been once in jeopardy by Verdict, he conceived, that it shall not again be drawn into danger; and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record, and plead auterfoits acquit, and that they said was the surest way. CXII. Ognel and Paston 's Case. 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel, upon an Escape, and the Case was this: Francis Woodhouse was bound in a Recognizance to the said Ognel; Whereupon Ognel sued forth a Scire facias, and upon two Nihils returned, had judgement, and upon that a Levari facias, and then a Capias ad satisfaciendum, upon which Paston the Defendant, a Sheriff of Norfolk, to whom the Capias was directed, took the party, and afterwards suffered him to escape. The Defendant pleaded, That before the said Capias, the said Francis Woodhouse was committed to him, and in his ward continued for Felony; and after the Capias, was indicted thereof, and arraigned, and found guilty, after which he escaped; And all this was found by special verdict: First it was argued, if upon a Recognizance acknowledged in the Chancery an Action lieth; and it was said by Bois, That it doth not lie in the mouth of the Sheriff to say, that this Capias doth not lie in the Case: As if a justice of Peace maketh a Warrant to a Constable, which Warrant is not good in Law, yet the Constable is not to examine that, or to dispute the validity of it, 5 H. 7. And a Capias hath lain in such case, and so it hath been the course for the space of 200 years: and he said, That although Francis Woodhouse was convict of Felony, yet the same is not any discharge of the execution, as 35 H. 6. 8. although the husband be attainted of Felony, yet he is not so dead in Law, but if the King pardon him afterwards, he shall be restored, and his wife shall have Dower; and if he be killed, his wife shall have an Appeal: 12 H. 4. My Villain is attainted, the same is no discharge of his villainage as to me; But if the King pardon him after, he shall be my Villain, 6 E. 4. 4. One is in Execution pro fine Regis, and afterwards is outlawed for Felony, and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party, for there the Execution is not extinct, but only suspended. Godfrey contrary, Capias doth not lie upon a Recognizance; but if Debt be brought upon a Recognizance, and the Plaintiff recovereth, than a Capias lieth; which see 14 Eliz. Dyer 306. Puttenham's Case. 2 H. 4. 6. In Dower the Demandant recovereth her Dower, and damages, and prayeth a Capias ad satisfaciendum for the damages, but she could not have it; for no Capias lieth upon the original; and to the same purpose, see 8 R. 2. Fitz. Execution, 164. 15 H. 7. 15. Capias pro fine lieth for the King, where no Capias lieth in the Original; but no Capias ad satisfaciendum for the party; no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West. 2. cap. 18. cum debitum fuerit recognit. si in electione sequent. execut. habere per Fiere facias, or Elegit, therefore no other manner of Execution; for the Statute hath provided ut supra. And he said, That debt doth not lie upon a Statute Merchant, or Staple: See 15 H. 7. 16. Another reason why a Capias doth not lie in such case, is upon the words of the Recognizance, Et nisi fecerit, tunc concedit, quod summa praedict. levetur de bonis & catallis, terris & tenementis; Ergo, not of the body. And when Woodhouse was convict of Felony, the Queen had an interest in his body, and upon the pardon, the Execution which was suspended during the conviction, is now received: And he confessed the case of Villainage; that during the attainder, the Lord cannot meddle with the Villain in the presence of the King, See 27 Ass. 49. and see 2 H. 4. 65. A. was condemned to B. in certain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate, in Execution upon a Capias ad satisfaciend. and afterwards was arraigned of Felony, and thereof attainted, and committed to the Ordinary, as Clark, Attaint. And the justices commanded the Ordinary, That after that the prisoner had made his purgation, that he should not let him go at large, but should conduct him to the prison of Newgate again: And there is a Quaere made by the Reporter, If after purgation the Ordinary might suffer him to escape; and if he at whose suit he was condemned in Trespass shall have debt against the Ordinary for such escape. At another day the matter was argued by Coke for the Plaintiff, at the Common Law, No Land was subject to Execution, i. no Lands of the Debtor himself; but yet the Lands of the Debtor being descended to his heir, should be chargeable to the Obligee of the Debtor, in which he and his heirs were bound, and that seemed to be very strange; and he conceived, That in that point, custom and usage had encroached upon the Common Law: The Statute of West. 2. c. 13. gave Elegit of the moiety of the Lands; but yet there was not Capias in Debt before, 25 E. 3. cap. 17. before which Statute, it was a general Rule, That not Capias lay at the Common Law, but where the King was to have a Fine, See 35 H. 6.6. At the Common Law Capias did not lie but where the Action is vi & armis, or that the King is to have a Fine; For there was Outlawry at the Common Law in such case. It will be objected, That the Statute of 25 E. 3. which gave Capias in Debt, doth not extend to a Scire facias upon Recovery; That such Process shall be made in a Writ of Debt, as is used in a Writ of Account; and here is no Writ of Debt, but a Scire facias only: If my Debtor upon an Obligation cometh without a Writ, and confesseth the Debt, I shall have a Capias against him, and yet the same is not in a Writ of Debt: Ergo, so in case of Recognizance. Where a Statute speaks precisely of a Writ Original; yet oftentimes by Equity it shall extend to a Scire facias, and other judicial Process: As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit. It shall extend to a Scire facias upon a Recovery in a Quare Impedit, 46 E. 3. 13. And in our case a Capias doth not lie by the Letter, yet it lieth by Equity. And he said, That Statute which helps the Subjects to get their debts and rights, are to be, and have been taken beneficially and liberally expounded, in advantage of the Creditors. And see 48 E. 3. 14. Where a Scire facias is sued upon a Recognizance, a Capias doth not lie, but there it is holden, that in a Scire facias, upon a Recovery in debt, a Capias lieth. And as to this Capias, the Sheriff is but the minister to the Court, and he is not to control the Court, but to accept of the same, as the same is directed to him. It is a common learning in our Law, That although the Court doth proceed inverso ordine, yet it shall not be utterly void, 36 H. 6. 34. judgement given at the Common Law of Lands within the five Ports; for the five Ports in times past, were parcel of the Crown: But of Lands in Wales it was otherwise before the Statute of 27 H. 8. by which Wales is united to the Crown. And although that the Capias erronice Emanavit, the same is but erroneous, and so voidable, and not void, for Error may be as well assigned in the Executione judicii, as in redditione judicii, 16 H. 7. 6. Outlawry without an Original Writ, is not void, but voidable, 2 R. 2. and the reason thereof is given, 11 H. 7. in Collins' Case, but they are judges of the cause, although that their proceed be not according to Law. But the Sheriff, or any other stranger, shall not take advantage thereof, See 8 E. 4. 21 E. 4. and he cited to this purpose, 13 E. 3. Bar 253. The jailer shall not take advantage of undue proceed of the Auditors against an Accountant; and he insisted much upon the Usage and Precedents, and customs of Courts which are Laws in such cases. And although that by strict and precise rule of Law, a Capias doth not lie naturally nor properly upon a Recognizance, where the suit gins by Scire facias, yet because the usual practice, and common experience hath allowed of it, and admitted thereof from time to time: It is safer to suffer a mischief to one, than an inconvenience to many. And although the Proverb, Exempla illustrant, non docent aut probant, may hold place in some arts and Sciences, yet in our Law, Examples are good arguments, 11 E. 4. 3. In the King's Bench, a man in custodia Marischalli, shall be put to answer a Bill, but in the Common-Bench, a man who is in the custody of the Guardian of the Fleet, shall not be put to answer to a Bill, and that is by reason of the several usages and customs in the said several Courts; so as custom and usage makes a Law in such case. 39 H. 6. 30. in a Writ of Mesne, The judges were clear of opinion, That the Plaintiff ought not only to show the Tenure betwixt him and the Tenant Peravail, but also betwixt the Mesne and the Lord Paramount; yet when they had conferred with the Prothonotaries, and saw the Precedents of former times in such cases, They would not change the former courses, notwithstanding that their opinions were to the contrary: So 2 H. 7. 8. The Venire facias is, 12 liberos & legales homines, and the Sheriff returned 24, and holden good, by reason of the usual course of the Court in such cases; and yet in our Law, the number of persons is not material, which see in the Earl of Leicester's Case, 15 H. 8. but custom dispenseth with the same. Atkinson argued the contrary; At the Common Law for Execution in Debt within the year, a Levari facias, and a Fieri facias lay; after the year the party was put to a new Original; and there was not Capias at the Common Law, but in cases of contempt, force, or other notable misdemeanour, until the Statute of 25 E. 3. cap. 17. which gave it in Debt, Detinue, etc. And the Statute of West. 2. cap. 18. gave Fieri Facias and Elegit, but no Capias was given upon a Recognizance by any Statute, and he relied much upon the Book of 48 E. 3. before cited, the rule of which Book is, That in a Scire facias upon an Original in which a Capias lieth, the Scire facias shall follow the nature of the Original upon which it is founded: but where a Capias ad respondendum doth not lie, there not a Capias ad satisfaciendum, 34 H. 6. 451. In Debt against Executors, they appear and plead fully administered, and it is found against them, and judgement is given for the Plaintiff, who after the year sueth a Scire facias against the Executors, and Execution awarded by default, and thereupon a Capias and Exigent: And that matter being showed to the Court, a Supersedeas was granted, because the Capias improvide & erronice emanavit: for no Capias lieth against Executors where they plead, etc. although it be found against them, Ergo, neither a Scire facias grounded thereupon. And although the Stat. of 25 E. 3. gives a Capias in Debt, yet if Debt be recovered in a Justicies, a Capias doth not lie by the Equity of the said Statute: and he relied very strongly upon Puttenham's Case, 13 Eliz. cited before. And as to that which hath been said, That notwithstanding, that the Capias was against the Law, and so his imprisonment by colour thereof wrongfully, yet, de facto, he was in Prison, and the Sheriff hath taken him, and he shall excuse himself in a false imprisonment brought; yet I say, That this erroneous Process appearing to you, you will not again err, by allowing these erroneous proceed, but rather reform them: For the Sheriff himself, who is a stranger to the Record, cannot have Error to reverse these proceed, and so without remedy, unless the Court doth relieve him therein. And he said farther, That this Capias, Posito quod legitime emanavit, cannot fasten or work upon Francis Woodhouse, being imprisoned, and convict of Felony; for being imprisoned, and restrained of his liberty, how can he (his restraint continuing) be de novo restrained before that he be enlarged and restored to his liverty? Nam omnis privatio praesupponit habitum; and Ergo, imprisonment, liberty precedent. And so he concluded, That Francis Woodhouse, Neque de facto, nor de jure, was in prison: and that no Capias lieth in the Case, especially after the year, as here it was, and the party being convict and in prison, cannot be taken, etc. Manwood, If within the year a Levari facias, or a Fieri facias be sued forth and be returned, not served, or that Vicecomes non misit Breve, and so the year passeth in the default of the Sheriff; yet the Plaintiff shall not be put to a Scire facias. At another day it was argued by Tanfield for the Defendant, That upon this Scire facias no Capias lieth, and then no lawful Execution, and then no escape. Where there is no Capias in the Original, there is no Capias in the Execution, but here in our Case, there is not any Original, because it is a Scire facias upon a Recovery, Ergo, no Capias can be where there is not any Original. As to that which hath been said, That the ancient Precedents and course in Cancel. is against us; be it so; yet the course in the King's Bench and Common Pleas is with us, That a Capias doth not lie in such case of Scire facias. And the Chancery as to the Common Law ought not to vary from these Courts, for one and the same Common Law ought to be in all the said Courts, of things of the Common Law, and the Precedents alleged of the other side are silent, and sleeping proceed and precedents, Slips of Clarks, which were never drawn into question; the ancientest of which was hatched but in the later part of the Reign of King H. 8. And if the Common Law doth not warrant such Executions, Truly the precedents cannot make such imprisonments lawful without Act of Parliament. It hath been said, that Executions ought to be favoured, that is true, but also Liberty, to which the Law hath special respect: See the Statute of Magna Charta, Nullus liber homo capiatur, vel imprisonetur, nisi per legale judicium parium suorum, vel per legem terrae; and this is not Lex terrae, but usage only: and Malus usus est abolendus, 26 Eliz. Error was brought upon a judgement given in Curia de Woodstock, which is a Court of Record, and Error assigned, for that they had awarded Execution secundum consuetudinem Villae, against one who had bailed the Defendant without a Scire facias first sued forth against him, i. the bailee, and it was adjudged Error, and the custom could not maintain it, for the Bailee might have a release or other matter of discharge to plead: And he cited the Case of 13 and 14 Eliz. Dyer 306. That upon a Scire facias out of a Recognizance in Chancery, judgement was given for the Plaintiff, and the Warden of the Fleet was commanded to detain the Conusor in his custody, in Execution for the Plaintiff, and afterwards the Conusor escaped, the Plaintiff not satisfied, And it was holden no escape, for his body was not liable; in case of a Recognizance, to the Execution: and see also the book of Entries, 500 there is a Rule put, If the Recognizee will have execution within the year, he may have a Fieri facias, or Elegit, but not a Capias ad satisfaciendum. And he conceived; that this Process is not only erroneous; but also utterly void: As a Capias in a Formedon, antea 77. contrary where in Debt a Capias is awarded after the year where it ought to be Scire facias, the same is but erroneous; for such Process lieth upon such judgement, if he had not surceased his time. Another matter he moved, because this issue is not well tried, for it was tried by Nisi prius out of the Exchequer, and the Statute of West. 2. cap. 30. Mar. 14 E. 3. cap. 1. do not give Nisi prius in Causes out of the Exchequer but only out of both Benches; but Causes out of the Exchequer are tried by Commission; and here their Commission was insufficient; for it was directed, Chr. Wray and Williel. Periam, without saying, Et eorum alteri; so as it was joint, and not several, and Wray at the time of the trial, was as the Parliament at London, and so the cause was tried before Periam only, and therefore coram non Judice. At another day, The Case was argued by the Barons of the Exchequer. And Clark Baron, conceived that the Plaintiff ought to recover, and he said, That upon the escape, the Common Law gave an Action upon the Case against the Sheriff; and the reason why the Sheriff shall be charged, is, that one cannot be in Execution but once; and than if the Sheriff should not be charged, the party Plaintiff should by negligence of the Sheriff lose his Suit, and also his Debt: And admit that a Capias doth not lie in the Case, yet the Execution by force thereof is not void, but voidable only; and Error may be assigned as well in the Execution, as in the judgement; which see 17 Ass. 24. where the Recognizor in a Statute Merchant aliened the Land, and afterwards the Conusee sued forth Execution, so as the Land was extended, supposing the payment, i. Solvend. 14 E. 3. whereas in truth it was 16 E. 3. and the Feoffee brought a Writ of Error thereupon, and it was allowed; but the Sheriff shall not take advantage of the same: And truly the common course is, That a Capias lieth upon a Recognizance: and 7 H. 4. 101. upon a Recognizance acknowledged for the Peace, a Capias lieth for the King: and a Recognizance is but an Obligation of Record; and wherefore should not a Capias lie thereupon, as well as upon an Action brought upon an Obligation? The Statute of West. 2. cap. 45. Si recens sit Cognitio statim habeat Querens Breve de Executione illius Recognitionis: and the Statute doth not speak in certain what manner of Writ, or what manner of Execution, therefore we ought to resort to the Common Law for it, as that is a Capias. Gent, Baron argued and agreed in every point with Baron Clark. Manwood, chief Baron, argued, That the Plaintiff should recover; and he put the Case of Recognizance: The Plaintiff sueth two Scire facias's, upon which two Nichel's are returned; and afterwards a Levari facias, and upon that also Nihil is returned, and then issueth a Capias ad satisfaciendum for to take the said Francis Woodhouse, who then was in Prison for Felony, upon which Capias the Sheriff did arrest him, and he being afterwards convicted of Felony, escaped; upon this matter Debt is brought against the Sheriff. A Recognizance taken in the Chancery is a thing upon Record in a Court of Record, an Obligation of Record, and a Debt upon Record. It hath been objected, where no Capias lieth in the Process upon the Original, there no Capias lieth upon the Execution: but it is good to examine the Reason thereof; for Lex plus laudatur quando ratione probatur: The Capias upon a Recognizance is not by 25 E. 3. but by the common Law: for here is a Debt upon Record, wherefore shall not this body be subject to it, as well as in the case of a Debt upon a bare Obligation? I do admit the Rule, That where there is no Capias ad respondendum, there is no Capias ad satisfaciendum, but that aught to be intended in cases where there is an Original, and Mesn Process before judgement; but here is no Original, nor Mesn Process before judgement, ergo, our Case is not within the same Rule: But I will put a good Rule; It is Debt upon Record, ergo a Capias lieth: In the King's Bench, If the Defendant comes in by Latitat, if the cause whereof the Action is brought be of importance, he is to put in special Bail; and those who bail him shall be bounden in a Recognizance, etc. The Defendant is condemned in the Action: Now if the Defendant cannot be found, so as Execution may be sued forth against him, than a Scire facias shall issue forth against the Sureties which bailed him, and upon that a Capias, and that is very frequent therein use: So also is the course of the Court of Common Pleas; ergo it shall be so in the Chancery in case of a Recognizance. If one be taken in Execution upon a Statute Staple, and sueth an Audita Querela upon a Release, or other matter, and be bound with Sureties in the double value, etc. to the King, and to the party: If he be condemned in the Audita Querela, etc. and cannot be found, a Scire facias shall issue forth against the Sureties, and thereupon a Capias. And this question, If the Capias in this case lieth, or not? is to be decided either by Audita Querela in the Chancery, or by Error in the King's Bench: for the said Courts have authority to affirm the proceed, or to disaffirm them. And here the Question was, If Woodhouse were imprisoned or no? and not, if the Capias erronice emanavit or not? And he took a difference where Process is awarded out of a Court which hath not authority of the Principal cause; there it is coram non judice, and the Process is void; and if the Sheriff taketh the party by force of such Process, it is merely void, and he a Trespassor; but contrary if the Court hath authority of the principal cause, there if the Process be misconceived, it is only erroneous. 10 Co. 76. An unskilful man in Chancery makes an Appeal of Murder, retornable in the Common Pleas; and there an unskilful Clerk makes a Capias upon it, the same is coram non-judice, and not all together void: But if in a Writ of Entry, in the nature of an Assize, the Demandant hath judgement to recover Debt and Damages, and thereupon issueth a Capias, the same is not void, for it is but a misawarding of the Process, & provide emanavit. If out of the Common Pleas immediately a Writ issueth to the Sheriff of Chester, which is a County Palatine, where the King's Writ doth not run, the same is void, and false imprisonment lieth upon such a taking. A Formedon brought in the King's Bench, and upon that a Capias, is void, & coram non judice; and the Sheriff is bound to take notice of the Law in such cases, that those of the King's Bench have not authority to hold plea in real Actions. As to that, That Woodhouse was convict of Felony, the same shall not avoid the Execution; but I grant, that the King shall be satisfied before the subject, etc. And he relied much upon the said Case cited before, 13 E. 3. Bar. 253. as to the matter of the Capias: 19 H. 9 In Escape the Defendant pleaded a Release of him who recovered to the Prisoner being in Execution, and it was holden no Plea. And in the principal Case judgement was given for the Plaintiff. CXIII. Bridget Clark 's Case. Antea 30, 31. Mich. 29 Eliz. In the Exchequer. THE Case was, Clark was indebted to Archdel by Obligation, and afterwards delivered to Andrews certain Hogsheads of Wine to satisfy the said Archdel the said Debt: and afterwards the Obligation of Clark is assigned to the Queen for the Debt of Archdel: And if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the Assignment? was the Question. Egerton, Solicitor, The property is not altered, for the Bailor might have an Action of Account against Andrews before that he hath delivered the same over according to the Bailment: but if he hath delivered them over, the same is a good bar in an Account: But if one be accountable to me upon a Bailment, and afterwards I do require him to deliver the Goods over to A. the same is not in bar of Account, but is good in discharge of account before Auditors; for the same is matter after the Bailment, not upon the Bailment. If Goods be bailed to bail over upon a consideration precedent of his part to whom they ought to be bailed, the Bailor cannot countermand it; otherwise it is, where it is voluntary and without consideration; but where it is in consideration of a Debt not countermandable, contrary, if it be to satisfy the Debt of another. Manwood, Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King, but only where the Debt of the King is doubtful, and that was the ancient course; but now at this day multi videntur & habentur divites, qui tamen non sunt; and therefore omnis Ratio tentanda est, for the Recovery of the King's Debts. But as to the Case before us; The Wife is Executrix to her Husband, who was indebted to Archdel, and she delivers the Goods to Andrews to satisfy Archdel, and all that is before the Assignment: And I am of Opinion, That the property of the said Goods is altered; for, as the case is, Andrews was Surety for Clark, and hath a Counterbond of Clerk to save him harmless: If I borrow 100 l. and deliver unto the Lender Plate for the security of it, the property general of it is in me, yet the Bailee hath a special interest in it, until he be paid. If Goods be delivered to A. to pay unto B. A. may sell them. An Executor hath Goods of the Testators, and he with his own moneys payeth the Debts of the Testator, he shall retain the Goods, and the property is altered. And here in our case, Andrews may by virtue of this Bailment sell the Goods, and with the moneys arising thereof pay the said Archdel. And afterwards judgement was given accordingly, that the property of the Goods by the delivery over by Andrews was altered. CXIV. Foskew 's Case. Mich. 29 Eliz. In the Exchequer. FRancis Foskew, seized of the Manor of Foskew in his Demesn as of fee in consideration of a Marriage to be had with Francis his Son with M. Daughter of Sir Edw. Huddleston, 9 Feb. 25. Feb. covenanted to levy a Fine of the Manor aforesaid; and that the said Fine should be to the use of himself and his Wife for their lives, and after their deaths to the use of the said Erancis their Son, and M. and the Heirs of their bodies begotten, with remainders over: The Fine was levied accordingly: afterwards, 19 Octob. 27 Eliz. Francis the Father acknowledged a Recognizance to the Queen, and died, his Wife died; and now this Manor is extended for the Debt to the Queen by force of the Statute of 33 H. 8. And now Coke came into Court, and prayed that the said Manor might be discharged of the Debt to the Queen, because it is not chargeable by the said Statute; the words of whicih Statute are, All Manors, Lands, Tenements, etc. which hereafter shall descend, remain, or revert in Fee-simple, tail general or special, by, from, or after the death of any his or their Ancestor or Ancestors as Heir, or by Gift of his Ancestor whose Heir he is; which said Ancestor or Ancestors was, is, or shall be indebted to the King, or any other person or persons to his use, by Judgement, Recognizance, Obligation, etc. In every such case, the said Manors, etc. shall be charged, etc. This Statute was made for the benefit of the King in two points: 1. To make Lands entailed liable to the King against the issue tail for the King's Debts in the cases aforesaid, where they were not liable. 2. To make Bonds taken by the Officers of the King to the use of the King, as also of Statutes. We cannot deny but that we have Lands of the Conusor, and of the Gift of the Conusor our Ancestor, whose Heir we are, who was indebted to the Queen, and yet we are not within this Statute: Was or shall be indebted, shall not be intended after the Gift made; for if he first convey his Land, and afterwards becomes indebted, the same is not within the Statute: and where a mischief is to be remedied by a Statute, the remedy in exposition of the Statute is to be applied according as the mischief doth require: [Shall be] is to be intended of future Debts after the Statute: and in our case, the Father was not Receivor, or other Officer to the Queen: And if this Statute should be so construed, the Father might take 10000 l. for the Marriage of his son, and assurance of Lands unto him; and than if he will acknowledge a Debt to the Queen, he should defeat the whole, which should be a very great mischief: The words are, [By Gift after the Debt acknowledged to the Queen.] And he cited the Case, 19 Eliz. Blow 191. betwixt Ludford and Gretton, upon the Statute of 18 H. 6. the words of which are, [That whatsoever Warrant hereafter to the Chancellor of England addressed, the day of the delivery of the same it be entered of Record in the Chancery; and that the Chancellor make Letters Patents upon the same Warrants, bearing date the day of the said delivery in the Chancery, and not before: and all Letters Patents made to the contrary shall be void.] And the Case was, That a Warrant was directed to the Chancellor, for the making of Letters Patents, and delivered to him before the making of them, but the day of the delivery was not entered of Record, etc. And it was holden, that notwithstanding that, the Letters Patents were good; for the mischief at the Common Law intended to be reform by that Act, was not the post-dating of the Letters Patents, but the ante-dating, and therefore that aught to be principally taken into consideration: which mischief being understood, the words of the said Statute are to be applied to it; ipsae etenim Leges cupiunt, ut jure regantur; i with an Equity according to the Mischief, and not always according to the precise words: and in that case it is sufficient if the Letters Patents bear date after, and not before the delivery of the Warrant, and that was the matter intended to be reform. Also, as our Case here is, we are not within this Statute; for the words are, Of the Gift of his Ancestor, but here the Son hath not the Lands of the Gift of his Ancestor, but rather by the Statute of Uses, and so he is in the Post and not in the Per, by his Ancestor; for here the Fine was levied to divers persons unto the Uses aforesaid: and here the Gift was not a mere gratuity to his Son, but in consideration that he should marry the Daughter of Sir Edw. Huddleston; and also the Father was the King's Debtor after the Gift, and not before. Popham, Attorney-General, to the contrary: The letter of the Statute is with us, for he comes in of the Gift of his Ancestor, who was indebted to the Queen: and although that the Gift was by way of use, yet the precedents in the Common-Pleas and other Courts are, That he may declare, of the Feoffment of such a one, although it was by way of use: and he said, If A. be bound to enfeoff B. of such Lands, if he maketh a Feoffment to the use of B. and his Heirs, he hath well enough performed the Condition: and if the Case should not be within the Statute, then should that branch of the Statute be idle, and to no purpose: For if the Ancestor be seized, and becometh indebted to the Queen, and after makes a conveyance ut supra, the same is provided for by the first branch of the Statute: For the Land is liable to the Recognizance or Obligation made to the King, and that they shall be as effectual as a Statute Staple; and reason requires, that the son, who comes in by mere gratuity of his Ancestor, should be charged: And it was a common practice before the making of that Statute, That the King's Officers would convey their Lands to their children, and then become the King's Debtors; for the remedy of which mischief the Statute was made, and the Statute of 27 Eliz. doth not respect the Heir, because he is Heir, but as a purchasor only, and that upon good consideration: Coke, If any fraud can be found in our Case, then without doubt we should be within the Statute, but being upon good consideration, it is out of the Statute; nor was there any purpose in the father when he made the said Conveyance, to become the King's Debtor, or Officer to him, for if there were, than he is within the Statute, also the Gift had been a mere gratuity, etc. And afterwards, at another day, the Case was moved by Coke, and he said, That here is not any Gift, because it was in consideration of Marriage, and then no gift, for it is an old Proverb, What is freer than gift? Egerton, The father giveth to his son and heir, the same is within the Statute, and yet here is consideration, (scil.) of blood; Coke contrary, Where the father giveth to his younger son, or to his daughter, which is not his heir; and of that opinion was Manwood, chief Baron: And afterwards, (as Coke reported) the son and his Lands were discharged. CXV. Amner and Luddington 's Case. Mich. 26 Eliz. In the King's-Bench. Error. 3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington, Mich. 25 and 26 Eliz. Rot. 495. The Case was, That one Weldon was seized, and leased unto Pierpoint for ninety nine years, who devised the same by his Will in this manner; I bequeath to my Wife the Lease of my House during her life, and after her death I will that it go amongst my Children unpreferred. Pierpoint died, his Wife entered, and was possessed virtute legationis predict. and took Husband one Fulshurst, against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias, and upon that a Venditioni Exponas, upon which the Sheriff sold the said term so devised to one Reynolds: Fulshurst died, his Executor brought Error to reverse the judgement given against the Testator at the Suit of Beswick; the Wife did re-enter, and sold the Land, and died. Alice, an unpreferred Daughter of Pierpoint, did enter, and upon that matter found by special Verdict in the Common-Pleas, the entry of Alice was adjudged lawful: upon which judgement Error was brought in the King's-Bench. And it was argued upon the words of the Devise, because here the House is not devised, but the Lease itself, (scil.) all his interest in the thing devised: And it is not like unto the Case betwixt Welchden and Elkington, 20 Eliz. Blow 519. where the Case was, That Davis being Lessee for years, devised that his Wife should have and occupy the Land demised for so many years as she should live; nor unto the Case of Paramour and Yardley, 21 Eliz. Blow 539. for there the Less devised, That his Wife shall have the occupation and profits of the Lands until the full age of his Son: For in these two Cases the Land itself is quodam modo devised, but in our Case all the Estate is devised, i. the Lease itself. And also in those two Cases a certain person is assigned and named in the Will, who should take the residue of the term which should be expired after the death of the Wife: But in the Case at Bar, there is not any person certain appointed, etc. but the Devise, as to that, is conceived in general words, to Children unpreferred; therefore neither any possibility, nor Remainder in any person certain, therefore all the term is wholly in the Wife, and then she might well dispose the whole. But all the Court was to the Contrary, and that in this case the possibility should rise well enough to the death of the Wife, to that Daughter unpreferred. Another matter was moved, If the said term, being sold in the possession of the Wife of the Devisor by force of the Execution aforesaid; If now, the judgement being reversed, the sale of the term be also avoided? for now the party is to be restored to all that which he had lost. And it was argued by Coke, That notwithstanding the reversal of the judgement, the sale did stand good; for the judgement for the Plaintiff in a Writ of Error is, That he shall be restored to all that which he hath lost Ratione judicii predict. and the judgement was, That the Plaintiff should recover 140 l. and therefore by the judgement in the Writ of Error he shall be restored to so much, but the mean act, (scil.) the sale of the Lease, shall stand, and shall not be defeated or avoided. As 7 H. 6. 42. A Statute Staple is bailed in Ouster le main, the Conusee brings Detinue against the Bailee, and hath judgement, and recovers the Statute, and upon that hath Execution: The Baylee brings a Writ of Error, and reverseth the judgement given in the Detinue, yet the Execution shall stand, and Audita Querela doth not lie for the Conusor: And see 13 E. 3. t. Bar. 253. Accountant found in Arrearages, committed to the next Gaol, escapes, and reverseth the judgement given against him in account, by an Ex parte talis, yet the Action upon the escape lieth; and the Court, as to that point, all agreed; but that point did not fall in judgement; for by the sale nothing shall pass, but the interest in praesenti, which was in the Wife of the Devisor; but the possibility to the children unpreferred, was not touched thereby; And afterwards the judgement was affirmed. CXVI. Edwards and Halinder 's Case. Mich. 36 Eliz. In the Exchequer. RIce Edward's brought an Action upon the Case against Halinder, See the Case reported in Popham's Reports fol. 46. very short, but not with the Arguments. and declared, That whereas one Banister had demised unto the Plaintiff a Cellar, to have from week to week, Quandin ambabus partibus placuerit; And also whereas the said Banister had leased to the Defendant a Shop, directly over the said Cellar, there the Defendant had laid so great a burden upon the floor of the said Shop, that there by the said floor fell down, and broke certain vessels of the Plaintiff's full of Wine, by reason whereof the Plaintiff lost his Wine, to the value of, etc. to his damages, etc. The Defendant said, That before the charging of the floor, ut supra, The said floor had sustained greater weight; and farther, that the said Banister let unto him the said Shop for to lay there the weight of 30 Tun, and he had laid there but the weight of 12 Tun; and also that the Walls of the said Cellar are so weak, that the floor of the said Shop fell by reason thereof; upon which there was a Demurrer in Law. It was argued by Godfrey for the Plaintiff; Where injury or wrong is done unto any, the Law gives remedy to the party grieved; and although that the Shop was let unto him to lay wares there, which he hath done, and that it was not his intent to surcharge the said Warehouse, although the event be contrary, yet forasmuch as by the laying of wares there, a wrong and damage follow to the Plaintiff, the Defendant shall be punished; for the rule is Sic utere tuo, ut alienum non laedas: If I have a house, and another buildeth so high over me, that rain-water descends and falls from his house upon my house, an Action upon the Case lieth, See F. N. B. 184. So if by his building he stops my light, as it was lately adjudged in the King's-Bench, in the Case betwixt Bland and Mosely: See 6 E. 4. 7. & 8. Damages recovered for a wrong done against the will of the party: and see other Cases upon this Learning, 13 H. 4. t. Action upon the Case 48. The Plaintiff had sold certain trusses of Hay to the Defendant, within such a Meadow, to be carried away from the said Meadow within a certain time; but the Defendant let the Hay lie there without carrying the same away, so it putrified the Meadow, by reason whereof the Plaintiff lost the profit of his Meadow for a great time; and thereupon brought an Action of the Case against the Defendant, and the Action was adjudged maintainable: See 22 E. 4. 8. where the owners of the Plough in turning of the Plough, according to the custom in the common fields upon the Land of another; one of the Plough , against the will of the driver, takes a mouthful of Grass, the same is justifiable, but if the driver of the suffereth the same to continue, an Action will lie against him: So 22 E. 4. 49. Where I am bound to enclose my Land against another, and in default of enclosure, the of the other escaped into my Land and Close, I shall not punish him; but if he after notice, doth suffer them to continue there, he shall be punished, although it be through my default: Also it is alleged in our Declaration, That the Defendant intending to hurt and spoil the Plaintiff's Wines, did lay such a weight, etc. And the Defendant answers thereunto. That the floor fell in default of repairing of the walls of the Cellar, or for the ruinousness of them, where he ought to have pleaded farther, Absque hoc, that the Shop was surcharged with the intent to hurt the Plaintiff's Wines; In an Action upon the Case, upon a Trover, The Defendant pleads, that the goods whereof, etc. were pawned unto him for the security of certain money not yet paid, The same is no plea without saying farther, Absque hoc, that he did convert, etc. See 43 E. 3. 33. In an Action brought against a Smith, for his negligence in curing of a Horse which he took upon him to cure; the Defendant was driven to traverse, Absque hoc, that the Horse perished in default of his care: Dalton contrary, Where in doing of a lawful Act, by a mishap a damage cometh to another, against the will of the doer, no punishment shall follow: See the Case cited by the other side in 6 E 4. 7. & 8. If he might have done more than he had done to have prevented the mischief, he should be punished; but if he could not have done more than he hath done, or otherwise than he hath done to prevent it, he is dispunishable, and he may, Uti jure suo, although it be to the prejudice of another: See 12 H. 8. 2. & 3. Harcourt's Case; If I cannot otherwise let the water out of my Land, I may justify the letting of it in your Land which is adjoining, although that your Land be drowned thereby: Sometimes ignorance of the party shall excuse the offence: As if my Dog worry your Sheep, if I do not know of such ill quality in him, I shall not be punished for the same. And it doth not appear that the Defendant had notice of the ruinousness of the walls, although now it appeareth that they were ruinous, and for that cause the floorfell; for the Defendant said, That the walls were ruinous, in occultis & absconditis partibus ipsorum; And here needs not any Traverse: For it is confessed, That the floor of the Shop was surcharged, but the same is avoided and excused, because that the walls were ruinous, in occultis & absconditis ipsorum partibus; And forasmuch as our Landlord (who is also the Landlord of the Plaintiff,) hath let to us the Shop, to lay there the weight of 30 Tun, therefore the Defendant hath good right, as to such weight against the Lessor of the Plaintiff, and all others, claiming under him. And here the Plaintiff hath declared of a Lease from week to week, Quamdiu ambabus partibus placuerit, and hath not averred the continuance of his Lease, etc. Godfrey, A Lease is made from year to year, ut supra, etc. The Lessor brings Debt for the second year, he need not to aver the continuance of the Lease; for when the second year doth begin, the Lessor cannot put him out that year; But we, upon the matter, have averred the continuance, for we have said, Et sic possessionatus existens, etc. Manwood, The Declaration is, That the Defendant, Nequitur & malitiose intendens, etc. tantum ponderis, was laid upon the floor, Ita quod vi ponderis dirupta fuit contabulatio: And the Plea of the Defendant is, Quod muri in partibus occultis & absconditis ruinosi fuerunt, etc. & ideo corruerunt. So as the Plaintiff speaks of the floor, and the Defendant of the walls, and so the Defendant doth not answer the Plaintiff; for the Shopman ought not to go into the Cellar, nor the Cellar-man into the walls. But Dalton said, That the Plea was, Quod diruptio & fractio contabulationis fuit ex eo quod muri ruinosi fuerunt in partibus occultis & absconditis. At another day, it was argued by Fleming for the Plaintiff, A voluntary and unlawful act is laid to the charge of the Defendant, who pleads special matter to excuse himself, but doth not answer the point of the Action, but only that the fall was sudden, Et quia muri fuerunt ruinosi in partibus occultis, etc. whereas we have declared, that the weight was the cause thereof: 3 H. 6. Double Plea 31. In an Action upon the Case, for negligent keeping of fire, the house of the Plaintiff was burnt, he ought to take a Traverse, without that, that it was burnt by the ill keeping of the fire of the Defendant; and he needs not to aver the continuance of the Tenancy at will: 38 H. 6. 27. A Lessee for life assigns his Estate to B. who Leases at will to C. B. is disseised by D. and C. ousted, C. reenters, and brings Trespass, he must aver the Life of A. but not of B. nor the continuance of the will. Atkinson contrary; I conceive there needs no Traverse, for the matter of the Declaration is expressly confessed, and avoided, 5 H. 7. 12, 13. where one makes Title to common, or Rend by prescription, if the other pleaded unity of possession, he needs not traverse; so where he claims B. for his Villain, etc. B. saith, that he is a Bastard, there needs no Traverse. We have confessed in pleading, Quod gravitate ponderis, the floor fell down; but we say farther, that the cause was, because the walls were ruinous, etc. and here is matter in Law; Who ought to repair them: The Lease was made unto the Defendant, 29 Julii, and the floor fell 30 Julii, the day following: and if by Law the Defendant ought to repair them, it was impossible for him to do it, and that shall excuse him: If one hath a Shop, and another a Cellar under it, and the Shop minatur rainam, there is a Writ in the Register, De reparatione facienda. 153, etc. And it lieth against him who ought to repair by prescription, or by the Law. And we who are the Lessee, are not bound to repair; for if the ground Timber be in decay, and so the house ruinous at the time of the Lease, it is a good Plea in an Action of Waste, if the house fell in such defect; for the Lessee is not bound to such reparation, (scil.) for great timber, which was rotten at the time of the Lease. But if after the Lease it becomes rotten for want of covering, it is otherwise, See 12 H. 8. 1. And here the Plaintiff hath remedy against his Lessor, for he is bound to the reparations by the Law, and not the Lessee; And as he may have the said Writ, De reparatione facienda, before the mischief, so he may now have after the mischief: and therefore no Law binds the Defendant to repair; Nor is there any custom pleaded to that purpose: and also for as much as the occasion of the Cause of action was the ruinousness of the walls, the Defendant shall not be charged with the same: And also he shall not be charged with a thing he could not prevent. Manwood, The Defendant hath pleaded, that the fall of the floor was, eo quod, the walls were ruinous in partibus occultis, which was a secret thing, and unknown unto the Defendant, upon which the Plaintiff hath demurred, and so confessed the plea of the Defendant to be true; and that he was ignorant of the feebleness of the walls, and therefore he needs not any Traverse. And here the Defendant hath pleaded, That the Shop was demised to him for greater carriage. Gent, Baron, was of opinion, That the Defendant had not fully answered to the Declaration; for he is charged with the laying of so much weight upon the floor there, so as, vi ponderis, it fell down; To which the Defendant hath said, That the walls were ruinous, in occultis partibus; and doth not answer to the surcharging, (scil.) Absque hoc, that he did surcharge it: Clark, Baron, It is a general Rule, That every material thing alleged in the pleading, aught to be traversed, confessed and avoided, which the Defendant hath not done here but he would excuse himself through the default of another, and answer nothing to that with which he himself is charged; And afterwards judgement was given in the Court of Exchequer for the Plaintiff. Whereupon, afterwards, the Defendant brought a Writ of Error in the Exchequer Chamber, where the Case was argued again; But there the judgement given in the Court of Exchequer was affirmed. See this Case reported short, in Popham's Reports lately published. CXVII. Linacre and Rhode 's Case. Trin. 31 Eliz. In the Common Pleas. Co. Rep. Blomfield's Case. 3 Len. 230. THE Case was, That Linacre was bound in a Statute; and his body taken in Execution, and the Sheriff voluntarily set him at large, and afterwards the Conusee sued Execution of the Lands of the Conusor; who thereupon brought an Audita Querela. It was moved by Yeluerton, Serjeant, That by that voluntary discharge of him by the Sheriff, the whole Execution was discharged, for the Execution is entire: See 15 E. 4. 5. Where the Conusee in a Statute Merchant, hath the body and lands of the Conusor in Execution, and afterwards the Conusee surrendreth his Estate which he hath by Extent; now the Execution of his body is discharged; and the Conusor shall have a Scire facias, or Audita Querela to discharge his body: So if three Conusors' be in Execution, and the Conusee doth discharge one of them, the same is a discharge of them all, and in the principal Case, the body is the principal, and therefore the discharge of the principal part of the Execution is the discharge of the whole. Hammon, Where the Conusee himself dischargeth the Execution in part, it is good for the whole, but where discharged by the Sheriff, Nihil operatur: Anderson, If the Conusor dieth in Execution, yet the Conusee shall have Execution against his Heir of his land, for the having of the body in Execution, is not any satisfaction to the party; for his body is but a pledge until the money be paid; and there is no reason, that the act of the Sheriff should discharge the Execution. Windham, to the same intent; And if the Conusee sueth Execution, and hath the body of the Conusor in Execution this day, he may the next day sue Execution of the lands, and the next day after, of the goods; and if the Conusee doth discharge the body, the whole Execution is discharged, and it is true, That if A. recovereth against B. in an Action of Debt, and B. is taken by a Capias ad satisfaciendum, and afterwards the Sheriff permitteth B. voluntarily, to escape, here B. is discharged, although it be not the act of the party; for there the Plaintiff had a full Execution, which is not here; for in Case of Execution upon a Statute-Merchant, the Execution by the body is not the full Execution, and therefore although the Sheriff hath discharged the body, yet the Conusee may have Execution of the goods and lands, but not of the body; and afterwards judgement was given against the Plaintiff; That the Audita Querela did not lie, and that Execution might be sued of the goods and lands but not of the body. CXVIII. Webbe and Mainard 's Case. Trin. 32 Eliz. In the Common Pleas. IN Ejectione firmae, The Case was, Walter Goldsmith, seized of certain lands, made a Feoffment to the use of himself for life, and after to the use of John his eldest son in Fee; Proviso, That after his death, his said son shall pay unto his younger son, William, 30 l. by 3 l. per ann. at the Feast of St. Michael until the entire sum be paid, and if he fail of payment, then to the use of the said William and his heirs; Will. Goldsmith the Feoffor dieth, the money is not paid, but afterwards the said younger son makes an Acquittance, and thereby acknowledgeth the Receipt of the said money, according to the Proviso, John dieth; Now, if the younger son may enter? And first, if the younger son be concluded by that Acquittance, to say that the 30 l. was not paid? And if he be not concluded, Then if because that the words are but words of limitation, the younger brother hath Title of Entry. and then, if this Entry be bound by the descent from John to his Heir? or if John by continuance of the possession, after the breach of the Proviso, be a Dissesor, or not? were Questions propounded to the Court, which the Court took time to consider of, yet it was then said, That the use was settled in William, and the possession executed unto it, but not such a possession upon which an Assize or Trespass lieth. CXIX. Willis and Jermine 's Case. Hill. 31 Eliz. In the King's Bench. Rot. 647. IN Ejectione firmae, It was found by special Verdict, 1 Cro. 167. Roll Tit. Estate 830. That the Dean and Chapter of Exeter Leased the Land, where, etc. to Jermine, rendering Rend to be paid at their Chapterhouse at Exeter, and for default of payment, that such Lease shall be void and cease; and that the said Jermine conveyed his interest to the Defendant, and afterward the Rent was demanded at the Chapterhouse, but not paid; and afterwards, The Dean and Chapter, by the name of Dean and Chapter of St. Mary of Exeter, where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter,) make an Indenture of Lease for forty years, in their Chapterhouse to Willis, and thereunto put their seal in the Chapterhouse, and made a Letter of Attorney to another to enter, and to make Livery of the said Deed, which was done accordingly: it was moved by Harris, Serjeant, That this Lease made in manner, etc. is not good, for the Corporation is misnamed, i. of Exeter, for in Exeter; but the Court disallowed that Exception; for there is not any material variance, and so it was said, it hath been ruled. And he said, that for another cause the Lease is not good; for when the Dean and Chapter in their Chapterhouse make this Indenture of Lease, Davis Rep. 42. and set their Chapter-seal to it, It was their Deed presently, without other delivery: and then Jermine being in possession at the time of the putting of the seal to it; they were out of possession thereof, and so the new Lease void, because they were not in possession at the time of the making of it; for no delivery is necessary to the Deed of a Corporation; but the date of the sealing of it, makes it a perfect Deed, and then the delivery of the same by the Attorney is of no effect. Wyatt to the contrary, This Lease is good: For Jermine was but Tenant at sufferance at the time of this Lease; but if Jermine had been a Disseisor, than delivery in the Chapterhouse was void, and then the second delivery upon the land good. And Harris agrees, That if Jermine be but Tenant at sufferance, than the second Lease made of the land was good enough. But it was agreed by the whole Court, That the Lease is good enough for the manner, and there is not other form or means for a Corporation to make a Lease than this here: And it was moved; That the first Lease was not utterly ceased without entry, and then the new Lease being made before, entry is void; But Wray was clear of a contrary opinion; and said, That the Dean and Chapter might make such a Lease before entry; But Gawdy, justice, doubted of it, Vide 28 H. 8. 6. Dyer and Com. 2. and 3. Ph. and Ma. 132. Browning and Beston's Case. Harris The Attorney hath not pursued his Authority, for his Warrant is to enter into the Land in the name of the Corporation, and claim it to their use, and then to deliver the Lease made upon the land; but the jury have not found such matter, but have found only that he came by virtue of the said Letter of Attorney, and delivered the same upon the land, but do not find that he entered, and claimed the same to the use of the said Dean and Chapter, But the Court held the same good enough; for in a special Verdict, every particular circumstance need not to be found, and in pleading it ought to be; and because it is found, That the Attorney, by virtue of the said Warrant of Attorney, hath delivered the Deed upon the Land, he hath pursued his Warrant in all. Gawdy, Delivery of the Deed is as necessary in case of a Corporation; as it is in the case of other persons. CXX. Rymersly and Cooper 's Case. Trin. 31 Eliz. Rot. 768. In the King's Bench. 1 Cro. 168, 169. IN an Action upon the Case, for slanderous words, the Plaintiff declared, That where, by the custom of the City of London, it hath been used, If the Mayor, Recorder, or any Alderman, being a justice of Peace there, might take the Deposition of any person produced before them, or any of them to be deposed in perpetuum rei memoriam ex parte alicujus personae, which Depositions are there recorded, in perpetuam rei memoriam; and are good matter to be given in Evidence to any jury there to inform their consciences of the truth of the thing in Question, and declared farther, That he himself was produced before one Bond, as a Witness to testify his knowledge in quadam causa ibid. ex parte Edw. Stapleton, before whom he deposed, etc. The Defendant spoke these words in scandal of the Plaintiff, Rymersly was forsworn in the said oath before, etc. The Defendant pleaded, That the Plaintiff made not any such oath, and upon that the Plaintiff did demur in Law. George Crook prayed judgement for the Plaintiff, for the same is no plea; for the oath is but an Inducement, and therefore not traversable; for the ground of the Action is the speaking of the words; and admit there were not any such Oath taken by the Plaintiff, the offence of the Defendant was the greater, Nam peccavit in utroque, tam in juramento, quod nullum omnino fuit, quam in perjurio, quod sine juramento esse non potuit; for if one saith, A. Murdravit J. S. whereas there never was any such J. S. yet the Action lieth for the scandalous words: Also this Plea doth amount but to the general issue, See 4 E. 6. Action, Sur le Case 113. 34 H. 6. 28. And as to the words, they are Actionable; for (forsworn) amounts to purjured, being spoken upon on oath taken in a Court of Record, and so was it lately holden in the Case betwixt Brook and Doughty: Brook and Doughtie's Case. Godfrey, Contrary, The Declaration is not good, for the custom in London is not well laid, or pursued; and therefore, upon the matter, it is but an oath taken before a private man; for he hath declared, That in the City of London, it hath been used, etc. but doth not say, That the City of London is Antiqua Civitas, as he ought. See the Case of the Prior of Lantony, 12 E. 4. 8. and 22 H. 6. Prescription, 47. If a man allegeth a custom within a Town, he ought first prescribe, That the said Town is an ancient Town. Also it is not set forth in the Declaration: That Bond, at the time of the Deposition taken, was a justice of Peace in London, and then the custom is not well pursued. But afterwards, the Record was looked upon, and allowed to be good by the Court, and the Court conceived, that the Plea of the Defendant was good enough, as 13 E. 4. 8. In Debt against an Abbot, the Plaintiff counted upon a borrowing by the predecessor, etc. the Defendant pleaded, That he did not borrow, and it was holden a good Plea, and yet the Plaintiff in such Case might plead the general issue, See 26 H. 8. and 34 H. 6. Br. Action Sur le Case, 103. 3. Ma. Dyer. 121. The Lord Mounteagle's Case, 34 H. 6. 43. by Moil. In Trespass, Quare servientem suum verberavit, etc. It is a good Plea, to say, That he was not the servant of the Plaintiff; and if in the principal, the Defendant plead, Not guilty, he should thereby confess, that the Plaintiff was sworn. Wray, chief justice, The Plea of the Defendant is good: And it was moved by Egerton, Solicitor general, That the custom to take Oath, as is alleged, is not allowable, because it is not a reasonable custom, that such Depositions should be taken, in perpetuam rei memoriam, If there be not a suit depending in the Cause; and because that such custom not alledgable, it is not reasonable, and then the Plaintiff ought not to have judgement; and such also was the opinion of Wray and Gawdy, justices, But for the default in the Declaration, That it is not alleged, That London is antiqua Civitas, judgement was given against the Plaintiff. CXXI. Alexander and Dyer 's Case. Trin. 31 Eliz. Rot. 901. In the King's-Bench. IN Debt for Rent reserved upon a Lease for years, 1 Roll. 605. 1 Cro. 169. The Plaintiff declared, That he leased to the Defendant 37 Sept. certain Lands, to have and to hold from the Feast of St. Michael next ensuing, for a year, rendering 10 l. Rent, Virtute cujus, 29 Sept. the said Lessee entered, and enjoyed the said land, from the Feast of St. Michael, all the said year; and because the Rent was behind, etc. And upon Nihil debet pleaded, it was found for the Plaintiff. It was moved in Arrest of judgement, that upon the Plaintiffs own showing, here is no Rent behind, and then no cause of Action; for it appeareth in the Declaration, that the Lessee entered 29 Sept. which is before the Term gins; For the words of the Habendum are, From the Feast of St. Michael, therefore the Feast of St. Michael is no part of the Term, and then was the Defendant a Disseisor, and the day after, the Term began, which cannot alter his Estate, but that he continueth a Disseisor, and then he is not in by force of the said Lease, and so no Rent can be due: Williams, As the Declaration is here, the same is not any disseisin; for the Plaintiff set forth in his Declaration, That the Lessee, the Defendant hath occupied the Land demised, the whole year, and so hath not admitted any Disseisin, it being in his election to make it a Disseisin or not: Clench, justice, Be it a Disseisin or not, or be it that the Defendant entereth or not, he is to pay the Rent: Gawdy, The Lessee is a Disseisor, and continueth a Disseisor, and yet Debt lieth against him for the Rent, by reason of the privity of Contract: which see Rysden's Case, 24 H. 8. Dyer 5. And so in our Case, Quod fuit concessum per totam Curiam, and afterwards judgement was given for the Plaintiff. CXXII. Monings and Worley 's Case. Hill. 32 Eliz. In the King's-Bench. Rot. 561. Error. IN Debt upon an Obligation brought by Mary Worley, against Monings in the Common-Pleas. The Condition was, That if Mary Worley the Plaintiff in the said Action doth not departed out of the service of the Defendant without licence of the Defendant Monings; nor marry herself, but with his consent, Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made (of Monings) at his house at Waldersey, 100 l. That then, etc. And the Defendant in the said Action pleaded, That the said Mary the Plaintiff, in the said Action, 4 Maii, 30 Eliz. departed out of his service without licence, The Plaintiff Mary, by Replication said, That 6 Septemb. the same year she departed out of his service with licence, and that 4 Octob. after, she demanded the said 100 l. at Waldersey aforesaid, and he refused to pay it, Absque hoc, that she departed out of his service 4 Maii, 30 Eliz. without licence, and the Writ bare date, 18. of October, next after the demand; And it was found for the Plaintiff, and judgement given for her in the Common-Pleas; and now a Writ of Error is brought by Moning. Tanfield, The judgement ought to be reversed; for always the Replication in such cases, aught to contain sufficient Cause of Action, and sufficient breach of the Condition, or otherwise the Plaintiff shall not have judgement, although that the Issue be found for him: as 7 E. 4. 31. In trespass for taking of goods, of A. and B. A. pleads Not guilty, B. justifies, the Plaintiff makes Title to the goods by a gift, B. traverseth the gift, and it is found for him against the Plaintiff, A. is found guilty: Now, although A. be found guilty, yet the Plaintiff shall not have judgement against him; for it is found, that he hath not any Title to the goods. As in Debt upon a Bond against A. and B. A. pleads Non est factum; B. pleads the release of the Plaintiff, and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have judgement; for upon the Verdict, it appears, that he hath not cause of Action: And here in the Replication, there is not a sufficient breach showed of the Condition; for although that Mary hath not departed from the service of the said Defendant, yet the same is not material; but the Defendant had twenty eight days after the demand, to pay the 100 l. but the same is not so here, for the Plaintiff hath prevented the Defendant; for the demand is alleged to be 4. Oct. and the Writ bears date 18. Octob. the same year, and so the Defendant had not his time allowed him. Gawdy, The issue is taken upon the departure out of his service, so as the demand is not now material, and therefore the alleging of the same is surplusage, and shall not hurt: And the Defendant hath pleaded in Bar, the departure of the Plaintiff out of his service, upon which he relieth, and the demand set forth in the Replication, is not to be regarded, as to prejudice the Plaintiff: As 3 Ma. Dyer 115. Lessee for years' covenants that he will not cut any Trees, The Lessor assigns the breach of the Covenant in succidendo twenty Oaks, The Lessee pleads, that he did not cut the twenty Trees, nor any of them; The jury found, that the Defendant had cut down ten Trees, The Plaintiff upon that Verdict shall have judgement, for the rest is but surplusage; and more put in issue than there needs to be. Fenner, It is not any full Plea to say, That the Plaintiff did not departed out of the service of the Defendant 4 Maii, for if she departeth at any other time, she shall not recover, for which cause she ought to have pleaded, That she continued in his service until such a day, and then she departed with his licence, and the inducement to the traverse ought to be sufficient matter, otherwise it is not a full Plea, nor the Traverse is not good. And if it be surplusage, yet if it be not matter against herself, it makes the Plea naught, which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived, that the judgement was well given, for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence, or to stand upon the demand. And now, although he pleads the departure, yet the demand is not confessed. And afterwards the judgement given in the Court of Common-Pleas was affirmed. CXXIII. Bashpool 's Case. 27 Eliz. In the King's-Bench. THE Case was this, The Father seized of Lands, Styles Rep. 148. is bound in an Obligation, and deviseth his Lands to his Wife until his Son cometh to the age of twenty one years, the remainder to the Son in Fee, and dieth; and no other Lands descend or come to the Son from his Father. It was moved by Godfrey, That the Heir in that case at his Election might wave the Devise, and take by descent, or è contra: See 9 E. 4. 18. by Needham. But Gawdy and Shute, justices, 3 Len. 118. were of opinion, That the Son should be adjudged in by Descent: Clench contrary. CXXIV. Bennet and Shortwright 's Case. Trin. 30 Eliz. In the King's-Bench. THE Case was, 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tithes in kind, and now the Plaintiff prayed a Prohibition, and suggested, That they had used in the said Parish, time out of mind, etc. to take the tenth Sheaf in satisfaction of Tithe of Corn, etc. and in those years in which the Plaintiff had supposed the subtraction of his Tithes, he had severed the tenth Sheaf from the nine parts, and the Parson would not take them away: and that he had offered that matter by way of Plea in the Spiritual Court, but they there would not allow of it: And the Court was clear of opinion, That the suggestion was good; for if the Parishioner setteth out his Tithes, and the Parson will not take them, or if they be destroyed by by his Laches, he shall not have Tithes again: and therefore if the Ecclesiastical Court will not allow that Plea, it is reason that the party have a Prohibition, for after severance transit decima in Catalla: But it was said by the Court, That if the Parishioner doth set forth his Tithes, and takes them again, he may be sued for Tithes in the Spiritual Court, and the setting forth shall not excuse him. CXXV. Walter against Pery and Spring. Mich. 32 Eliz. In the King's-Bench. WAlter brought a Scire facias against Pery and Spring, Sureties for one Brook upon Bail in an Action of Debt: The Defendants pleaded the death of Brook before judgement given against him: And all the justices (except Wray) held, that the Plea was not good, for it is a surmise against the judgement; for judgement cannot be given against a dead man. Wray, The same is Error in fact, and of such Error the party may have advantage in this Court. Gawdy, The Surety cannot take advantage of Error, nor plead it, for he is a stranger to the Record. Wray, He may plead, that the Defendant is dead after the judgement, quod fuit concessum: but it was ruled, That the Defendants should be sworn that their Plea was true. CXXVI. Aldersley and Duparrie 's Case. Mich. 32 Eliz. In the King's-Bench. IN Debt upon an Obligation bearing date 4. Julii, 30 Eliz. The Defendant pleaded, that it was endorsed with condition to pay 50 li. before 15 Octob. 31 Eliz. and pleaded, that he had paid it before the 15. of Octob. aforesaid, scil. the ninth of June, 30. Eliz. which is three Weeks before the date of the Obligation, upon which the Action is brought: And they were at Issue, That the Defendant Non solvit before 15 Octob. etc. And the jury have found, That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error; for that Plea is contrary and repugnant in itself, to allege the payment before the date of the Obligation: But it was moved, That here the day of payment is not material, and but matter of surplusage; for the Issue is, Whether the Defendant paid the money before the 15. day of October? and the jury have found the negative, so as the day in the Scilicet is not material, and the alleging of that is matter of surplusage: As 20 H. 6. 15. Trespass Quare clausum fregit, & herbam consumpsit, continuand. transgress. from such a day usque ad diem impetrationis brevis praedict. Scilicet, 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil. the October before February: But it was not allowed; for the day of the Writ brought is certain enough, and the mistaking in the Scilicet is not to any purpose. Wray, Payment before the day is not a good Plea, if he doth not show the day and place. It was adjourned. CXXVII. Parker and Burton 's Case. Trin. 31 Eliz. In the King's-Bench. IN an Action upon the Case for slanderous words, (scil.) That the Plaintiff was perjured: The Defendant doth justify, That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another, and from thence a Commission was awarded out of the said Court to divers persons, to examine certain Witnesses at B. in Berk. and there, by virtue of the said Commission, the Plaintiff was deposed, & false deposuit, praetextu cujus, he spoke the said words. Antea 811. The Plaintiff replicando saith, De injuria sua propria absque tali causa: upon which Issue was joined, and tried in Berk. and found for the Plaintiff. And it was moved by Coke in Arrest of judgement, That the said Issue ought not to be tried in Berks only, but by both Counties Mid. and Berks; for all the matter of justification doth arise out of both Counties; the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks; all which matters is but one Case: as 2 H. 7. 3. and 4. Atkinson, The Trial is well for the manner, for the matter of the justification is the Perjury, and the Suit and Commission are but induction and conveyance to the Action: Also the Defendant hath not showed, that the Exchequer-Chamber is in the County of Midd. as he ought: As where a man pleads a thing done in any Court, except in the Common-Pleas, he ought to show in what County the said Court was at the time that such thing was done, for Communia Placita teneantur in loco certo. Gawdy and Wray, When the Defendant doth justify by reason of the Perjury, and the Plaintiff replies without such cause, the same amounts to as much as if he had traversed the Perjury, which being supposed to be committed there, shall be tried there. Coke, It was the Case of one Loveday, 25 Eliz. In an Action upon the Case for slanderous words, the Defendant did justify, by reason of a Robbery committed by the Plaintiff in another County; and the Plaintiff pleaded De son tort demesne sans tiel Cause: the same shall be tried by both Counties: See 2 H. 7. 3. Also it was moved, that here it is not showed in what County the Exchequer Chamber is: Admit that it be in Berks, yet it ought to be tried by both Counties, and that was Chelderlie's Case: And although it be not showed in what County the Exchequer Chamber is, the Plaintiff had judgement to recover, and the Trial was held good enough. CXXVIII. Sir Tho. Bacon 's Case. Hill. 31 Eliz. In the King's Bench. A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden, to show cause, (whereas the Earl of Lincoln, late High Admiral of England, had granted to them by Letters Patents, to be Vice-admirals' in the Counties of Norfolk and Suffolk,) why the said Letters Patents ought not to be repealed and anulled? and so the said Writ was in the nature of a Scire facias. And now it was made by Coke, Postea 114. That although the Admiral had but an Estate for life, yet the Patents did continue in force after his death: As the justices here in the Common Pleas, although they have their places but for life, yet they may grant Offices which shall be in force after their deaths, etc. And because this matter is determinable at the common Law, he prayed a Prohibition; for in the Admiral Court they will judge according to the Civil Law: and the Court gave day unto the other side, to show cause unto the contrary, or otherwise a Prohibition should be awarded. CXXIX. Weshbourn and Mordant 's Case. Mich. 31 Eliz. In the King's Bench. IN an Action upon the Case, the Plaintiff declared, 1 Cro. 291. 1 Len. 247. 3 Len. 174. That whereas he was possessed of a parcel of Land called the Parsonage, lying adjoining to a certain River, from the 29 of May, 29 Eliz. until the day of the bringing of this Writ, the Defendant had the said twentieth day of May stopped the said River with certain Loads of Earth, and so it continued until the fourteenth day of February, by which his land was drowned, and so he had lost the profit of it by that time. And it was moved in Arrest of judgement, That upon the Declaration there doth not appear any cause of Action, for the Plaintiff hath made Title to the Land drowned from the twentieth of May, so as that day is excluded, and the Nuisance is said to be made the twentieth day, and so it appeareth the Nuisance was before the possession of the Plaintiff; and if it were so, then cannot he complain of any wrong done before his time: To which it was answered, That although the stopping was made before his possession, yet the continuance of the same is after, and a new wrong, for which an Action lieth: as 5 H. 7. 4. It was presented, That an Abbot had not cleansed his Ditch, etc. by reason of which the Highway is stopped: The Successor shall be put to answer to the said Indictment, by reason of the continuance of it: And see, that continuation of a Nuisance is as it were a new Nuisance, 14 and 15 Eliz. 320. And it may be that the Plaintiff was not damnified until long time after the twentieth day of May, (scil.) after the stopping: And the words of the Writ here are satisfied and true: And afterwards judgement was given for the Plaintiff. CXXX. Trusto and Ewer 's Case. Pasc. 31 Eliz. In the King's-Bench. 1 Cro. 23. IN this Case it was agreed for Law, That if a Controversy be betwixt two for the Title of a Lease for years, and they submit the matter to Arbitrement: and the Arbitrators award, that one of them shall have the term: the same is a good Gift of the interest of the term: See 12 Ass. 25. 14 H. 4. 19 24. But if the Award be, that the one shall permit the other to enjoy the term, the same is no Gift of the interest therein: See, as to the Arbitrement, 9 E. 4. 44. CXXXI. Andrew 's Case. Pasc. 32 Eliz. In the King's Bench. 1 Cro. 214. IN the Case of Andrews of Gray's Inn, it was holden by Gawdy and Fenner, justices, That if a Lease for years be made by Deed indented with these words, demisi & ad firmam tradidi; That upon that Writ of Covenant lieth against the Lessor, if he himself entereth upon the Lessee; but contrary if a stranger enter, if it hath not clause of Warranty: For by Fenner, when Covenant is brought upon that word Demisi, the Plaintiff shall recover the term itself, but not damages, and that cannot the Plaintiff do when a stranger entereth; and that was holden for clear Law: See 9 Eliz. Dyer 257. A covenant against the Heir in such case. CXXXII. Big and Clark 's Case. Hill. 32 Eliz. Rot. 549. In the King's Bench. IN an Action upon the Case in the Court of Hertford, the Plaintiff declared, How that the Defendant hired a Horse of the Plaintiff to carry three Bushels of Coals from Ware to his House in Hertford, and that the Defendant in consideration thereof did promise the Plaintiff, quod ipse in via praedicta nollet onerare the said Horse aliter, than with the said three Bushels of Coals: And the Plaintiff said, That the Defendant had loaded the said Plaintiff's Horse with a greater weight than with the said Coals, and so had hurt his Horse, upon which the Plaintiff recovered: And Error was brought, and the Error assigned was this, That it is not specially showed, how the Defendant aliter loaded the said Horse, with what thing: As 19 H. 6. In Debt against Executors, they plead, That they have only expended such a sum of the Goods of the Testator in Funeral expenses, absque hoc, that they have administered aliter, vel alio modo; the Plaintiff cannot Reply and say, that they have administered aliter, vel alio modo, without showing how. Another Error was assigned, because it is not certainly showed, how the Horse was hurt; but that Exception was not allowed, for it is not the point of the Action: but for the first matter, the judgement was reversed, CXXXIII. Toley and Windham 's Case. Trin. 32 Eliz. In the King's Bench. IN an Action upon the Case, the Plaintiff declared, 1 Cro. 206. 3 Len. 150. That whereas certain controversies were betwixt the Plaintiff and Defendant for the profits of certain Lands which the Father of the Defendant had taken in his life time: and whereas he had brought a Writ of Subpoena out of the Chancery against the Defendant for the said profits taken by the Father of the Defendant in his life, intending to put in a Bill against the Defendant in the said Court: The Defendant, in consideration that the Plaintiff would stay his intended Suit, promised, That if the Plaintiff can prove, that the Father of the Defendant took the profits, or had the possession of the said Land under the Title of the Father of the Plaintiff, that he should pay to him for all the said profits: And farther declared, That he had proved, that his Father had taken the profits under the Title of the Father of the Plaintiff. Coke took up Exception to the Declaration, because it is not showed, How and by what means, under the Title of the Father of the Plaintiff, he took the profits, as by Lease, for that is traversable. Gawdy, justice, The Son hath not any cause of Action or Suit for the profits taken in the time of the Father, therefore the staying of Suit arising from such matter is not any consideration: But as to the other Exception, because it is not showed how, and by what Title he took the profits, it is well enough. As unto the other Exception, it was moved at another day, that there was a Case betwixt Stone and Withypool; An Infant promiseth to pay a simple Contract, Stone and Withypool's Case. and thereupon there was a Suit in the Chancery, but it was holden that it was not maintainable, for the promise was void, because there was no consideration. And it was agreed by all the justices, that this Action would not lie; for the Plaintiff hath declared, That where certain Controversies were betwixt the Father of the Defendant and him, (scil.) the Plaintiff himself, for the profits of certain Lands, which the Father of the Defendant had taken in the time of the Father of the Plaintiff, etc. and he doth not show, that he himself is Heir or Executor of his Father, and therefore the Chancery cannot give him any remedy: And on the other side, if the Plaintiff had any remedy, the same aught to be against the Executors of the Father of the Defendant; and the Plaintiff hath not allowed, that the Defendant is Executor to his Father, and therefore he hath not any colour of Suit against him, nor therefore is there any consideration. Fenner, The Defendant by the Law is not chargeable, nor in conscience, upon this matter he shall be charged; for by the same reason he should be charged for the simple Contract of his Father, and a promise to pay it will not bind him: And afterwards judgement was given against the Plaintiff. CXXXIV. Veal and Robert 's Case. Trin. 32 Eliz. In the King's Bench. IN an Ejectione Firmae, the Plaintiff declared, 1 Cro. 199. How that John Veal leased to him, 30 Eliz for twenty one years ten Acres of Land called M. The Defendant pleaded, That before the Demise and Ejectment, one John Roberts was seized of the said ten Acres called M. in Fee, and 14 Eliz. demised the same to one John Cox for life, and afterwards 25 Elizab. John Roberts died, and the Reversion descended to the now Defendant; Cox demised the Land to John Veal for thirty years, who leased unto the Plaintiff, as in the Declaration, of which he was possessed quousque, etc. Cox died 30 Eliz. after whose death the Defendant entered and ejected prout was lawful for him to do, etc. The Defendant by replication saith, That before John Roberts had any thing, one Wall of P. of Gloucester was seized of the said ten Acres inter alia, and 29 H. 8. demised to John Veal, Father of the Lessor of the Plaintiff, the said Land inter alia, by the name of two Messages and two Yard Lands in the County of Gloucester, nuper in tenura J. S. and of two other Houses in a Yard Land tunc in tenura E. H. nec non de ten acres vocat. M. lying inter C. & I. tunc in occupatione E. W. for term of years yet during, Habendum dict. four Messages and three Yard Lands, in tenura I.S. & E.H. nec non the said ten acres to the said John Veal, à tempore mortis sursum redditionis forisfactur. vel determinationis status vel terminor. praedict. I.H. & W. in eisdem, for sixty years; by force of which he was possessed of the interest of the term aforesaid: and afterwards 14 Eliz. the Estate of the said E. W. in the said ten acres ended, for which the said John Veal entered, and 25 Eliz. died intestate; and Administration was committed to J. S. Lessor of the Plaintiff, by force of which he entered, and Leased to the Plaintiff, and so he was possessed until ejected: The Defendant did rejoin, and said, That long before John Roberts had any thing, William Roberts was seized in Fee, and enfeoffed the said John Roberts before the Ejectment supposed, who demised unto John Cox, and so as in the Bar, absque hoc, That the said Abbot demised to the said John Veal, modo & forma prout the Plaintiff replicando allegavit, the which matter he is ready to aver, & petit Judicium: The Plaintiff said, That the Abbot demisit ut supra, & hoc petit quod inquiratur per patriam: and it was found for the Plaintiff. And it was objected by Snag, That this issue was not well taken, for the Estate of John Veal was not to begin before all the Estates, being in esse at the time of the making of the Lease by the Abbot of Gloucester, are expired. Coventry contrary; and that the Estates do begin severally, and singulatim, as the Estates precedent shall end, and shall not expect until the other Estates be determined; which see justice Needham's Case, now reported by Coke, 5 part. 37 Eliz. and see Pollard's Case there cited. At another day it was objected by Snag, That the new Estate could not begin in any part until all the former Estates be determined; for if this new Lease be made, reserving Rent; and one part thereof is now come in possession, than he should pay for that part all the Rent: But the Court was clear of Opinion, That the Lease in the ten Acres did begin presently, without having regard to the other Estates in demand for the intent of the Lessor was, That no mean time should be betwixt the expiration of the Lease for ten years, and the beginning of the new: As in the Case betwixt Wrotesley and adam's, 1 Eliz. Plo. Com. 198. A Lease is made to begin after the expiration of a former Lease for years; the first Lessee takes a new Lease of the Lessor, which was a Surrender of the former Lease; If the Lease, (scil.) the second Lease, shall now begin? was the question: or should expect until the first Lease shall end by expiration, for the former Lease is ended, but not expired, i. by effluction of time: And it was holden, that the said second Lease should begin presently; for the intent of the Lessor was, that no mean time should be betwixt the end and beginning of the said Estates. And afterwards judgement was given for the Plaintiff. CXXXV. Pasch. 32 Eliz. In the King's-Bench. NOTE, If a Record be removed out of the Common-Pleas into the King's-Bench by Writ of Error, and the Plaintiff shall not assign his Errors, than a Scire facias shall issue forth, quare executionem habere non debet: and upon summons, or two Nichels' returned, the Plaintiff shall have Execution, yet the Plaintiff may assign his Errors. And to such a Scire facias Exception was taken, because the Writ was coram nobis apud Westm. where it should be, ubicunque fuerimus in Anglia: and for that cause a Supersedeas was granted. It was also holden, That although a Writ of Error doth not lie here, upon a judgement given in London; yet upon a judgement given at Newgate, which is upon Commission in their Sessions, Error lieth here. CXXXVI. Bows and Vernon 's Case. Pasch. 32 Eliz. In the King's-Bench. DEBT upon an Obligation was brought by Bows against Vernon and Hennington, who pleaded the Statute of 23 H. 6. and showed, that Vernon was in Execution, and that the Bond was made for his deliverance against the Statute: The Plaintiff replied, and said, That at the time of the making of the said Bond, the said Vernon fuit sui juris, and at large, absque hoc, that he was in Prison tempore confectionis scripti praedict. modo & forma, etc. Egerton, Solicitor, moved, that the Traverse was not good; for if a man be in Prison in Execution, and makes a promise to make a Bond, for which he is enlarged, and within an hour after he makes the Bond, the same is within the Statute: and therefore this issue is not well joined, but it ought to be absque hoc, that it was pro deliberatione, etc. and of such opinion was Fenner and Gawdy, justices: See Dive and Manningham's Case, 4 E. 6. Plo. Com. 68, 69. acc. CXXXVII. Hunt and Sun 's Case. Hill. 29 Eliz. In the Common-Pleas. IN an Action upon the Case, the Plaintiff declared, Owen Rep. 42. 1 Cro. 118. 1 Roll. 30. 4 Len. 13. That whereas the said Plaintiff was seized in his Demesn as of Fee, of certain Land, and shows the certainty of them; the Defendant Sun, in consideration that the said Plaintiff permitteret the said Sun, occupare terras praedictas ab eodem die, (scil.) 20 Julii, 27 Eliz. usque ad secundum diem Novembris, quod esset in Anno Dom. 1589. super se assumpsit, quod ipse idem W. Sun ad festum omnium Sanctorum proxime sequen. 10 l. 2 s. 6 d. ac abinde annuatim durante termino dicto 20 l. & 5 s. at festa Annunciationis beatae Mariae, ac omnium Sanctor. per aequales portiones solvend. eidem Hunt (the Plaintiff) been & fideliter contentare vellet: Ac licet praedict. W. Hunt permisit praefat. Sun occupare terras praedict. à dict. 20 die Julii, 27 Eliz. usque ad secundum diem Novemb. 28 Eliz. Licetque post dictum 20 diem Julii, 27 Eliz. & ant praedict. diem 2 Novemb. Anno 20 Eliz. dictum festum omnium Sanctor Anno 27 Eliz. supradict. ac festum Annunciationis beatae Mariae Virgins, ac festum omnium Sanctor. 28 Eliz. praeterierunt, praed. tamen W. Sun dict. 10 l. 2 s. 6 d. add praed. festum omnium Sanctor. proxime sequent. post permissionem & assumptionem praed. ac aliud 10 l. 2 s. 6 d. ad festum Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest. omnium Sanct. Anno 28 Eliz. supradict. nondum solvit, etc. The Defendant pleaded, That the Plaintiff entered into parcel of the premises ultimo Octob. 28 Eliz. & eadem occupare eidem W. Sun non permisit: upon which they were at issue, and it was found for the Plaintiff: And now it was moved in Arrest of judgement, That the Plaintiff had not cause of Action before the whole Term be expired, for it is an entire Assumpsit, and cannot be by Action severed; and therefore it was said, That if I promise to pay you 20 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. etc. there before the last day of payment no Action lieth, for the sum of 20 l. is one and entire: but if I promise to another at Easter next 10 l. and at Midsummer as much, etc. here are several Assumpsits; and upon default of payment of the first sum Actio oritur, without respecting the last payment: But at the last the Court was agreed, That judgement, notwithstanding the said Exception, should be given for the Plaintiff: and said, That the Declaration was well enough, as well in respect of the Exception aforesaid, as also that this word [licet] is effectual enough for the setting down the permission. CXXXVIII. Roper 's Case. Trin. 30 Eliz. In the King's-Bench. Stamf. 166, 167. Terms of the Law, 75, 76. Inst. 131. 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 the same until he was outlawed; and thereupon Coke moved to have restitution of the Goods taken: And B. of the Crown-Office said, That the Fresh-suit was not enquired; for upon an Appeal one shall not have restitution without Fresh-suit. Coke, The Books are, That if the Defendant in an Appeal of Robbery be attainted by Verdict, the Fresh-suit shall be enquired of: but here he was attainted by Outlawry, and not by Verdict, and so the Fresh-suit cannot be enquired: and here the Indictment within a Week, and the Appeal within a Month after the Robbery, is a Fresh-suit. Wray, Fresh-suit in our Law is to pursue the Felon from Town to Town, but the suing of an Appeal is not any Fresh-suit: See 21 E. 4. 16. Restitution granted upon an Outlawry in an Appeal of Robbery without Fresh-suit enquired: 1 H. 4. 5. if he confess the Felony: See 2 R. 3. 13. CXXXIX. Piggot and Russel 's Case. Trin. 30 Eliz. In the Common-Pleas. 1 Cro. 124. 1 Co. English his Case. NOTE, it was agreed per Curiam in this Case, That if Tenant for life being of full age, and he in the Remainder within age levy a Fine, and afterwards the Infant reverseth the Fine as to him for the Inheritance, he shall not enter for forfeiture, because he joined in the Fine, and so assented to it. CXL. Sir John Savage 's Case. Trin. 29 Eliz. In the King's-Bench. IN Trespass, the Defendant justified, because Sir John Savage was seized of the Manor of D. within which Manor the custom is, That if any man taketh to Wife, any customary Tenant of the said Manor, and hath issue, and shall overlive his Wife, he shall be Tenant by the Courtesy; and pleaded farther, That he took to Wife one Ann, to whom, during the said coverture, Postea 208. a customary Tenement of the said Manor did descend, and that he had issue by the said Ann, and that she is dead, and so, etc. and it was adjudged, That the Husband by this custom upon this matter, should not be Tenant by the Courtesy; for Ann was not a customary Tenant of the said Manor at the time of the marriage. CXLI. Stainsby and Hales 's Case. Trin. 29 Eliz. In the King's-Bench. IN a second Deliverance by Stainsby against Hales, Challenge was taken for the Hundred, and it was showed and confessed, That the Hundred of Feversham in Kent, was and is within the Lathe of Seray, and that there is not, nor ever had been any Court holden in the said Hundred of Feversham, but that all the Inhabitants within the said Hundred have used to go to the Court of the Lathe of Seray: and it was holden by all the justices, that in this Case Challenge aught to be taken for the Lathe, and not for the Hundred, for no Court had been holden in the Hundred; See 2 H. 4. 6. 11 H. 4. 2. A juror was challenged for the Hundred, and the Triors said, That the party challenged was not of the said Hundred, where, etc. but they farther said, that there were six Hundreds, all which came to one Court; and the same was holden a good answer to the challenge, and the party challenged was sworn. CXLII. Sands and Hempston 's Case. Trin. 27 Eliz. Rot. 1201. In the King's-Bench. IN a Replevin, The Case was, That Henry, Earl of Westmoreland, Dy. 270. 2 Brownl. 26. 3 Len. 59 1 Leon. 4. 16. Postea 15. 2 Roll. 157. was seized of the Manor of Kennington in Fee, and granted a Rent-charge to William Cordel, afterwards Master of the Rolls, for life, and afterwards made a Feoffment thereof to Sir John Clifton, who granted a Copyhold to Sands for life, according to the custom of the said Manor, the same being an ancient Copyhold; Sir John died seized, the Rent is behind, Sir William Cordel died, Hempston as Bailiff of Cary, Executor of Sir William Cordel, distrained for the arreages upon the possession of Sands, and it was clearly holden by the whole Court, That the possession of the said Copiholder was not chargeable to distress upon this matter, for the Copiholder is not in by him who ought immediately to pay the Rent, but is also in by the custom: Note by some, That the possession of a Copiholder is not liable to the Executor, by the Statute of If it be so, that the Lord of the Manor be within the degree limited by the said Statute. CXLIII. Hooper 's Case. Trin. 29 Eliz. In the Common-Pleas. HOoper of Salisbury was brought to the Bar, to wage his Law in an Action of Debt, and upon examination, the matter appeared to be, That the Defendant was indebted to the Plaintiff upon a simple Contract, and upon communication betwixt them, it was agreed, that one J. S. should become bounden to the Plaintiff in an Obligation for the said debt, to be paid at a day certain, which J. S. became bound accordingly, and the Defendant was also bound to the said J. S. in a counterbond for to save him harmless against the Plaintiff. And the Court was clear of opinion, that upon this matter, the Defendant could not safely wage his Law; for by this Obligation, made by a stranger to the Contract, the Contract upon which the Action is brought is not determined: And also here the Obligation was made after the Contract; But if J. S. had been bound, Ut supra, upon the Contract, it had been otherwise; and upon that reason, the Case of one Pudsey was adjudged. Pudseys' Case. Where, upon the Contract, a stranger to the Contract being present, made promise to enter into a Bond unto the party, etc. for the payment of the money, agreed upon the Contract, and afterwards became bounden accordingly; in that Case the Contract was determined, because the Obligation was pursuant to the Contract; and in the principal Case, the Court would not admit the Defendant to wage his Law, although he earnestly desired it. CXLIV. Knevit and Taylor 's Case. Trin. 29 Eliz. In the Common-Pleas. KNevit informed against Tailor in the Common-Pleas, upon the Statute of Usury, and the parties were at issue; and the matter depended four Terms untried after issue was joined; and now the Defendant prayed, for his own expedition, that he might have Nisi Prius with Proviso, as the course is in the Exchequer in such case, to send Commissions into the Country where the Information is laid for the trial of the issue joined in the said Court, and that at the suit of the Defendant. And it was much doubted, if the Court might grant such Nisi Prius, because the Queen is Quodammodo a party to the suit. And by Fleetwood, Serjeant, The common course is so; But where the Queen herself is merely party, no such Nisi Prius shall be granted: and he said, That the Informer might be Nonsuit, although that the Queen be in such manner party. Nelson, Prothonotary, said, That he never saw such a Precedent, Postea 116. See F. N. B. 241. CXLV. Alford and Lea 's Case. Trin. 29 Eliz. In the King's-Bench. 1 Cro. 54. Post 181. ALford brought Debt upon a Bond against Lea, and the Case was, That the parties were bound the one to the other upon Condition, to stand to the Award of B. and C. who award, that the said Lea, before such a Feast, shall make a release to Alford, but no place assigned where the release shall be delivered to the Plaintiff. Lea, Before the said Feast, sealed a release according to the award, and delivered the same to one Pine, to the use of the Plaintiff, who delivers it to one Mason, one of the servants of Alford, the Plaintiff, who two or three days after, offers it to Alford, but he refused it, It was holden by Wray, That the award upon this matter was well performed, notwithstanding the refusal of Alford, See Tawe's Case, 1 Eliz. Dyer 167. A. enseals, Quoddam scriptum Obligat. and delivers the same to one C. for to deliver it to the Obligee, who delivered it accordingly, as the Deed of A. who refuseth to receive it; and after gets the Obligation, and recovers upon it. CXLVI. Marsh and Rainsford 's Case. Trin. 30 Eliz. In the King's Bench. IN an Action upon the Case; the Case was, That a communication was had betwixt the parties, That the Plaintiff should marry the daughter of the Defendant, in consideration of which, the Defendant promised the Plaintiff to give him 200 l. but they could not agree upon the days of payment of it, after which they stole away the Defendant's daughter, and secretly married her, without the Defendant's knowledge; yet afterwards the Defendant gave his consent to it, 1 Leon. 102. and allowed of the said marriage; and in consideration of the said marriage, promised to pay the Plaintiff 100 l. Egelton, Solicitor General for the Defendant, That the Action upon this matter will not lie; for here the consideration is precedent to the promise, whereas the consideration in such cases, aught to be future and subsequent; and as the Case is here, the Plaintiff is out of the course of consideration of marriage; for he hath stolen away and married his wife, without the knowledge or consent of her father: See such Case, 10 Eliz. Dyer 272. The servant of one A. is arrested in London, and two friends of his Master bail him, and afterwards A. promiseth to them, for their friendship, to save them harmless from damages and costs, etc. It was holden that the Action doth not lie, for here is not any consideration, for the bailment was of their own heads, and it is executed before the promise; But if the Master before the enlargement of his servant had requested the Plaintiff for to bail his servant, and he had so done, the Action would have lain. Wrey, justice, Although the consideration be precedent, yet if it were made at the instance of the other party, the Action would have lain. But here the natural affection of the father to his daughter, is sufficient matter of consideration. If one cometh to a Sergeant at Law to have his counsel, and the Sergeant doth advise him, and afterwards the Client in consideration of such counsel, promiseth to pay him 20 l. an Action lieth for it. And so Popham said, it had been adjudged in the Exchequer: And it is the common Practice in this Court, in consideration Quod querens deliberasset to the Defendant, etc. He promiseth to pay him so much; and as it was late adjudged betwixt Style and Smith: If a Physician, who is my friend, hearing that my son is sick, goeth to him in my absence, and helps and recovers him, and I being informed thereof, promise him in consideration, etc. ut supra, to give him 20 l. an Action will lie forth money; and afterwards in the principal Case judgement was given for the Plaintiff. CXLVII. Williams and Linford 's Case. Trin. 30 Eliz. In the King's Bench. WIlliam's brought an Action upon the Case against Linford, 3 Len. 177. for standerous words spoken of the Plaintiff's land, viz. Williams is worth nothing, and do you think that the Manor of D. is his? It is but a compact between his brother Thomas and him; And farther declared, That at the time of speaking of the words, he was in speech with one J. S. to give to the said J. S. the said Manor of D. for his Manor of K. and that by reason of the said slanderous words, 1 Cro. 346, 787. the said J. S. durst not proceed in the said intended exchange. It was objected, That upon this matter, an Action upon the Case doth not lie; For the scandalous words were not spoken to him who was to be the Purchasor of the said Manor, Smith and Johnson's Case. but to a stranger. For in the Case betwixt Smith and Johnson, Johnson was in speech with another to sell his lands to him; and Smith said to him who was to purchase them, Will you buy Johnson's land? Why, it is troubled with more charges and encumbrances than it is worth. Wray, justice, There is no difference, whether words be spoken to the party, or unto a stranger, for in both cases the Title of the Plaintiff is slandered, so as he cannot make sale of his lands: judgement was given for the Plaintiff. CXLVIII. Barefoot and Luter 's Case. Trin. 30 Eliz. In the King's Bench. THE Case was, A. B. and C. joint-tenants in Fee, C. granted his part unto D. and afterwards A. B. and D. Leased for years, rendering Rend, and afterwards A. died, and they brought an Action of Debt for the Rent reserved, and declared generally, and upon the Evidence, the special matter appeared, that two parts of the Rent did belong to B. and but the third part to D. And the opinion of the Court was; That the Declaration ought to have been special upon the whole matter; For Prima fancy, it was conceived that each of the Plaintiffs ought to have had the moiety of the Rent, and that is a supposal of the Declaration: But now upon the Evidence, it appeareth to the contrary: So as the Defendant nil debet, in that form; Another matter was, The Plaintiff declared of Rent of a whole year, ended at the Feast of St. Michael last passed, whereas the Rent was not due at Michaelmas, as the Plaintiff had declared, but the thirtieth day after. CXLIX. Brown and Ordinacre 's Case. Trin. 32 Eliz. In the King's Bench. HEnry Brown, and Joice his wife, Executors of Thomas Brown, brought an Action upon the Case against Van Ordinacre, Alien, and declared, That where A. and B. were indebted to the Testator, The Defendant, in consideration that the Testator respectuaret the said A. and B. pro solutione debiti praedict. per spacium unius septimanae tunc proxime sequen. to pay the Debt to the said Plaintiffs, modo sequent. viz. one moiety within one week after, and the other moiety at the end of the said week; and farther declared, That the Testator did forbear by the space of a week; and after Imparlance, Joice was summoned, and severed. The Defendant pleaded, That he did not promise, modo & forma prout predict. Brown allegavit, and that it was alleged by both Executors. And by a jury, De medietate Linguae, it was found for the Plaintiff. It was objected by Coke, That here is not any issue, prout Brown querens allegavit, where in truth, it was alleged by both the Executors, before severance, and not by Brown only. Also here is not any sufficient consideration alleged; for the Plaintiff hath declared, That he hath forborn by a week, without saying, next following, as the consideration is laid in the Declaration; But that was not allowed, for so it shall be intended. It was also objected, That the Declaration is contrary to itself; for it shown, That in consideration that the Testator should forbear for a week, he promised to pay him within a week; but that exception was not allowed: For the week, in the Assumpsit, shall be construed, the week after the week in the consideration. Another exception was against the trial; for the Defendant being an Alien, The Venire facias was to summon twelve persons, Quorum quilibet eorum habeat 4. l. in lands of annual Rent, and that cannot be; for Aliens cannot have lands, not being made Denizens: By the Common Law before the Statute of 27 E. 3. An alien by the Grant of the King, might have an Action depending betwixt him and a Denizen, per medietatem Linguae, which see 22 E. 3. 14. and afterwards to make the same a general Law, the Statute of 27 E. 3. was made; but the same doth not extend to cases where the King was party, which defect was supplied by the Statute of 28 E. 3. cap. 13. Afterward came the Stat. of 2 H. 5. by which it is enacted, That where the debt or damages amount to 10 marks every juror returned for the trial, should be able to expend lands of the value of 40 s. which was mischievous as to aliens; and for the remedy of that, The Statute of 8 H. 6. cap. ult. was made, which took away the effect thereof, as unto aliens; Then came the Statute of 27 Eliz. which enacted, That every juror, etc. should expend 4 l. lands, but that is where 40 s. was required only, and doth not extend to our Case; and therefore the Venire facias in our Case, was not well awarded, To which it was said by the Clarks, That after the Stat. of 27 Eliz. It had always so been, to make the Venire facias generally according to the Statute; but that is not a thing material, and the Sheriff needs not regard that: Wherefore it was holden; That the Venire facias in the principal Case was well awarded. CL. Mingey and Earl 's Case. Pasc. 32 Eliz. In the King's Bench. IN Debt upon an Obligation, The Defendant pleaded, 1 Cro. 212, 267. That the Obligation was with condition, That whereas the Defendant had sold to the Plaintiff certain wood, growing upon certain lands, called S. in the County of Sussex. If the Plaintiff might quietly take and enjoy the said woods; and if the ground whereupon it groweth be four miles from the Town of Rye, that then, etc. And for plea he said, That the Plaintiff had quietly taken and enjoyed the said wood, and that the said land, by the next high and usual way for carriages, is 4000 paces from the Town of Rye, reckoning to every pace five foot; upon which the Plaintiff did demur in Law. Gawdy, justice, For the computation of a mile, in common understanding, it is 1000 paces, and if it shall be counted by the common way, is the doubt; but the meaning of the Parties was, That the Plaintiff by felling of that wood, should not encur the damage of the Statute of 23 Eliz. cap. 4. And the Statute doth not respect the way of carriage, but that altogether, and to all intents, it be the distance of four miles betwixt the place where, etc. and the said Town of Rye; and here it is not material which is the common and usual way to Rye for carriages; but the nearness of the place where, etc. Quomodocunque, is the matter; and therefore the Defendant ought to have pleaded, That the place where, etc. is every way distant four miles from Rye; and as to that, that he hath answered four miles, with 4000 paces, the same is well enough; for although he doth not answer the direct the words; yet if he doth answer in effect, it is well enough; for 1000 paces, and a mile, are all one in substance: Wray, The distance shall be accounted the nearest way, not as a Bird may fly. CLII Wellock and Hammon 's Case. Trin. 31 Eliz. In the King's-Bench. 3 Co. 20. 1 Cro. 204, 205. THis Case is reported by Sir Edw. Coke, in his 3 Reports: See the principal case there. Here is a Limitation, and not a Condition; for if it should be a Condition, it should descend to the Heir at the Common Law, which is the Devisee, and so shall be extinct in his person, and then the restraint is of no effect, for there shall be then no means to compel the Heir who hath the Land, to pay the Legacies, nor have the Legatories any remedy to compel the son to pay the Legacies, which shall not have effect, if it be not taken by way of Limitation: and to that intent, Scholasticas Case was cited, 15 Eliz. Dyer, 317. And this word, paying, in a Devise, shall never be construed to be a Condition. And it was holden by the justices, That where a man deviseth lands to his younger son, paying such a sum unto such, the Devisee hath a Fee-simple; and if he do not pay the moneys accordingly, his Estate shall determine, by the same Limitation, and shall go to the heir without any other limitation, and the quantity of the moneys, be it great or small, is not material: And they were of opinion also, that here the moneys were not payable, but upon request: Coke, 2 Cro. 56, 57 1 Roll 439. If a man be bound to perform Covenants, and one Covenant is to pay Legacies, there he needs not pay them without a demand; But where one is expressly bounden to pay such a Legacy, there he must pay it at his peril. And he said, That the Case, 28 H. 8. Dyer 33. is not Law; for there it is holden by Fitz-herbert and Baldwin, That where land was devised unto the Prior, and Convent of S. Barthol. Ita quod reddant annuatim Decano & Capitulo Sancti Pauli. 5 l. and they fail of payment of it, that their Estate shall cease, and the Dean and Chapter, etc. shall have, etc. such conditions void. And that upon one Fee-simple, another Fee-simple cannot be limited; For by Coke, Common experience is otherwise, That upon a Fee-simple determinable, another Fee-simple may be limited; which Gawdy, justice granted: And as to the principal Case, judgement was given, with the limitation. CLIII. Parker and Harrold 's Case. Pasc. 28 Eliz. Rot. 485. In the King's Bench. 3 Len. 142. IN Debt upon an Obligation, The Condition was, That whereas the Plaintiff and Defendant be now jointly seized of the Office of the Register of the Court of Admiralty, If the Defendant shall permit the Plaintiff to use the said Office, and take the profits of it wholly to his own use during his life, without or interruption done by him, that then, etc. The Defendant Pleaded, That the custom of the Realm of England is, That the Lord Admiral for the time being, might grant the said Office, and that such grant should be good but for the life of the Grantor; antea. 103. and shown farther, That the Lord Clinton, Lord Admiral; granted the said Office unto the Plaintiff and the Defendant, and died; and that the Lord Howard was appointed Lord Admiral, and that he 27 Eliz. granted the said Office to one Wade, who ousted and interrupted him, before which time, the Defendant did suffer the Plaintiff to enjoy the said Office, and to take the profits of it, upon which the Plaintiff did demur in Law, Coke argued for the Plaintiff, That the Plea of the Defendant is not good; for he hath not entitled the Lord Admiral to grant the Office; for he hath said, That the custom of the Realm of England is, and that cannot be good, for it cannot be tried; for a Visne cannot be from the Realm of England: Also if it lie through all the Realm, than the same is Common Law, and not custom, which see, Br. Custom 59 and see 4 & 5 Ph. & Ma. 152, 153. an express Case of the same Office, and there he prescribed, Per consuetudinem in Curia, etc. and also that such grant is good but during the life of the Admiral who granteth it: Also he doth not answer to any time after the grant of the Admiral Howard; for if we were lawfully put out by Wade, yet the Defendant against his Bond, shall not put us out, or interrupt us: As 5 E. 4. 115. In a Quare Impedit against an Abbot, and the Incumbent, who make default upon the distress, upon which a Writ was awarded to the Bishop for the Plaintiff, upon which the Bishop returned, That the Incumbent had resigned, of which he hath given notice to the Prior, and lapse incurred; and the Bishop collates the former Incumbent, and then this Writ came to him; Now, although the Incumbent be in by Title, yet he is bound by the judgement: So here, although the Defendant hath another Title, and the former Title of the Plaintiff be determined, yet against his own Bond and Deed, he shall not put out the Plaintiff, etc. And the Court was clear of opinion, That judgement should be given for the Plaintiff; but afterwards the Cause was compounded by order of the Lord Chancellor. CLIII. Bedel's Case. Trin. 32 Eliz. In the King's-Bench. THE Case was, 3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann. and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands. A. brought an Action of Covenant; the Defendant pleaded, That before the day of payment the Plaintiff ousted B. of his Farm: It was moved by Godfrey, that it was no Plea, because this is a collateral sum, and not for Rent issuing out of Land: Also the Defendant is a stranger to the Contract for the Farm: But the opinion of the Court was to the contrary; for the Defendant hath covenanted, that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant, and here is Quid pro Quo; and here the consideration upon which the Covenant is conceived, (scil.) the Farm, and the occupation of it, is taken away by the act of the Plaintiff himself. CLIU Heal 's Case. Pasch. 30 Eliz. In the King's-Bench. HEal, a Bencher of the Inner Temple, being at the Bar; Wyatt, another Apprentice at Law, informed the Court against the said Heal, and shown, That where his Client had obtained a judgement in the King's-Bench: The said Heal, being of Council with the other part, did advise his Client to bring the party, who had obtained the judgement, into the Chancery, and he procured an Order against him, Co. 3 Inst. 12. 123, 124. 4 Inst. 86, 91. by which he was cast into Prison: Which matter Heal could not excuse, but submitted himself to the Court, saying, That he had seen a precedent which induced him so to do: and that was the Case of one Prince, Prince's Case. where a judgement given in this Court was drawn into question and examined in the Chancery: But the justices said, That the same was an ill precedent, and against the Statute of 4 H. 4. which is, That no judgement be undone but by Error or Attaint. CLV. Grace and Constable 's Case. Pasch. 30 Eliz. In the King's-Bench. SIR Thomas Grace covenanted with the Lady Constable, That where he is possessed of a Lease for twenty one years of certain Lands, That he will assure, convey and assign the said Lease to one Nevil, excepting the two last years of the said twenty one years: and he said Sir Tho. Grace was bound in a Bond to perform the Covenants of the said Indenture; upon which Indenture the Lady brought Debt against the said Sir Tho. Grace, who pleaded the Conditions, and the performance of them: The Plaintiff replicando said, That the Defendant non assuravit, conveiavit, & transposuit, Anglice, set over, the said Lease; upon which they were at issue: And at the day of the Nisi Prius, it was moved by Cooper and Beaumond, That the Issue was misjoined; for the Defendant pleads (as the Covenant itself is) That he had assured, conveyed, and assigned the Lease, and so pleaded the performance of other Covenants, etc. The Plaintiff assigned the breach in this, Quod non assuravit, conveiavit, & transposuit, Anglice, set over; which word [transposuit] is not in the Covenant, nor in the pleading of the performance thereof: and the English word [set over] although it sounds the same with assigning, doth not help the matter; and if the Latin word doth not agree with the matter, non refert of the English word, although in the Plea there be this word Anglice [set over.] Note, the Covenant was (ut supra) The Plaintiff assigned the breach, Quod non assuravit, conveiavit, & transposuit, Anglice [set over,] etc. And the Defendant pleaded, Quod assuravit, conveiavit, & transposuit, Anglice, set over, etc. And the Court was clear of opinion, That the Issue for that cause was not well joined: And afterwards, by the assent of the parties it was amended. CLVI. Doghead 's Case. Pasch. 30 Eliz. In the King's-Bench. Hutt. 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116. AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved; which Statute gives unto the King one moiety of the value, and the other moiety to the party grieved: The Plaintiff was nonsuit; It was holden by the Court, that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute (as the Title of the same doth imply) is to redress Disorders in common Informers; and so is the Preamble: and the words also of the clause of costs and damages are [Every such Informer] and so by Ive, Secondary of the Crown-Office, An Action given to the party grieved is not a popular Action; and the Statute of 18 Eliz. extends only to popular Actions. CLVII. Coney and Chomley 's Case. Pasch. 30 Eliz. In the King's-Bench. IN an Ejectione Firmae, after Verdict in Arrest of judgement, it was moved, That the Plaintiff had declared in Ejectione Firmae, Quod cum Robertus Diggon per Indenturam suam gerent. dat. 20 Maii, 1 Cro. 773. 890. dimisit, etc. where he ought to have said, iisdem die & anno: For although the Indenture bear date (ut supra) yet it may be that it was delivered at another day, and then it doth begin to be a Demise. And if in an Action upon the Case upon Assumpsit to pay money upon request, although it be found for the Plaintiff, yet if no day be put in the Declaration when the request was made, but only [licet saepius requisitus] in case where a request ought to be made, there the Plaintiff shall not have judgement; as it hath been oftentimes adjudged, Quod omnes Justiciarii concesserunt: But yet afterwards, notwithstanding the Objection aforesaid, judgement was given for the Plaintiff. CLVIII. Marsh and Jones 's Case. Mich. 29 and 30 Eliz. In the Common-Pleas. IN a Replevin, the Case upon the Evidence was, 3 Len. 114. That before the Statute of Quia Emptores terrarum, a man made a Feoffment in Fee, to hold of him by the service, solvendi post quamlibet vacationem sive alienationem, the value of the annual profits of the Lands: And it was holden by the Court, That the value shall be intended such a value, as was the value at the time of the Feoffment made, and not as it is improved by succession of time. CLIX Willoughby 's Case. Mich. 29 and 30 Eliz. In the King's-Bench. WIlliam Willoughby and two other were indicted, 1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessors have used to have Common in such a place, the said Willoughby, etc. vi & armis, etc. had enclosed it, and the Enclosure was upon their own Lands: It was moved, That upon this matter they ought not to be indicted, but the party grieved is put to his Action; as where a Presentment is made of a Disseisin: See 27 Ass. 20. And it was the Case of one Morden, Morden's Case. 1 Cro. Madox Case. 29 Eliz. upon the stopping of a Way upon his own Land: And it was said, That if it should be upon the Lands of another, it were not material: for it is but a hindrance from the taking of Common, which cannot be vi & armis. Also it was said, That the Indictment is recorded and certified, as found before the justices of Assize and Gaol-delivery, and they cannot take such Presentments: And although the said justices of Assize and Gaol-delivery were in rei veritate also justices of the Peace, yet the Indictment being recorded, and certified to be taken before them, in quality of justices of the Peace, will not help it: for the Court shall not respect any other authority, but that which appeareth upon Record; and therefore for the causes aforesaid they were discharged by the Court. CLX. Collet and Robston 's Case. Error. Hill. 30 Eliz. In the King's-Bench. 3 Len. 149. COllet and Andrews recovered in a Writ of Account against Robston: Hil. 29 Eliz. Rot. 1. and now Robston brought a Writ of Error, and assigned for Error, That whereas the said Writ of Account was brought against the said Defendant as Receiver of Monies, for to render Account, quando ad hoc requisitus fuerit, the said Writ aught to have been more special: But the opinion of the Court was, That the Writ in his generalty was holden good: And so it was adjudged in the Case of one Gomersal, (scil.) quod reddat ei rationabilem computum suum de tempore, quo fuit Receptor Denariorum ipsius A. Another Error was assigned, That the jury had assessed damages which ought not to be given in an Action upon Account: which see 2 R. 2. Acco. 45. and 2 H. 7. 13. But see the Book of Entries, foe. 22. In a Writ of Account against one, as Receivor to Account render, damages were given: For if my Bailiff, 1 Leon. 302. by employing of my Moneys, whereof he was the Receivor, might have procured to me profit and gain, but he neglects it, he shall be chargeable to me in right, and shall answer for it. And here in our case, damages shall be given: and afterwards, notwithstanding all objections made to the contrary, the judgement given before was affirmed. CLXI. Yates 's Case. Hill. 30 Eliz. In the King's-Bench. 3 Len. 231. A Writ of Error was brought by Yates and others upon a judgement given in a Writ of Partition; and it was assigned for Error, that the Writ of Partition was not sufficient; for it is there set forth, That the Plaintiffs insimul & pro indiviso tenent cum defendente, etc. and do not show, of what Estate, or whose inheritance: See F. N. B. 61. 5. and 62. a. insimul & pro indiviso tenent de haereditate quae fuit A. matris of the Plaintiff and the Defendant. 1 Cro. 759, 760. And yet see F. N. B. 62. A. A Writ of Partition betwixt strange persons, without naming haereditate in the Writ: And see also that a Partition of Lands in London, without showing of what Estate: Courtney and Polewheel's Case. Finch and Firrel's Case. L. Cheney and Bell's Case. See Register 76. 6 Eliz. in a Partition by Courtney against Polewheel, no Estate showed in the Writ: so betwixt Finch and Firrel, and betwixt Fry and Drake, 14 Eliz. Devon. 26 Eliz. betwixt the Lord Cheney and Bell: and Mich. 4 and 5 Ph. and Ma. Rot. 208. It was holden, That it is not necessary in such a Writ to show the Estate: and such also was the opinion of the Court in the principal Case: but Tenants in common aught to show it in the Count: And the judgement given was affirmed. CLXII. Phillips and Stone 's Case. Mich. 29 and 30 Eliz. In the King's-Bench. IN Debt upon an Obligation, the Defendant pleaded the Statute of 32 H. 6. upon which this special matter was found, That one J. S. had heretofore recovered against him 100 l. in an Action of Debt, and upon the Capias ad satisfaciend. he was taken and committed to the Plaintiff, who was Jailer, etc. to the Sheriff, and so being in Execution he escaped and afterwards he was retaken by the Plaintiff, and kept in prison; and so being in prison, made the Bond upon which the Action is brought: It was said by the Court, That if a Prisoner being in Execution, escapes with the permission of the Gaoler, the Execution is utterly gone and extinguished, and the Plaintiff, at whose Suit he was taken in Execution, shall never resort to him who escapes, but shall hold himself to the Gaoler for his remedy: but if such a Prisoner escapeth of his own wrong without the privity or consent of the Gaoler, the Gaoler may well take him again for his indemnity, until the Plaintiff hath determined his Election, whether he will have his remedy against the Gaoler, or that he will maintain his Execution: 13 H. 7. 1, and 2. But as unto the Statute of 23 H. 6. the Court was of Opinion, That posito that the party who escapes cannot be taken again; yet being taken, the Bond which is taken colore Officii, is within the said Statute, because the party was retaken colore Executionis, and so the Bond was void. CLXIII. Gering 's Case. Mich. 29 & 30 Eliz. In the King's Bench. IN Debt upon an Obligation, against one as Executor; 1 Len. 87. the Case was, That the Testator of A. by his Will, appointed certain lands, and named which should be sold by his Executor, and the moneys thereof coming, to be distributed betwixt his daughters, when they have accomplished the age of one and twenty years. The lands are sold, and if the moneys thereof being in the hand of the Executor, until the full age of the daughters shall be Assets to pay the debts of the Testator,, was the question; and it was the opinion of the whole Court, that the said moneys should not be Assets; for they said, that that money is limited to a special use: Quaere of this Case; For I have heard, that it was afterwards resolved in another Case, that the moneys in the like Case remaining in their hands should be Assets. CLXIV. Davies and Percy 's Case. Mich. 29 & 30 Eliz. In the Common Pleas. BEtween Margaret Davies and one Perce, the Case was, 2 Roll 284. Goldb. 58. That one Anth. Perce, upon speech of a marriage to be had betwixt the said Anthony, and the mother of Margaret, covenanted by Indenture with certain friends of the mother, to pay to all the daughters of the mother 20 l. a piece at their several ages of four and twenty years, and to perform the Covenant, was bound to the said friends in an Obligation. Anthony Pierce made his Will, and willed, that his Executors should pay to each of the daughters 20 l. at their several ages of four and twenty years, in discharge of the said Covenant, and died; Now the said Margaret sued the Executors in the Spiritual Court for the 20 l. bequeathed to her, and upon this matter, the Executors prayed a Prohibition: And by the Lord Anderson, a Prohibition will lie; for here is no Legacy, but the Will refers to the Covenant, and is in discharge of the Covenant: As if A. be indebted to B. in 20 l. And if A. by his Will willeth that his Executors shall pay to the said B. 20 l. in discharge of the said debt, the same is not any Legacy, but a Declaration that the intent of A. is, that the debt shall be paid. Periam, justice, was of the same opinion as the Lord Anderson; and Anderson said, If a Legacy be bequeathed to me, and the Executor covenants to pay me the said Legacy, and afterwards J. sueth the Executor in the Spiritual Court, he shall have a Prohibition; Quod caeteri Justiciarii negaverunt, See F. N. B. 44 Br. If the Testator by his Will charge his Executors to pay his debts and his creditors, they do not pay them, and the creditors sue them in the Spiritual Court, they shall not have a Prohibition, Vide 6. H. 3. Prohib. 17. which Anderson Vehementer negavit; and afterwards the justices looked and advised upon the Indenture, and found that the indenture and Obligation were made to the friends of the mother of the daughters, and not to the daughters themselves, to whom the Legacies were give and bequeathed; and therefore were of opinion, that a Prohibition did not lie. CLXV. Thorp and Tomson 's Case. Hill. 30 Eliz. In the Common Pleas. Rot. 336. IN Ejectione firmae, It was found by special Verdict, That one Thimblethorp was seized of the lands where, etc. and by Contract, sold the same to Thorp, but no assurance was yet made; and afterwards, Thorp before any assurance made, sold likewise the said lands to Tomson, and afterwards, Thimblethorp made assurance thereof to Tomson, and afterwards Tomson being seized, devised the Lands to his younger son, Dyer 376. by these words: I bequeath to R. my son, all the lands which I purchased of Thorp, whereas, in speaking the truth according to Law, he purchased them by immediate assurance of Thimblethorp, although he did contract with Thorp for the same; And the opinion of the whole Court was without argument either at Bar, or at the Bench; That the Devise was good; for in the repute of the people, they preseised of Thorp, for Tomson paid the moneys for the same to Thorp, and the Court commanded judgement to be entered accordingly: And afterwards Exception was taken to the Verdict, because it is not found by what service the land devised was holden, Socage, or Knight-service; nor that the Devisor is dead; and these were holden to be material Exceptions, and for that cause, the judgement was stayed, and afterwards the Verdict was rejected, and a Venire facias de novo awarded. CLXVI. Grove and Sparre 's Case. Hill. 30 Eliz. In the Common Pleas. AN Action of Trespass was brought by Grove against Sparre, Process continued until Sparre was outlawed; and now it was moved unto the Court, to avoid the Outlawry, That the original Writ, and all the judicial Process thereupon are directed Vicecom. Wigorn. and in the Filazar's Roll, in the Margin is written, Hereford, and in the body of the said Roll is written, Et praedictus Grove obtulit se quarto die post, Et Vicecomes modo mandat. quod praedictus Spar non est inventus, etc. Ideo praeceptum est Vicecom. etc. and at the Capias returned, it is entered in the Roll as before, Hereford: whereas the Capias is directed Vicecom. Wigorn. as of right it ought to be: and the Roll was perused by the Court, and it was, ut supra, and that without any suspicion of Rasure; for which the Court gave day to the Queen's Sergeants to advise themselves to maintain the Outlawry; and the Defendants Council prayed, That a Recordatur be made in what Estate the Roll now is, for doubt of amendment by way of Rasure, or otherwise; which was granted by the Court. CLXVII. Rushton 's Case. Mich. 33 Eliz. In the Exchequer. RUshton was indebted to the Queen in 200 marks, See this Case vouched in C. 4 part, in Palmer's Case. 3 Len. 204. upon which issued an Extent against him out of the Exchequer to levy the said sum to the Sheriff of Suffolk; and it was found by Inquisition, That Rushton 22 Junii, 22 Eliz. was possessed of a Lease for the term quorundam annorum adhuc venturorum; and the debt of the Queen did begin 12 Febr. 17 Eliz. Exception was taken to this Office, because that the term is not certainly found but generally quorundam annorum; and it was said by Coke, That the Office was good, notwithstanding that Exception, for the Queen is a stranger to the Lease, and therefore ought not to be forced to find the precise certainty; which see in Partridge's Case in Ploughed. The Defendant had made a Lease Pro termino quorundam annorum contra formam statuti: Also Rushton came not to the Lease by Contract, but by compulsary means, as by Execution, etc. And here we are not in the Case of pleading, but of an Office, where such precise form is not requisite: As if it be found by Office, that J. S. was seized in tail, without showing of whose gift the same was, it is good; so an Indictment, De morte cujusdam hominis ignoti, the same is good, but such Endictment taken before the Coronor, is not good: And that a Lease for years may be extended, see 21 Ass. 6. If a man be indebted to the Queen, being a Lessee for years, and afterwards before any Extent comes, sells his term, the same cannot be extended after. And here it appears, That this Lease was to begin at a day to come, and that the Lessee did enter before the day, by which he was a Disseisor; and so he said he had lost his term. Tenant for the life of another is disseised, and dieth, he remains a Disseisor, and the occupancy doth not qualify such disseisin: And afterwards the Inquisition for the incertainty aforesaid was holden void, and a new Commission was awarded. CLXVIII. Holland and Boin 's Case. Mich. 29 Eliz. In the Common Pleas. IN a Replevin by Thomas Holland against William Boin's, 3 Len. 175. 1 Len. 183. Ow. 138. who made Conusans, as Bailey to Thomas, Lord Howard, and shown, that the Prioress of the late dissolved Priory of Hollywell was seized of the Manor of Priors in the County of Hertford, and granted the same by words of Dedi & Concessi pro certa pecuniae summa, to Thomas Audley, Chancellor of England, and his Heirs, who entered and died seized, and that the said Manor, inter alia, descended to Mary, daughter and Heir of the said Thomas Audley, who entered, and also died seized, by force whereof the said Manor descended to the said Thomas Lord Howard, etc. and showed, that the said conveyance, by the prioress to Audley bore date 4 Novemb. 29 H. 8. and then enroled in the Chancery. The Plaintiff in Bar of the Avowry, showed, that after the making and enrolling of the said Conveyance, the said Prioress Leased the said land to Sir H. Parker for 99 years, and conveyed the said land to him, and shown farther, That the said Conveyance specified in the Conusans was primo deliberatum, 4 Nou. 31. H. 8. Absque hoc, that the said Prioress, the said 4 Novembris, 29 H. 8. dedit & concessit, the said Manor to the said Audley, upon which it was demurred in Law; and the Court was clear of opinion, That the averment of primo deliberatum, against a Deed enroled ought not to be reversed, for by the same reason it may be averred never delivered, and so upon the matter, Non est factum: And it was farther objected, That bargain and sale by a Corporation is not good; for a Corporation cannot be seized to another use, and the nature of such Conveyance is to take effect by way of use in the Bargainee, and after the Statute to draw the possession to the use; But the Court utterly rejected that Exception was dangerous, Note, Pasch. 30 Eliz. it was adjudged for the Plaintiff in the Replevin; (scil.) the Conveyance of the Prioress was not well pleaded; for it ought to be plead as a Bargain and Sale, and not as a grant: and Judgement was given accordingly. for such was the Conveyance of the greater part of the possessions of Monasteries: And by Shuttleworth Sergeant, Although such a Corporation cannot take an Estate to the use of another, yet they may charge their possessions with an use to another. CLXIX. Venable 's and Sergeant Harris 's Case. Mich. 28 & 29 Eliz. In the King's Bench. Queries. Hugh's R. 13. 3 Len. 185. 4 Len. 112. THE Case was, a Lease was made to A. and B. for their lives, the Remainder to Thomas Venables in tail, who 3 Eliz. was attainted of Felony; 23 Eliz. was a general pardon: Thomas Venables 24 Eliz. levied a Fine, and suffered a common Recovery to the use of Harris Serjeant. An Office is found, Harris traverseth the Office, and upon that there is a demurrer. Leke argued, That traverse doth not lie in this Case: 4 H. 7. 7. where the King is entitled by double matter of Record, the party shall not be admitted to traverse, nor to his Monstrans de Droit, but is put to his Petition, which see, 3 E. 4. 23. in the Case of the Earl of Northumberland, 3 Len. 75. where the Tenant of the King is attainted of Treason, and the same found by Office: See also 11 H. 4. in the Case of the Duke of Suffolk, and that is not helped by the Statute of 2 E. 6. cap. 8. For the words are untruly found by Office, but here the Office is true. By this Attainder, Thomas Venables is utterly disabled to do any Act; for by Bracton, a person attaint, shall forfeit Patriam, Regnum & Haereditatem suam: 11 H. 4. one was attainted of Felony, and before Office found, the King granted over his Lands: Also he is not helped by the general pardon; for before the general pardon, he had a special pardon, so as the general pardon non operatur. But the justices said, The forfeiture did remain until the general pardon. Harris, contrary; And he put the case of Sir James Ormond, 4 H. 7. 7. where the King is entitled by matter of Record, and the subject confesseth the King's title, and avoids it by matter of as high nature as that is for the King, Traverse in that case lieth: and if the King be entitled by double matter of Record, if the party doth avoid one of the said Records by another Record, he shall be admitted to his traverse; and so here we have the pardon, which is a Record, and that shall avoid the Record of the King: See 3 E. 4. 24. in the Earl of Northumberland's Case; and here the pardon hath purged the forfeiture, in respect of the offence: and he said, Tenant in tail being attainted of Felony, shall not lose his lands, but the profits only, for he hath his Estate by the Will of the Donor, and there is a confidence reposed in him: as in Walsingham's Case, he cannot grant his Estate over: and see Wrothe's Case; An annuity granted, pro Consilio impendendo cannot be granted over or forfeited, for there is confidence: And see Empson's Case, and Dyer 2. 29 Ass. 60. If the issue in tail be outlawed of Felony in the life of his father, and getteth his Charter of pardon in the life of his father, after the death of his father he may enter; but by Thorp, If the issue in tail getteth his Charter of pardon after the death of his father, than the King shall have the profits of the lands during the life of the issue: And the Case of Cardinal Pool was debated in the Parliament, Cardinal Pool's Case, 27 Eliz. That he being Dean of Exeter, was seized of Lands in the right of his Church, and was attainted of Treason: It was holden, That he should forfeit the profits of such Lands: But admit, that by this Attainder the Land be forfeited, yet the party hath the Freehold until Office found: See Nicols' Case on the Commentaries: and see also the Case of the Duchy in the first Commentaries. And here the Pardon hath dispensed with the Forfeiture. Tenant of the King alieneth in Mortmain, before Office found, the King pardons it, this is good. The Lord Poynings conveyed all his Lands to Sir Adrian Poynings, who was an Alien, and afterwards is made a Denizen, and the King pardons him, and releaseth unto him all his right in the said Lands without any words of Grant; and it was adjudged, the same shall bind the King. And he said, that he had found a good precedent, 14 H. 7. where a general pardon before seizure into the King's hands was allowed, contrary after seizure without words of Grant. See Br. 29 H. 8. Charter of Pardon 52. If a man be attainted of Felony, and the King pardons him all Felonies, & executiones eorundem, the same shall not serve for life and Land, if no Office be found, but it shall serve for the Goods without words of Restitution and Grant; for the King is entitled to them by Outlawry without Office, but the King is not entitled to the Lands until Office be found: See ibid. 33 H. 8. 71. The Heir intrudes, and before Office found the King pardons; now the Heir is discharged as well of the issues and profits, as of the Intrusion itself, and also of Livery: But a pardon given after Office is available for the Offence, but not for the issues and profits: And he cited the Case of Cole in the first Commentaries, where a pardon was granted Mesne betwixt the stroke and the death: See 35 H. 6. 1. 1 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case, 11 Eliz. Dyer 284, 285. Egerton, Solicitor to the contrary; This Traverse is not good; for he that traverseth, hath not made Title to himself as he ought, upon which the Queen may take Issue; for it is at the Election of the Queen to maintain her own Title, or traverse the Title of the party. At the Common Law, no Traverse lay but where the Livery might be sued; but that is helped by the Statute of 34 E. 3. cap. 14. but where the King is entitled by double matter of Record (as in our case he is) no Traverse is allowed until 2 E. 6. cap. 8. And in such case two things are requisite: 1. That the Office be untruly found: 2. That the party, who is to be admitted to his Traverse, have just Title or Interest of Estate of Freehold, etc. But in our case, The Office is confessed by the Traverse to be true, although that the Conveyance be not truly found: Also Harris, at the time of the Office found, had not just Title but an interest came unto him long time after the Office found: Also the Traverse is not good, for he traverseth the matter of the Conveyance, which is not traversable; for if the King hath Title, non refert quomodo, or by what Conveyance he hath it. As to the matter in Law, (scil.) Tenant in tail in Remainder is attainted of Felony, if the King during the life of Tenant in tail shall have the freehold? and he conceived that he should, for it shall not be in abeyance, and it cannot be in any other; for when he is attainted, he is dead as unto the King. The chief Lord cannot have it, for Tenant for life is alive, and also he in the Remainder in Fee, etc. the Donor shall not have it, for the Tenant in Remainder is not naturally dead, but civilly; and the Land cannot revert before the Tenant in tail be naturally dead without issue: but if there were any other in whom the Freehold might vest and remain, than the King should not have the Freehold, but only the profits. So if the Tenant be attainted, the Lord shall have the Lands presently; 3 E. 3. 4 E. 3. The Husband, seized in the right of his Wife, is attainted of Felony; the King shall have but the profits, for the Freehold vests in the Wife, and if the Lord entereth, the Wife shall have an Assize. And Tenant in tail may forfeit for his life, as he may grant for his life: See Old N. B. 99 If Tenant in tail, for life, dower, or by the courtesy, be attainted of Felony, the King shall have the Lands during their lives; and after their deceases, he in the Reversion shall sue unto the King by Petition, and shall have the Lands out of the King's hands: and there it is farther said, That the Lord by Escheat cannot have it, for the party attainted was not his very Tenant, nor he in the Reversion, for the term yet endures. But now it is to see, if the Freehold be in the King without Office? and he conceived and argued, that it was: Where the King is entitled to an Action, there the King ought to have an Office, and a Scire facias upon it: as where the King is entitled to a Cessavit, Action of Waste, etc. 14 H. 7. 21. where the Entry in case of a common person is necessary, there it is requisite that there be an Office for the King: As if a Villain of the King purchaseth Lands, or an Alien born, etc. so for a condition broken, Mortmain, etc. And in some cases, an Office is only necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey, as by Office: as if the King be to take by descent, or as the Case is here. And true it is, that a person attainted of Felony may during his Attainder purchase Lands, and yet he cannot hold it against the King: and it is clear, that by the Common Law in such cases, the Land was in the King, but not to grant, for the Statute of 18 H. 6. was an impediment to it: but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office: See Doughtie's Case, 26 Eliz. And in our Case, an Office is not necessary to entitle the King, but for explaining of his Title: and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office; so where the King's Tenant dieth without Heir; or Tenant in tail of the Gift of the King dieth without issue: See Br. Office before the Escheator 34. and see 13 H. 4. 270. A man is attainted of Treason, the King before Office grants his Lands and Goods. Things which lie in Grant, as Advowsons', Rents, Remainder, such things upon Attainder are in the King without Office. As to the general pardon of 23 Eliz. he said, That that doth not extend to this Case; and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen, so if the Queen had but a Right or Title only. Popham, Attorney General; By this Attainder the Estate of him in the Remainder in tail, accrueth unto the Queen for the life of him in the Remainder; for by our Law, Felony is punished by the death of the Offender, and the loss of his Goods and Lands for the examples of others, therefore nothing is left in the party: Tenant for life is attainted of Felony, the King pardoneth him his life, yet he shall have his Lands during his life, and he may dispose of the same for his life: And so is it of Tenant in tail, for he may forfeit all that which he hath, and that is an Estate for his life, which is a Freehold. If Lands be given to one and his Heirs for the term of the life of another, and the Donee be attainted of Felony, the King shall have the Land during the life of Cestuy que vie, for the Heir cannot have it, because the blood is corrupt, and there is not any occupancy in the case: for 17 E. 3. the justices would not accept of a Fine for the life of another, because there might be an Occupant in the case: But for a Fine of Land to one and his Heirs for the life of another, they would take a Fine, for there is no mischief of occupancy. Land is given to A. for life, the Remainder to B. for life, the Remainder to the right Heirs of A. who is attainted of Felony; B. dieth, now the King hath the Fee executed. And here in our Case, If the Tenant for life had been dead, no Praecipe had lain against him in the Remainder being in possession, but the party who hath right is to sue unto the King by Petition. 4 E. 3. If one seized of Lands in the right of his Wife for life be attainted, the King shall have exitus & proficua: but he conceived that Case not to be Law: For see F. N. B. 254 D. The Husband seized in the right of his Wife in Fee, is outlawed for Felony, the King seizeth, the Husband dieth; now shall issue forth a Diem clausit extremum, the words of which Writ in such case are, Quia A. cujus Terr. & Tenement. quae ipse tenuit de jure & haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar' in ipsum pro quadam Felonia unde indictatus fuit, etc. in Man. Domini H. patris nostri extiterunt, etc. therefore the King had not the issues only, but also the Lands: See to the same purpose the Register 292. b. Stamford's Placita Coronae, 186, 187. affirms, That Tenant in tail being attainted of Felony, shall forfeit his Lands during his life. And he said, that the Estate of Thomas Venables was in the King without Office not to grant, for that is restrained by the Statute of 18 H. 6. but it is in him before Office, so as he who hath right aught to sue to the King by Petition, if he will have his Land: yet he conceived, that before the Statute of 18 H. 6. the King might grant the Land before Office, as it appeareth by Thirning, 13 H. 4. 278. who was before the said Statute: So if the King's Tenant makes a Lease for years, the Remainder over to another in Fee, who dieth without Heir; the Remainder is in the King without Office, because a common person in such case cannot enter, but a claim is sufficient, and therefore it shall be in the King without Office. As to the pardon, he said, That it doth not extend to this Estate, for this is a Freehold, ergo, not within the pardon: As if the King's Tenant be attainted of Felony, and the King pardons him all offences, and all things which he may pardon, these words shall not go nor extend to Freeholds, but only unto personal matters, and such punishments and peins which do concern Chattels. But it may be objected, That by this pardon, Title of Quare Impedit, and Re-entries for Conditions broken are excepted; and therefore if they had not been excepted, they had been remitted by the pardon; and therefore this pardon shall extend to Inheritances and Freeholds: As to that, I say, That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons, and such Exceptions did begin 5 Eliz. And he said, he had been of Council in such Cases where it hath been taken, that such pardons did not extend to Freeholds: As an Abbot was disseised, and afterwards during the Disseisin the Abbey is dissolved; the King makes such pardon, the same doth not transfer the Right of the King, and in that Pardon are divers Exceptions of Goods and Chattels in many cases, and therefore it cannot be intended that the pardon doth extend to Freeholds. And see the said Act of pardon: The Queen grants all Goods, Chattels, Debts, Fines, Issues, Profits, Amercements, Forfeitures, Sums of Moneys; which word [Forfeiture] shall be intended of a personal Forfeiture, & non aliter, for it is coupled with things of such nature. And as to the Traverse, he said, It did not lie in this Case; for the Office is not untrue, but true in substance, although void in circumstance: And also the King here is entitled by double matter of Record, (scil.) the Attainder and the Office: and he said that the Statutes of 34 and 36 E. 3. which gave Traverse, are to be intended of Offices found virtute Officii, and not virtute Brevis, for then Efcheators were very troublesome: And the Statute of 2 E. 6. doth not give Traverse, but where the Office is untruly found; as if Tenant of the King be disseised, and the Disseisor be attainted; the Queen seizeth the Land: Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit, for the Office is true: But if I be Tenant of the King, and seized of Land accordingly, and it was found that J. S. was seized of my Land, and attainted, etc. whereas in truth he had not any thing in my Land, there Traverse lieth, for the Office is false; and so in our Case, for the Traverse it is at the Common Law: and it was true that Venables was seized. Coke to the contrary; and he said, That by the Attainder the Queen hath gained but a Chattel; and that notwithstanding this Forfeiture, if Venables had been in possession, a Praecipe should be brought against him: And where it hath been said by Mr. Attorney, That Writs set down in the Register are the best Expositors of our Law, the same is not so; for the Register saith, That Waste lieth notwithstanding a Mesn Remainder, which is not now Law, but it hath been clearly ruled to the contrary: and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the judgement of our Law; and the Writ of Diem clausit extremum is not to the contrary; for I confess, that in such case the Land shall be seized into the hands of the King, but the King shall not have but a Chattel therein: It hath been argued, It may be granted, Roll. Tit. Grant. 4 Len. 112. ac. Godb. 351. a. therefore it may be forfeited; Nego Consequentiam: for a man seized in the right of his Wife, may grant, but not forfeit: Guardian in Socage may grant, but not forfeit; the Husband may grant a term for years, which he hath in the right of his Wife, but he cannot forfeit it. A woman Inheretrix taketh a Husband, who afterwards is attainted of Felony, the King pardons him, they have issue, the Husband shall be Tenant by the courtesy, which proveth, that the King hath not the Freehold by that Attainder. Before the Statute of Westm. 2. Tenant in tail, post prolem suscitatam, might forfeit his Lands, but now the Statute hath so incorporated the Estate tail to the Tenant in tail, that it cannot be devested, even a Fine levied by him ipso jure nullus, although as to the possession it be a Discontinuance; and that is the reason wherefore Tenant in tail shall not be seized to another's use. See Stamford 190. The Husband seized in the right of his Wife is attainted of Felony, the King shall have the profits of the Lands of the Wife during the life of the Husband, etc. So if Tenant in tail be attainted of Felony, and that is but a Chattel in the Lands of the Wife, and also in the Lands of the Tenant in tail: and if the possessions of a Bishop be seized into the Queen's hands for a Contempt, in such case the Queen hath the possession, and not the profits only: the same Law of the Lands of Tenant in tail, or for life, being attainted of Felony: so of seizure for Alienation without licence, or of the possessions of Priors, Aliens. See Brook Reseiser 10. So where the Seizure is for Ideocy. And he said, That in the principal Case nothing is in the King until Office: and as to the Case of 13 H. 4. 6. he confessed the same; for at that time many, and amongst them Lawyers and justices, were attainted by Parliament, and so was Sir John Salisbury, whose Case it was; and their Lands by Act of Parliament given expressly to the King: and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony, his Lands remain in him during his life until the Entry of the Lord, and where the King is Lord until Office be found: but in the Case of a common person, after the death of the person attainted, they are in the Lord before Entry, and in the Case of the King before Office, for the mischief of abeyances. And see the Lord Lovels Case, 17 and 18 Eliz. 485, 486. Blow. where it is holden, That upon Attainder of Treason by Act of Parliament, the Lands were not in the King without Office in the life of the party attainted, upon the words of the Act, shall forfeit. See Stamford Prerogat. 54, 55. acc. He said, That this interest which came unto the King by this Attainder, is but a Chattel, and then it is remitted by the Pardon; and so he conceived, if it be a Freehold: For the words of the general Pardon are large and liberal, [Pardon and release all manner of Treasons, etc. and all other things, Causes, etc.] and here Forfeitures are pardoned; and this word [things] is a transcendent, etc. and although it be a general word, yet by the direction of the Act of general Pardon it ought to be beneficially expounded and extended, as if all things had been specially set down: Also the words are, [Pardon them and their Heirs,] therefore the Pardon extends to Inheritance, for otherwise there is no use of that: And he conceived, That by the first branch of this Act, that the same extends to Inheritances, and to acquit the Lands of all encumbrances, for every Offence not excepted, for there is the word [Heirs,] and the third branch concerns only Chattels, and that is by the word [Grant,] where the first is by words of acquittal: See 33 H. 8. br. Charter of Pardon 71. Tenant of the King dieth seized, the Heir intrudes, Office is found; by Pardon of Parliament all Intrusions are pardoned; in that case the Offence is pardoned, but not the issues and profits of the Lands; but by a Pardon before all is pardoned. But here in our case the Office is not void; for the Statute makes all Precepts, Commissions, etc. void, being awarded upon such forfeiture. See also in the second branch, Vexed or inquieted in Body, Goods, or Lands: and see also among the Exceptions, That persons standing indicted of wilful Murder, and Forfeiture of Goods, Lands, Tenements, grown by any offence by such person: By which he said, that if such Exception had not been, the Land of such person, if he had been attainted upon such Indictment, should be forfeited: as to the Traverse, he said, That because the Office is true, our Plea is in the nature of Monstrans de Droit, although it concludes with a Traverse: We vary from the Office in number of the persons, and in the day of Feoffment, and every circumstance in case of the King is to be traversed, and our Plea in substance confesseth and avoideth the Offence. Although that here the King be entitled by double matter of Record, (scil.) the Attainder and the Office: yet one of the said Records, (scil.) the Attainder, is discharged by another Record, (scil.) the Pardon, and then but one Record remains, (scil.) the Office, and therefore our Traverse well lieth. And he said, that by the common Law there was a Traverse; as where it was found by Office, that the Lessee of the King had committed Waste, or had cessed for two years; and that in such case the Lessee and Tenant, in an Action brought against them, may traverse the Offence; therefore there was a Traverse at the common Law, where the King was entitled by single matter of Record: So upon Office finding Alienation without Licence, there was a Traverse by the common Law: See Traverse in such case in the Case of William de Herlington, 43 Ass. 28. See Br. Traverse of Office 54. Petition is by the common Law, and Traverse by the Statute: Frowick in his Reading. See Stamf. Prerogat. 60. That Traverse in case of Goods was at the common Law, but for Lands by Office, by 34 E. 3. 14. for before the remedy was by Petition. See Co. 4. part. the Sadler's Case 55, 56. Traverse was at the common Law concerning Freehold and Inheritance, but that was in special Cases, (scil.) when by the Office the Land is not in the King's hands, nor the King by that is in possession, but only by the Office is entitled to an Action, and cannot make a Seizure without Suit, for there in a Scire facias brought by the King in the nature of such Action to which he is entitled, the party may appear to the Scire facias, and traverse the Office by the common Law. It was adjourned. CLXX. Scott and Scott 's Case. Mich. 29 Eliz. In the King's Bench. 1 Cro. 73. 3 Len. 225. 4 Len. 70. IN a Replevin, betwixt Scott and Scott, the Case was, George Scott, 2 H. 8. being Tenant in tail of certain lands, suffered a common Recovery to the use of his last Will; and 15 H. 8. made his Will, by which he did declare, That the Recoverors should make a good and favourable Lease to Hugh Scott his younger brother: and 25 H. 8. they make a Lease of the same land to the said Hugh for 199 years according to the Will of the said George Scott, rendering Rend, 11 l. 6 s. 8 d. payable at the Feast of the Annunciation and S. Michael, by equal portions, and that to the Recoverors, their Heirs and Assigns; and there was a Covenant, that after the death of the Recoverors, the said Rent should be paid to Cestuy que use, his Heirs and Assigns, any thing in the said Indenture notwithstanding. Proviso, That if the Less make his Heir male his Assignee of that term, that then he shall pay the said Rent to the Recoverors, their Heirs and Assigns, and the Lessee shall not pay the Rent to the Heirs of Cestuy que use, upon which a Distress is taken, and thereupon a Replevin brought. Drew argued for the Plaintiff: When a Condition is created, the Law saith, That it shall be taken and construed favourably in the behalf of him who is to perform it: As if one be bounden to appropriate such a Church to such a house before such a day at his own costs, and the Obligor grants a Pension out of the said Parsonage, and afterwards appropriates the said Church, it was holden that the Condition was well performed, 3 H. 7. 4. A Lease for years upon condition, to scour the Ditches, if the Lessee scoureth them once, it is well enough: And as to this word Proviso, It is to see, If here it be a word conditional: In some Cases, this word Pro, makes a Condition, as 45 E. 3. 8. Grant of a Ward, pro bono servitio, if the Grantee departeth out of his service, the Grant is void: So if an Annuity be granted unto a Physician pro consilio impendendo, the same is a Condition, 41 E. 3. 6. For the Grantor hath not means to compel the Grantee to give his Council; but in some Cases, this word Pro, doth not make a Condition: As if before the Statute of West. 3. Land was given pro homagio suo, there, if the Homage be not done, the Feoffor could not re-enter, but he ought to distrain. And I conceive, that in our Case, Proviso doth not make a Condition. 7 H. 6. 44. A Feoffment in Fee with Warranty, Proviso, that the Feoffee shall not vouch: So a Grant of a Rent-charge, Proviso, that the Grant shall not extend ad onerand. personam of the Grantor; for here the Proviso is rather an Exception than a Condition: A Lease for years without impeachment of Waste, Proviso, that he shall not do voluntary Waste, the same is a Qualification of the liberty for doing Waste. Grant of a Manor, Proviso, that it shall not extend to wood growing upon the Manor, the same is an Exception, not a Condition. See the Bishop of York's Case, 5 Eliz. Dyer 222. The said Bishop made a Lease for certain years of certain Lands, Proviso, quod tempore vacationis, the Rent shall be paid to the Chapter, It was holden that the Proviso was not a Condition. And here in this Case, the Will of George Scott was, That the Recoverors should make to the said Hugh, a favourable Lease, which cannot be, if it be a conditional Lease: Another point was; because the Rent is not well demanded; for he hath demanded the whole Rent of the year, whereas but half a years Rent was only due. Coke, contrary: where the Proviso is parcel of one sentence which contains a Covenant, or abridgeth the Covenant, there it shall not amount to a Condition, but to an Exception, as a Grant of a Rent-charge, Proviso, that he shall not charge the person, abridgeth the force of the Grant: so a Lease without impeachment of Waste, Proviso, that the Feoffee shall not do voluntary Waste, the same abridgeth the liberty; But in our Case, this Proviso makes a Condition, and not a Qualification of the sentence, or of any Covenant contained in the sentence, nor doth it participate altogether with the sentence, but stands substantively, for it was a full sentence before: A Feoffment in Fee with Warranty, Proviso, that when he is impleaded, he shall not vouch J. S. the same is a good Condition, for J. S. is a stranger: contrary, that he shall not vouch the Feoffor: And a Proviso never makes a Covenant, and therefore it shall be either a Condition, or void. And he said, That by the devise, Hugh Scott had a Lease without any Lease to be made by the Recoverors. As unto the demand of the whole Rent, where but half a years Rent was due, the same is good enough. And so was it adjudged in a Case betwixt Andrew's and the Lord Cromwell; for he is at his peril to pay the one moiety, and in as much as he denieth the whole, he denieth every part. It was adjourned. CLXXI Hawkins 's Case. Mich. 29 Eliz. In the King's-Bench. ONE Hawkins was seized of three Messages in Bury in his Demesit as of Fee, and had issue, Robert, Christian, and Joan; Postea 193. 1 Cro. 53. 3 Len. 180. and devised all his said Messages to his wife for life, the remainder of one of the said Messages to his son Robert and his heirs; the remainder of another of his said Messages to his daughter Christian and to her heirs, and the remainder of the third Message, to Joan and her heirs. And farther, by his Will devised, That if any of his said issues die without issue of his body, that then the other surviving shall have totam illam partem, etc. between them equally to be divided. The Devisor dieth, the wife of the Devisor dieth, Joan dieth, having issue, Robert dieth without issue, Christian entereth into all the house of Robert, and dieth, and her husband holds in as Tenant by the Courtesy. Coke, The surviving child shall have the whole, and the issue of Joan shall have nothing; and he said, That by this Devise, they have an Estate in tail, for the Fee doth not vest in any of them; for it is written, Who shall survive: But when one overlives, he shall have in Fee, for these words, totam illam partem, go to the whole Estate, as well as to the whole Land. I devise my Land wholly to one, he hath Fee thereby: And he said that the three Devisees have Fee-tail, and Fee expectant each severally as to the Message to him limited. Golding, contrary; Each hath an Estate tail in the house devised to him, and but an Estate for life, expectant upon the death of the other without issue, for there are no words by which it may appear what Estate he shall have by the survivorship. I grant the Case which Perkins denies, but Littleton affirms (scil.) A Devise to one of lands in perpetuum; for there the intent appeareth; But where there are not words of Inheritance, nor words amounting to so much, than it shall be but an Estate for life: And as to the words, totam partem illam, the same is all one as if he had said, partem illam without the word totam. And also he said, That where one only survives, no farther the Estate vests; for there aught to be two to take by the survivor; for the words are, Equally to be divided betwixt them, And then if it cannot accrue by survivor, than it shall descend; and if it had accrued to two by the survivor, they shall be thereof Tenants in common, not joint-tenants by reason of these words, Equally to be divided. Clench, justice, The words, Totam illam partem, go to the house, and not to the Estate in it: Shute, justice, accordingly: and he said, If both daughters had survived, they should have Fee in the house of Robert, but not by the Will, but by descent in coparcenary: Also when two are dead, the son and one daughter, than it cannot be divided, therefore the Will as to that is void, and then the common Law shall take place, and put the house to the issue of one daughter, and of the other daughter surviving. Gawdy, justice, Here is but an Estate for life in the survivor; It hath been objected, That then having but an Estate for life, the same Estate is drowned by the descent of the Fee-simple, so as now the Estate limited by the Will, is void; To which it may be answered, That although now, upon the matter it be void, yet, Ab initio, it was not so; for it became void by matter of later time, (scil.) by the descent of the Fee-simple; for if one of the daughters had died without issue before the death of Robert, so as the house of such daughter should have come to the said Robert and the other sister, there is no coparcenary, for the son hath all the Fee, and the moiety of the same is executed, and the other moiety expectant, and the sister hath a moiety for life, and then the Devise not void: Also here are not two survivors, so nothing is to be divided, and therefore the Law shall say, that the house of Robert is descended, (scil.) the Fee of it to the daughter of Christian and Joan, and so judgement was given against the husband, who claims to be Tenant by the Courtesy of the whole Message. CLXXII. Wye and Throgmorton 's Case. Pasc. 27 Eliz. In the Common Pleas. IN Debt upon a Bond by Wye, against Throgmorton, The Condition of the Obligation, was to perform Covenants in a pair of Indentures; And the Covenant wherein the breach was assigned was, That if R. W. Brother of the Plaintiff, should say, Make assurance of such a Manor to the Defendant, as the Council learned of the said Defendant should advise, Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void; The Defendant by advice of Council, demanded a Release with Warranty, etc. And by Periam and Windham, The same is not any Assurance, but a means to recover in value. Anderson, contrary: That it was a Collateral Warranty, etc. CLXXIII. Cropp and Hambleden 's Case. Hill. 28 Eliz. In the King's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden, upon the special Verdict, the Case was; That one Martin Hastings was seized of the lands, where, etc. in the right of his wife, for the life of the wife; and that they both did Lease unto the Defendant for years, rendering Rend, payable at the Feast of S. Michael, and the Feast of the Annunciation, etc. with clause of reentry, if the Rent be behind, by a Month after any of the said Feasts, and after the feast of S. Michael, 26 Eliz. and before the Month expired, the Lessee, the now Defendant, sent his servant unto the house of the Lessor, for to pay to him the Rent then due; the servant went unto the house of the Lessor, and there asked for him, to whom it was answered by one Mary Briggs, daughter of the wife of the Lessor, who there dwelled in the said house with her mother, that the Lessor was not at home, for which the said servant delivered the said Rent to the said Mary, requiring her to deliver the same over to the Lessor, upon his return to the house, in the name of his servant; Mary reserved the said Rent, and upon the return of the Lessor, at his house, told him all the matter aforesaid, and that the servant of the Lessor, the Defendant, had required her to tender the said Rent to the Lessor, in the name of the Defendant, and thereupon offered and tendered to him the said Rent, and the Lessor refused it. And the jury found, That the third half year before the tender mentioned before, the Lessor commanded the said Mary to receive the Rent then due, who did accordingly, and that the next half year then following, the said Mary did receive the said Rent, without commandment of the Lessor, but after the Lessor agreed unto it, and that the immediate half year before this tender in question, the Defendant paid the Rent then due, to the Lessor himself, who received it, And it was the opinion of Wray, chief justice, that this tender was good, and it is not like unto the case of an Obligation; for there the Obligee cannot have an Action of Debt before the last day: but here the Lessor might have distrained, or have had an Action of Debt before the Month expired, and so the Lessor is bound by this tender; and by Gawdy, justice, This tender cannot be said a tender by a stranger, for here Mary came in privity of the servant of the Lessee, and as it is found by Verdict, Mary tendered it to the Lessor, as being requested by the servant of the Lessee: And afterwards, upon consideration had betwixt the justices themselves; the justices, viz. Clench, Gawdy and Wray, (for Shute was then sick) it was clearly resolved against the Plaintiff, and that the said tender, as it is found in the Verdict, is a good and sufficient tender; and the Lord Wray delivered the reason, as before, and farther said, That if the said Rent had been reserved payable at the feasts aforesaid, or within a Month after each of them, there the tender as above, had not been good, nor should bind the Lessor; for in such case the Lessor could not distrain, or have an Action of Debt for the said Rend before the Month expired. And this is a case of extremity, and deserves no favour; and here is no mischief to the Lessor, for he might have had his Rent in due time if he would, and his captious refusal shall not avail him; And judgement was given accordingly. CLXXIV. Bostock and Covert 's Case. Trin. 33 Eliz. In the Common-Pleas. BOstock and his Wife brought a Writ of Dower against Covert, son and heir of her former Husband, who pleaded, That the Husband of the Demandant was seized of Lands, amounting to the number of 300 Acres; and held the same by Knights-service, and died seized, after whose death, by virtue of the Statute of 34 and 32 H. 8. he entered into 100 Acres of the said Lands, as the third part of the said Lands descended, and held the same in severalty, being the third part of the clear yearly value of the whole discharged of a Dower; and that the Wife ought to have all her Dower out of the two parts devised. And Anderson said, That the Plea was not good; for the heir who will take advantage of the Statute in that point, aught to enter generally as Tenant in common with the Devisee, and then in a Writ of Dower it is a good Plea: so if after his entry as Tenant in common Partition be made betwixt him and the Devisee, such a Plea is good; but here he hath entered severally into a third part, distinct from the residue, and so hath ousted the Devisee of a third part severally; for which cause he cannot have advantage of this Plea: To which the rest of the justices, Non contradixerunt. CLXXV. Sir John Southwel 's Case. Pasch. 37 Eliz. In the Exchequer. 3 Len. 147. SIR John Southwel of the County of Lancaster, 7 Julii, 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs, upon condition, that they should find him and his Wife, and so many persons in his house, etc. prefer his Daughters in marriage, pay his debts, etc. And if there fell out at the years end upon account made by the Feoffees any surplusage, that then at the end of every such year, they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands; with clause of revocation, etc. Afterwards, the said Conveyance being in force, came the Statute of 23 Eliz. concerning Recusants; upon which Statute, the said Southwel is now indicted; and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster, to inquire of the Lands of the said Southwel, although against the said Conveyance it was given in Evidence, That after the said Conveyance, the said Sir John Southwel had granted Trees from off the said Lands, and had received Fines and Incomes for Leases, etc. yet the jurors charged to inquire, would not find that the said Sir John Southwel had any Lands, etc. And by special command from the Queen, it was referred out of the Exchequer, to all the judges of England, If the Lands of the said Sir John Southwel conveyed as aforesaid, were subject to the said Statute, and the penalties thereof. And upon a great deliberation, it was by them all resolved and agreed, That notwithstanding the said Conveyance, the said Lands were liable to the said Statute. And as to the jurors, who against the Evidence given to them for the Queen, gave their Verdict (ut supra) Process was awarded against them out of the Court of Exchequer, for to appear before the Lord Treasurer and the Barons. And for their said contempt, they were committed to the Fleet, and each of them fined 50 l. CLXXVI. Moor and Savil 's Case. Trin. 27 Eliz. In the Exchequer. IN an Ejectione firmae, by Moor against Savil, the Case was, That Tenant in tail leased the Land to the father, mother and son for their lives, by Indenture, in which it was comprehended, That forasmuch as the Lessor is but Tenant in tail, and so cannot by Law limit these Estates by way of Remainder, but jointly in possession; and his intent was, That because this Lease was procured and obtained at the special suit, and costs and charges of the father, That the said son should suffer his father, and after him his mother, to take the profits of the said Lands demised, and to occupy and hold the said Lands to their only profit without interruption of the said son, notwithstanding his joint Estate in possession with them, Provisum igitur est, That if the said son shall challenge, claim, demand or take any profits of the Lands so demised, or enter into the same, during the life of his said father or mother, That then the Estate to him limited by the said Indenture should cease, and be utterly void. And it was the clear opinion of the whole Court, That this Condition and Proviso was utterly void, for it is contrary to the Estate limited before; as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years, Proviso, that you shall not occupy the same the two first years, the same Proviso is void and contrary, and repugnant to the Estate. CLXXVII. Lord Cromwell and Townsend 's Case. Mich. 28 Eliz. In the Star-Chamber. HEnry Lord Cromwell, exhibited a Bill in the Star-Chamber, against Roger Townsend, Esquire, for that the said Roger Townsend, in an Action betwixt James Taverner Plaintiff, and James Cromwell Farmor, of the said Lord Cromwell Defendant, in Trespass, in the favour and unlawful maintenance of the said Taverner, did procure a partial jury to be returned. And upon the hearing of the Cause, the matter given in Evidence was, That the said Taverner was a Copiholder of the said Lord Cromwell, and that the said Lord Cromwell, pretending that the said Taverner had forfeited his Copyhold, caused the said James Cromwell to make an Entry, in the right of the said Lord, upon the said Taverner; upon which Entry, Taverner brought an Action of Trespass against the said James Cromwell, in which Action the parties were at Issue upon the forfeiture. And before any Venire facias issued forth, Taverner hearing that one Steward, who was Bailiff of the Franchize, under the Earl of Arundel, and who ought to make the Panel, etc. was purposed to have made the said Panel not duly; viz. to return therein, great Gentlemen of the County, who were Lords of Manors, in favour of the said Lord Cromwell, went unto the said Roger Townsend, who was then one of the principal servants and agents of the said Earl, and shown to him, that if those great persons and Lords of Manors be returned for the trial of that Issue, peradventure they would not so easily appear for the expedition of the parties, as people of lesser 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; where, upon a conference with the said Steward for the making of an indifferent Panel, and showing to him, the making of the said Panel was not convenient, or any equal course to return Knights, Esquires or Lords of Manors, but rather such sufficient persons, for the greater expedition of justice, and indifferency of the trial; And afterwards the said Taverner exhibited a Petition, showing all the special matter, and praying him to give Order for the making of an indifferent Panel for the trial of that Cause, which Petition was delivered to the said Earl by the said Townsend, in the name of the said Taverner. Upon which the Earl did refer the said matter to three of his chiefest agents and Counselors, i. Dicksey, Townsend and Carrel, and delivered to them the Book of Freeholders within the said Franchise, 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 this intermeddling of Townsend with this matter, as abovesaid, etc. especially his conference with the Bailiff, be maintenance or not, was the Question. And by the Lord Anderson and the Lord Wray, chief justices, It was delivered for Law, That because the said Townsend was in manner a servant of the said Earl, who had return of Writs, and one of his principal Counselors and agents, and hearing, Ex insinuatione, of the said Taverner, the misdemeanour of the Bailiff of his Lord could not do better, than to show to the Bailiff his duty, for it concerned the honour of his Lord, and also his Inheritance in the Franchise; But if the said Townsend had been a mere stranger to the said Earl, so as no such privity had been betwixt them, it had been clearly maintenance in Townsend; as it was lately adjudged in this Court, in the Case of one Gifford; Gifford's Case. where the parties being at Issue, and a Venire facias was 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 the Cause according to his Conscience; and that was adjudged Maintenance. And afterwards, upon the full hearing of the cause, the said Townsend, by the sentence of the said Court, was acquitted of every Maintenance, with great allowance and approbation of many Lords of the Council there present: Bromley Cancellario tantum exclamante. CLXXVIII. Sir Moil Finch 's Case. 33 Eliz. In the Exchequer. 2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215. THE Case was this; The King and Queen, Philip and Mary, leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation; Proviso, that if the Rent be behind, and not paid by the space of forty days after any of the Feasts aforesaid, that the Lease shall cease and be void. At Mich. 9 Eliz. the Rent was not paid according to the Proviso, but a Month after the said forty days it was paid, and Acquittance given for it; and so the Rents due after unto 30 Eliz. were duly paid, and Acquittances given for the same. The Queen gave and granted the Reversion in Fee to Sir Thomas Henage, etc. and after it was found by Office that the Rent was arrear, ut supra: Sir Thomas Henage entered, and leased for years to Sir Moil Finch, who being ejected, brought a Quo minus in the nature of an Ejectione Firmae, etc. It was argued by Coke, That this Lease upon the matter aforesaid is avoidable by the Patentee, and that without Office; for the conclusion of the Proviso is not, that the Queen shall re-enter, but that the Lease shall cease and be void: and the Queen is not driven to demand her Rent, as in such case a Subject is tied. And he compared it to the Case of a common person; If a common person leaseth for years, upon condition, that if the Lessee doth not build upon the Land demised a House within a year after, that the Lease shall be void, and afterwards grants the Reversion to a stranger: the Grantee shall have advantage of this Condition, be it broken before or after the Grant; for the Lease in such case is void, not only voidable; and the reason is, because the Condition is collateral: which see 11 H. 7. 17. A Lease for years is made upon Condition, that if the Lessee doth not go to Rome before such a day, that the Lease shall be void; the Lessor grants the Reversion over, the Lessee attorns, and doth not go to Rome within the time appointed, the Grantee may re-enter; contrary, if the conclusion of the Condition had been by way of reentry, for than it should run in privity by the Common Law: But where a Lease with such Condition was made for life, with this conclusion of the Condition, that the Lease shall be void, the Grantee shall not take advantage of that by the Common Law, for there the Estate is not void until reentry, for there is a Freehold which ought to be avoided by Entry: But in our Case the Condition is upon the matter collateral, for no demand is requisite to take advantage of the Condition. And he said it is a general Rule, where in the Case of a common person an Estate may be devested without Entry, there in the Case of the Queen there needs not any Office; but here in our Case, if it had been a Case of a common person, the Estate should be devested without Entry, therefore in the Case of the Queen without Office: See Stamford for the Major Proposition 55. but it doth not vest to have Trespass before Entry: and he vouched the Case of Browning and Beston, Blow 136. where such Lease after such Condition broken, is merely void and dissolved. And he said, That it was the Opinion of the justices of the Common Pleas, now late, That by a Release to such Lessee, after the condition broken, nihil operatur; for after the Condition broken he is but Tenant at sufferance; and a Lease for years, being but a , may begin without ceremony, and end without ceremony: 2 H. 7. 8. If the King make a Lease for years, with clause of Reentry for not payment of the Rent, although the Rent be behind, yet the King shall not re-enter before Office found; and there ought to be a Seizure, for the Lease is not void by the nonpayment of the Rent, but only voidable: but if the Lease be void for not payment, as in our case it is, to what purpose shall an Office be? for by the mere contract the Lease ceaseth, without reentry, or without Office: But admit that the Lease shall not cease without Office, and before Office the Queen grants the Reversion over, yet an Office found after the Grant shall avoid the Lease as well as if it had been found before the Grant. A Lease is made upon condition, that if the Lessor build a House upon the Land leased, and pay to the Lessee 20 l. that then the Lease shall be void; the Lessor builds the House, and afterwards grants the Reversion, the Grantee pays the 20 l. now the Lease is void, although the Condition be partly performed in the time of the Lessor, and partly in the time of the Grantee. So here, although the Grant of the Queen be Mesn between the nonpayment of the Rent, and the Office; for the Queen is not entitled by the Office to the Land, but by the Condition broken, and the Office is only to inform the Queen of her Title; and when the Office is once found, it shall relate unto the time of the Condition broken, and shall be of such force as if than it had been found: H. 3. H. 7. f. 3. Cro. 221. and here in our case an Office was necessary for to entitle the Queen to the mean profits due betwixt the Rend arrear, and the Grant of the Queen, with which the Queen by her Grant hath not dispensed; and without Office he could not have them; for the arrearages of the Rent do not pass to the Patentee, no more than if the Queen be seized of an Advowson, and the Church become void, if the Queen Grant the Advowson unto another, the avoidance shall not pass. The King seized of a Rent which is arrear, grants the said Rent, the arrearages shall not pass: So here of the mean profits, for they are flowers fallen from the stalk, etc. Godfrey contrary; and he said, That the Lease is in being not impeached by the Condition, or the Office: and he said, That notwithstanding that the words of the Lease are, That the Lease shall be void, yet before that an Office be found, the Lease shall not be avoided: In all cases where the Queen is entitled to any thing, or to defeat the Estate of another, an Office is necessary; and that ground is taken in the case of the Lord Berkley, Blow. Com. 229. by Brown, therefore here, it ought to be found by Office: See also the case of the Bishop of Chichester, Fitz. Abridg. Forfeiture 18. 46 E. 3. The Bishop leased for life certain Lands given by the Progenitors of the King, as parcel of the Barony of the Bishopric, rendering 30 l Rent; and afterwards, by assent of the Dean and Chapter, released a great part of the said Rent; the Lease and the Rent ought to be found by Office. So an Alienation in Mortmain ought to be found by Office, because the interest of another is to be defeated: So where the King's Tenant ceaseth, etc. the Villain of the King purchaseth Lands, or but a Lease for years: So where the King is but to have annum, diem & vastum, Waste committed by the Committee of the King: Lessee of the King for years makes a Feoffment in Fee; in all these cases the King, without Office, shall not be entitled. The same Law is in case of a Condition broken; which see 2 H. 7. 8. Plow. 213. Frowick in his Reading puts this case: A Subject leaseth for years upon condition, which is afterwards broken, and afterwards the Lessor becomes King, here needs no Office, for at the time of the breach of the Condition the Lessor was not King. Forbisher and Bunny's Case. The Case betwixt Sir Martin Forbisher and one Bunny was, that the Queen made a Lease of Duchy Land upon Condition, which was broken: It was holden, that here there needs not any Office, for the Queen had those Lands severed from the Crown by Parliament, and they passed by the Duchy Seal by Livery, and attornment of the Tenants: The Queen leaseth for years, Proviso, that the Lessee shall not alien; such alienation against such a Condition ought to be found by Office: and therefore at this day, where a Forfeiture is given to the King, etc. by Statute, the words are, That the King shall be seized without Office: And as to the Relation of an Office, he said, That an Office may have a Relation as to mean profits, but not as to vest the interest from the time of the Title accrued. And although that in the Grant of the Queen to Sir Thomas Henage there be these words, Non obstante, the not finding any Office, yet in this case an Office is necessary, for the Queen cannot dispense with the Law, so to alter or change the Law, as to make Lands in Borough-English descendable at the common Law: So if the King make a Lease for years, with clause of reentry, and afterwards grants the Reversion over to a Subject; and farther grants, that if the Rent be behind, that the Lessor may re-enter without demand; yet the Grantee ought to demand the Rent. And, as our case is here, there needs not any Office to entitle the Queen to the Mean profits; for although that the Rent was not paid at the day, yet it was paid after, and all Rent due afterwards, and Acquittances given for the same; which matter we have specially pleaded to the intent aforesaid, upon which the other side have demurred, and thereby have confessed it, etc. But this Office doth not give any interest to the Queen in the thing leased, for she hath granted them over before, by which she hath disabled herself to take advantage of the Condition aforesaid, for she hath surceased her time: 8 H. 5. Traverse 47. Tenant for life forfeits his Estate, and before the King seizeth, The Tenant for life dieth, he in the Reversion may enter, and the King shall not seize, for the King hath surceased his time. And if the Queen should have advantage of this Condition, she should avoid her own Grant, which should be a great inconvenience; The Queen leaseth for years, Proviso, that the Lessee shall not do Waste; the Queen grants over the Reversion after Waste done, Office is found, the Queen gains nothing by it. It was agreed in the Case betwixt Knight and Beech, 28 Eliz. That the Grant of the Queen Mesn between the award of the Commission, and the return of it was good; for the Title of the Queen appeareth of Record, although that the Commission was not returned before the Grant made: And if an Office should relate unto the time of the Condition broken, it should be in vain to argue that point: for in the said case it was holden a Record, when the jurors had put their Seals to it, before that it be enroled: The acceptance of the Rent, and the Acquittances thereof are pleaded, 1. To prove, that there is no cause to find an Office in this case, for the Queen is answered the Mean profits: 2. To prove, that the Queen hath waved and refused to take the benefit of the Condition, but not to conclude the Queen, and then you cannot force her to take the benefit of the Condition: As the King, Lord, and Tenant, the Tenant dieth, his Heir within age, the King accepteth of the Services of the Heir, and afterwards grants over the signory, after Office is found, the King shall not have the Wardship, etc. At another day it was argued by Popham, Attorney General, for the Plaintiff; and he said, That upon not payment of the Rent, the Lease is ipso facto void, without any Office found thereof, and that by reason of these words, [shall not be void;] for he said, it is not a Condition, but rather a limitation: As if the King make a Lease to three for eighty years, si tam diu vixerint, one of them dieth, the Lease is determined without Office: So a Lease made vy the Queen for years, so long as the Lessee shall pay the Rent reserved, or so long as the Lessee shall there inhabit: In these cases, upon a Lease made by a common person, the Lessor before Entry might grant over, and the Grantee shall have advantage of it, for it is a limitation, and by the limitation the Lease is determined before the Grant; contrary, if it had been by words of reentry. A Lease for sixty years, Proviso, that if the Lessee shall die within the term, that the Lease shall cease; the Lessor grants the Reversion over, the Grantee shall take advantage thereof by the common Law: See the Case 11 H. 7. 17. it is a limitation, and not a Condition. And he said, in this case an Office is necessary, not to avoid the Lease, for that was void before; nor to punish the Lessee as a Trespassor, or to fine him for the continuance of his wrongful possession; but to make him responsable as an Accountant. In the Lease of a common person, where the clause is, That the Lease shall cease; If after the Rent behind, the Lessee continueth his possession, yet the Lessor shall not punish the Lessee as a Trespassor before his Entry, for the Lessee by his continuance is but Tenant at sufferance, for his first Entry was lawful; And he agreed the Books, 14 H. 8. and 2 H. 7. That such advantages that a common person cannot have without Entry, the Queen cannot have without Office: But a common person before Entry cannot punish another by way of Trespass, therefore neither the Queen, without Office, shall punish one as an Intruder: And as to the Case, now lately adjudged betwixt Knight and Beech, the same doth not extend to our Case; Knight and Beech's case. for there an Office was requisite before the Grant of the Queen, because the per-close of the Condition was, That the Prior should re-enter: and it is very clear, That Chattels vest in the Queen without Office. And in this Case an Office is necessary for two purposes: 1. To make the Grant good: 2. To make the Occupier accountable for the Mean profits, and to give recompense, which the Queen is not enabled unto without Office. And here the Patentee shall have advantage of the cesser of this Lease: For, 1. He hath the Inheritance lawfully: and 2. The Lease is determined. If there were no Non obstante in the Letters Patents, the said Lease ought to have been recited, if it had not been determined; and if it be determined (as this case is) it ought to be recited, if there were not a Non obstante; for non constat to the Queen, if it be determined or not: And he said, That Leases which are of Record, are to be recited in Patents of the King, but not those which are not of Record, for Leases on Record may be easily found, but contrary of Leases in Fait: but in our case all is helped by the Non obstante; for the words of the Letters Patents are, Non obstante, That no office be thereof found, misrecital or non-recital of the former Leases, etc. It hath been objected, That because that the Law of the Land is, That in Grants of the King, all former Estates ought to be recited, the Non obstante of the Queen shall not help it: To that he said, That where the Law makes for the Queen, there the Queen for a particular respect may dispense with the Law. If the Queen be deceived by the not recital, that makes the Letters Patents naught; but if the Queen be not deceived by the not recital, the same shall not hurt. And it is clear, That the Queen may dispense with a Statute Law, although perhaps not with the common Law; The Queen grants upon suggestion, if the suggestion be false, the Patent is void, because the Queen is deceived in her Grant: and if the suggestion rest in Articles, and some of the Articles be false, the Patent for that is void: but if in the Patent such clause be, That be the suggestion true or false, the Patent shall be good: If the King seized of a Manor, to which an Advowson is appendent, grant the Manor, cum pertinentii●, the Advowson shall not pass: But if the Grant be in tam amplis modo & forma, etc. prout ipse Rex tenuit, the Advowson shall pass. And he said, That the Office here is not necessary to determine the Lease, but to enable the Queen to punish the Lessee for the continuance of his possession: And if the conclusion of the Condition had been by way of reentry for nonpayment of the Rent, and after the Rent is behind, and afterwards the Queen accepts the Rent due after, the Queen is not bounden by that, but upon an Office found she shall avoid the Lease. Drew, Serjeant, contrary; and he said, That here is a condition, but not a limitation; for here is the natural word of a Condition, (scil.) Proviso. Some Cases put by Popham are Conditions, and not limitations: As a Lease for years, Proviso, that if the Lessee die within the term, that then the Lease shall be void, the same is a Condition: And in many Cases many words (less apt than these in our Case) shall make a Condition: As a Feoffment, dummodo solvat, etc. And he said, That without an Office the Lease is not void: See 35 H. 6. 57 The King giveth to Religious use certain Lands, ad effectum, to find a certain number of Monks, to hold in Frankalmoign: the King in that case cannot have Cessavit, for the Services are not certain; but if it be found by Office, that they have not their number, or do not make their Prayers, the King shall cease; by Br. Tit. Offic. 4. And he said, that this was often done in the time of Hang Henry the eighth; Lands given, Habend. pro erectione Collegii Cardinalis Eborum, etc. Where the King is to have Lands but as a pledge, as for an Alienation without licence, Office ought to be found of such Alienation: So of a Feoffment made to an Alien; otherwise it is in case of necessity, because the Freehold cannot be in abeyance: Tenant of the King is attainted of Treason before 33 H. 8. the King shall ha●●●●e Land in point of common Escheat until Office be found, and afterwards by force of the Attainder. So if the Tenant of a Subject be attainted of Treason before Office found, the Land shall be in the Lord, but after Office it shall be in the King: 7 H. 4. If the King's Tenant dieth, his Heir within age, the King may seize the Body, and grant it over without Office, but not the Lands: See for the same 5 E. 6. Br. Office 55. in the Case of Charles Brandon, 35 E. 3. Villainage 22. The Villain of the King purchaseth Goods and Chattels, the property of them is in the King before Office or seizure, but in the case of lands he ought to seize: If this had been the case of a common person, the Lease should not be avoided without demand, therefore neither in the Case of the King without Office: For as the Lease itself was made by matter of Record, so it ought to be avoided by matter of Record, otherwise it shall not be taken void in Law, notwithstanding that the words are, That the lease shall be void. By the Statute of 11 H. 7. Alienations and Discontinuances by Women are made void, the same ought not to be holden altogether void as betwixt such Women and the Alienee, but only betwixt the Woman and the Heir, the Statute of 1 Eliz. enacts, That all Leases made by a Bishop above the term of twenty one years, shall be void; the same shall not be construed to be void, but only as to the Successor, for it shall bind the Lessor himself, as it was adjudged 5 Eliz. in the Case of the Bishop of Bath. As unto the Office here in our case, the same shall not enure to avoid the Lease, but only to enable the Queen to punish the party for the Mean profits after the breaking of the Condition: But in our case, nothing is due to the Queen for the Mean profits, for we have showed the payment of all the Rents, and the Arrearages thereof, after the breach of the Condition, and before the Grant of the King; and therefore this Office, being for no use, shall be void, unless it had been found, that the Land was of more yearly value than the Rent, etc. As in the case of common experience of Chantries, the Lands shall not be intended to be of greater value than the Rent to be paid out of it, if not that it be found by Office: When the Queen hath after received the Rent, and granted over the Reversion, now the Forfeiture is purged, not by way of conclusion, but it amounts to as much as if the Queen had said, That she would not take benefit of it: 4 H. 6. Champernoun's Case: The King, by taking in Ward of the Heir of the Donee, hath waved the Heir of the Donor: See Blow. in the Lord Barkley's Case, 3 Eliz. 237. and F. N. B. 143. And here in our Case, when the Queen grants over the Reversion, here the whole use of an Office is gone; for no Office shall be found for the benefit of a Subject: and as to the Queen, no benefit shall accrue unto her by such Office, for if she by such Office shall be entitled to the possession, she should avoid her own Grant of the Reversion; for she ought to have as great an Estate by the breach of the Condition, as she had at the time of the Condition: And in this Case the Office comes too late for the Queen, etc. as in the Lord Lovels Case, Plow. 18 Eliz. 482. A Lease for years is made unto an Alien, upon condition, that if the Alien pay such a sum of Money to the Lessor at any time during the Lease, that he shall have Fee; the Alien is made a Denizen, the Money is paid, and all that is found by Office: The Queen shall not have the Fee, for at the time of the vesting of the Fee the Less was Denizen; and the Office shall not relate to the time when the Fee vests, and no farther, but to avoid encumbrances: and so in such Case the Office comes too late. And if the King's Villain purchaseth Lands, and the King make him free, and afterwards Office is found, the same shall not entitle the King, but the Villain manumitted shall hold the Land: So in our Case, the Queen after this Grant shall not take the benefit of this Office, or breach of the Condition found by it. And afterwards, Manwood, chief Baron, gave order, That those who do argue after, shall speak but to two points: 1. Where the Queen Leases for years, rendering Rend payable at the Receipt at West. in which Lease there is a Proviso, That if the Rent be behind, the Lease shall be void, If now the Rent not being paid, the Lease shall be void without any Office? 2. To what effect an Office now shall be, being found after the Queen hath granted the Inheritance over. At another day, Owen, Serjeant, argued to the contrary; and he said, the Lease is void without any Office: for as a Lease for years may be made by contract, so it may be avoided by words of contract, otherwise it is of Freehold; So that a Lease shall be avoided without entry, 6 E. 6. 137, 138. Blow. Browning and Beston's Case; Offices are of two sorts: First, entituling the Queen, as purchase of an Alien, purchase of Villain, alienation in Mortmain; and Offices informing the Queen, where she hath interest in the Land before, as in our Case here: Admit that the Office was necessary to find the breach of the Condition; the Patentee shall take the benefit of it: for being found by Office, that the Queen hath made such a Lease with condition to be void for nonpayment of Rent, and that at such a day the Rent was behind, now, being of Record, every Subject shall take advantage of it: As where a Husband makes a Feoffment in Fee upon condition, of the Land of his Wife, and dieth; If the Heir enter for the Condition broken, now may the Wife enter upon him; for now the discontinuance is avoided: See 11 H. 7. 17. Where the Grantee of the Reversion shall take advantage of a condition, ut supra, concluding, That the Lease shall be void: And see 136. Ploughed. Browning and Beston's Case. And although after the default of payment, the Rent due afterwards was accepted, yet that shall not conclude the Queen; for this acceptance is not under the great Seal, but only done by the Office: Also the Lease being void, for the nonpayment, cannot be made good by acceptance afterwards. Atkinson, contrary, Although that the Lease be void, de facto, yet until it appeareth to the Court, the Court cannot say it is void, or not void: therefore Office is necessary to ascertain the Court: The Queen is a body Politic, and the chief body Politic above others, because she is the Maker, Author and Creator of all other Corporations; and that is the reason, that the King cannot speak without writing; and this is the most solemn writing: i. Writing of Record; So she cannot take but by Record: And in our Case, it doth not appear by any writing of Record, the Rent was behind; and it is agreeable to the Majesty of a King to do nothing without matter of Record; which see 4 Eliz. in the case of the Duchy: And he said there is no difference betwixt the Case in 2 H. 7. and our Case: In each Case it is a Lease for years, Rend reserved, in this only differing, that there is a clause of reentry; and here the conclusion of the Condition is that the Lease shall be void; but in both Cases, none can say that the Rent is behind, until it be found by Office, therefore none can say, that the Lease is void, until Office found: See by Thorp, 35 E. 3. Chattels personals of the King's Villains, are in the King without office, for such things may be lost or worn, contrary of Chattels Reals, as a Lease for years; for Land cannot but continue: and such things which may be in the King without writing, he may grant without writing, as a chain of Gold, or a Horse, Deodands, Felons goods, Wreck, etc. vest without Office, because Chattels personals: See 20 E. 4. 11. contrary, when they are Chattels reals, and permanent; for there an Office is necessary: In the Case of year, day and waste, an Office ought to be found, Ergo, à multo fortiori, in case of a Lease for years, which is a greater interest, etc. 49 E. 3. 11. There is a general Rule, Quo modo quodque ligatur, eo modo dissolvitur: That which passeth by Livery ought to be reduced by reentry, that which gins by Record, aught to be determined by Record; and here in our Case, the Land cannot departed from the King without Record, therefore it shall not revert without Record; although that the breach of the condition be but matter of fact, yet the proof of that aught to be of Record: And here in our Case, is a condition, and not a limitation. And he said, that in the Case often cited before of 11 H. 7. 17. it is a limitation, and not a condition; For if it were a condition, the Grantee by the Law could not take advantage of it, because not privy: and he was clear of opinion, that where the words are, That the Lease shall cease, or shall be void; yet in such cases there ought to be an Office, for in Leases of the King there needs no reentry, because the King (to speak properly) cannot re-enter. And the words, [That the Lease shall be void] do amount to words of reentry, and he said, That in the Case of a common person upon such a condition broken, the Land shall not be in the Lessor, without reentry, no more shall they be here in the Case of the Queen without an Office: Also the Rent reserved upon this Lease was behind, and the Lessee continuing the possession, the Queen by acceptance of the Rent, hath affirmed the party Tenant, and afterwards granted the Reversion over before any Office found of that matter; Now the Lessee is discharged, and shall never be impeached for the said Rend behind; and the Grant, Ex certa scientia, etc. after found, shall not defeat this Grant by any relation. And the Queen by her Grant hath included all the advantage which accrued unto her by the breach of the Condition, and as to that which hath been objected, That in the Letters Patents there are these words, Notwithstanding the not finding of any Office, etc. truly the same makes the matter more clear for us; for by these words, it is apparent, that the Queen would not have an Office found; & if so, than the Land passeth as in Reversion, and the Queen may dispense with a thing concerning herself: as of late it was adjudged in the Case of one Michael. The Queen makes a Lease for years, rendering Rend, Si petatur, It was holden in such case, that the Rent in such case, aught to be demanded by the Queen's Officer; and in such case the Queen may well enough dispense with her Prerogative; and here the Queen conceived, that she should not have an Office, nor have her Title found by it. Manwood, chief Baron, The Queen leaseth for years upon condition, That if the Lessee doth not marry within two years, that the Lease shall be void, whether here there ought to be an Office or not. Atkinson said, That here ought to be an Office. At another day, It was argued again by Godfrey, This Lease is not void, Ipso facto, for the not payment of the Rent, which is but matter in fact: and as this Lease hath his beginning by matter of Record, so also his end shall be by matter of Record: In cases of a common person there ought to be a demand, therefore in case of the King an Office, Hob. 331. 3 Co. as in the Case of a common person demand aught to be as well where the Condition is by way of reentry, as that the Lease shall be void; therefore in both Cases, in the Case of the King there shall be an Office: and he said, That if the Lease and the Condition be in the Case of a common person, that the Lease shall be void, without any demand of that Rent, then there needs no demand; for demand is a part of Contract: and here, before Office found, the Lease is not merely void, for a Release unto the Lessee before Office, is good; and the Queen is not entitled to the profits before office found; It was argued by Coke to the contrary, The Lease is void without any demand, without any Office, for it is parcel of the Contract to be so void, and he said, That this Lease before Office is void in interest and property, but not in possession: Where a common person shall not have the Land without Action, the King shall not have it without Office, and Scire facias; as Cessavit, Wast. contra formam donationis, etc. and where a common person shall not have before Entry, the King shall not have before Office, for Office is in the place of Entry, Wardship, Mortmain. It is clear, in the Case of a common person, That if the Condition be, that the Lease shall be void without any demand, that there demand is not requisite, therefore nor in the Case of the King: See Browning and Beston's Case, Ploughed. Com. 136. That such a Lease with such a Condition, after the Rent behind, cannot be made good: And it is a general rule, That where the certainty of the term appears by Record, and the King is to have but a Chattel in it, there the King upon matter in fait shall have it without Office; as the Temporalties of the Bishop upon his death, which is matter in fait: See F. N. B. 174. The Widow of the King marries herself without licence of the King, the King shall seize the Lands, and that without Office, and there the marriage is matter in fait: The King leaseth for years upon condition, that if the Lessee marry, that then the Lease shall be void, If the Lessee marry herself, the Lease is void without any Office; and if so, than every stranger in the world shall have advantage of it, as the Case is, 11 H. 7. as was the Case of Ralph Thomas; Ralph Thomas' Case. The Husband seized of Land in the right of his Wife, leaseth for years, and afterwards he and his Wife levied a Fine to a stranger, the Husband dieth, the Conusee shall avoid the Lease, because it was merely void by the death of the Husband: So of a Rent charge granted by the Husband, etc. But although this Lease be merely void, yet a Bill of Intrusion doth not lie against the Lessee before Office, for in such case, a common person shall not have Trespass before entry; but yet if the Lessee dieth after the Rent behind, ut supra, the Lease shall not be said Assets to the Executors, for the not payment of the Rent is a nullity of the Lease by the intent of the original Contract: And also the Lessee is not become Tenant at sufferance after the Condition broken, for Tenant at sufferance takes the profits to his own use; also none can be Tenant at sufferance to the Queen, for than he should have the profits of the Lands by Laches, which shall never be imputed to the Queen: Now it is to see, To what purpose this Office is? A common person makes a Lease upon condition, that if the Lessee alien part, and that be found by Verdict, that the Lease shall be void, the Lessee alieneth part, the Lessor grants the reversion over; after the alienation is found by Verdict, the Grantee shall have advantage of it; if the Case had been, That if the Rent be behind, and Office found of it, that the Lease should be void, the Rent is arrear, and the King grants the reversion, and afterwards Office is found, now the Lease shall be void against the Grantee: Also this Office shall have relation, and comes in as good time, as if it were found before the Grant; Tenant of the King alieneth in Mortmain, the King grants over the signory, Office is found, now by this Office, the King is entitled, not unto the Land, but unto the profits before the Office: And although the Queen hath granted the reversion over, yet she hath not granted inclusive the mean profits: A common person hath a Rent which is arrear, he grants the Rent, the arrearages do not pass: As where the King is seized of an Advowson which becomes void, and afterwards grants the advowson to another, the avoidance shall not pass thereby; Giles' Case. and that was Giles' Case: See 16 H. 7. 7, 8. And in our Case, This Office doth not entitle the Grantee, for how can an Office entitle a common person? If the Lease were but voidable, perhaps, so long as the Lease should continue unavoided the Queen should not be answered the profits, contrary, where it is void. And a common person shall have advantage of it. Egerton, Solicitor general, to the same intent; And he said, that this Lease is altogether void, in privity, property, right and term: In the Case of a common person, after the Rent behind, in such case the Lessee should be Tenant at sufferance, which cannot be in the King's Case; and if Tenant at sufferance, than no privity; for a Release by the Lessor to the Lessee cannot enure, and that for want of privity; Lit. 109. And such Lessee cannot attorn, and if the Lessor after that accepts of the Rent, the same doth not make the Lease good, and all for want of privity; therefore here is no privity: As to property, such a Lease shall not be said Assets in the hands of an Executor, nor shall be sold upon an Extent, nor forfeited by outlawry; And here in this Case, the Queen cannot be said to take any thing by the breach of the Condition, but hath her reversion discharged of the Lease; and he said, That the Office is found well enough for time, and it shall relate to the time when the title accrued, that is, when the Rent was behind, and the arrearages of the Rent do not pass by the grant of the Land, or the reversion: The Queen hath a Rent-charge out of Lands which is behind, the Lands come to the Queen, and she grants the same over, yet she shall charge the Lands with the said arrearages; but contrary, in case of an injury done upon the Land of the Queen: As the Tenant of the King aliens without licence, and afterwards the Lands so aliened came to the King's hands who grants them over; the Grantee, nor the Land shall be charged, but only he who was party to the alienation, his Lands, and his Executors; So of an Intrusion: Tenant for life of the King makes a Feoffment in Fee, the King grants over the reversion, and afterwards the tortuous Feoffment is found by Office; this Office is soon enough for time, and the Grantee of the reversion shall have advantage of it, and the King the mean profits from the time of the alienation: and afterward in Mich. Term, 33 Eliz. the Case was argued by the Barons. Clark, Puisne Baron, The Lease is conditional, and with a limitation also; so conditional and limitation mixed together, 3 Ass. 10. Land given to one until he come from foreign parts; Lands given to one so long as he shall continue sole, is an Estate for life with limitation upon her marriage; so during the coverture, etc. and these limitations are not collateral, but begin with the Estates, when the Estates are limited; but conditions always come when the Estate is settled, as it is in our Case; yet if the intent and substance of the Contract betwixt the King and the Subject be well considered, there shall not be any difference, etc. Lands devised to one, Proviso, That if the Devisee shall disturb the Executors of the Devisor, his Estate shall be void, and the land remain over, etc. the same is a good remainder, for it is a limitation conditional: See Scholastica's Case, Ploughed. Com. 14 Eliz. 413. concerning an Estate tail with a limitation: And Fitz. James Case there put by Dyer: See Browning and Beston's Case before cited, and Martin Dockra's Case where a condition is conceived in words of Covenant, etc. Gent, Baron, argued to the same intent: Manwood, chief Baron, to the same intent. The Rents reserved upon the Leases of the Queen, are to be paid to Receivors, Baileys, or at the Receipt of the Exchequer: The Queen shall not make any demand of her rent, for she hath an infinite number of Farmers, and if demand be necessary, she were to send an army of Receivors, or Baileys to receive and demand her rents. If the Rent of the King be to be paid at the Exchequer, if the King's Fermor be there, and tender the rent at due time, and none be there to receive it, he hath saved his Lease, for he hath done his possible endeavour, although the words of the Condition in the Lease be behind and unpaid, yet not tendered, shall be understood: as in the common case of Mortgages and Obligations. But in all the Record before us, there is no words of any tender, therefore, according to the words of the condition, the Lease is merely void, and determined in right, in privity, and in tenure; for so is the pleasure of the Prince expressed in her Letters Patents under the great Seal of England, That it shall be then void, and of no effect: Then, i. whensoever the Rent shall happen to be behind; and therefore as soon as the Rent was behind the Lease was determined: so that if after the nonpayment a stranger had entered upon him, (scil.) the Lessee, upon which he brings Ejectione Firmae, the Defendant might have pleaded the special matter against him, judgement if Action: so as the Lease is void in Right: It is also void in Privity and Tenure; for a Release to such Lessee, after the Rent is behind, is altogether void; for he was not then Lessee, and so the privity is gone, and no acceptance can make such Lease good. And if such a Lessee after his Rent would surrender, and in consideration of such Surrender obtain a new Lease from the Queen, this new Lease is also void, for here upon the matter is no surrender: Also such a Lease is void in property; for if the Lessee in such case dieth, his interest, such as it is, shall not be accounted Assets in the hands of his Executor: upon the breach of this Condition for the Rent, although that the Lease be become void, yet the possession of the land is not resettled in the Queen without Office: and although the Office doth not make the Lease void, which was void before for nonpayment of the Rent, yet before Office found the possession is not vested in the Queen; for before Office found we cannot award Process against such a Lessee for his continuing the possession after the Rent behind, and until Office found the Lessee cannot be found an Intruder; and Tenant at Will he cannot be, for no other Will appears of the Queen, but that in the Letters Patents, and that is to have the Lease void, whensoever the Rent shall be behind, and that Estate is gone because the Rent is behind; Tenant at sufferance he cannot be in this case. In case of a common person, when Lessee for years holds over his term, he is become Tenant at sufferance, and such a Tenant shall not pay Rend, for it is the folly of his Lessor to suffer his Lessee at sufferance to continue possession of the Land after his term, so as every Tenancy at sufferance is made by the Laches of the Lessor, which Laches cannot be imputed to the Queen: therefore here, this Lessee, when the Condition is broken, is not a Tenant at sufferance, nor shall have the profits of the Lands to his own use, but the Law shall account him to be a Bailiff of his own wrong, and so be accountable to the Queen, but no Intruder till Office be found: and that appears in our Books, 1 H. 7. 17. The King's Tenant dieth, his Heir within age, if any entereth into the Land of the Heir, he shall not be an Intruder until Office found, but the Heir or a stranger who entereth before Office, and takes the profits, shall be brought by Process into the Exchequer to make their Accounts, and to answer the issues and profits; but if he intermeddle after Office, he shall be an Intruder. Tenant of the King alieneth without licence, by that the King is to have the profits, until he compound with the King, and purchaseth his pardon; and if the Feoffee taketh the profits after the Alienation, he is a Pernor of the profits, and shall answer for them; but he is not an Intruder until Office found. Tenant of the King is attainted of Felony, the King is entitled to the Land from the time of the Felony committed, yet if he take the profits until Attainder, he is not an Intruder, but he taketh the profits without Title, therefore he is Bailiff of his own wrong, and so accountable to the King. And it is not a new thing, that a Conveyance or an Estate shall be void as to the Right only, and not as unto the Possession. The Statute of Doms. West. 2. finis ipso jure sit nullus: i. as to the right of the Entail; yet, as unto the possession, the issue in tail is bound until he hath recovered it by a Formedon: Upon the Statute of 21 H. 8. cap. 13. by acceptance of another Benefice against the said Statute, the first Benefice shall be void, etc. yet the same shall not be construed so as to possession, but that the same shall remain with him until it be taken away from him: The Queen leaseth for years, Proviso, that if the Lessee commit Waste, the Lease shall be void; when first Waste is done the Lease is determined in Right, but not as to the possession before Office finding the Waste: So if the Condition be for the building of a House, for by the breach of the Condition, the Lease, as unto the right and interest, is determined, and after Office found it shall revest the possession also: And if a Lease of the King expire by effluction of time, and such effluction appeareth here of Record, if the Lessee in such case continueth his possession, he shall be an Intruder. Sir Robert Chester's Case, Dyer 4. Eliz. 211. Sir Robert Chester was Receivor of the King by Patent, upon condition to render Account yearly at such a day, and before such a day to pay the arrearages; the condition is broken, the Patent was void without Office thereof found, but yet it is not altogether void, for a Scire facias shall be brought against the Patentee. The King leaseth unto A. his Manor of D. and after he leaseth also to the said A. his Manor of S. Proviso, that if the Lessee doth not surrender his first Lease of the Manor of D. at such a day, that then the latter Lease of the Manor of S. shall be void: The Surrender is not made, now the Lessee, if he continue his possession in the Manor of S. after, he is an Intruder. Now is to see of what effect the Office is, not to make the Lease void, but to vest the possession in the King again: It hath been objected, That, as the case is, the Office is not to any purpose, for the Queen hath granted the inheritance over, so as the possession cannot be revested in the Queen by that Office against her own Grant, nor can the Queen punish the Lessee as an Intruder for his continuance of the possession after the Office, nor can seize the Land by such Office, and there is not any such Office for the benefit of a Subject, therefore the Office is merely void. Let us compare our Case unto the Case of Cessavit; The Tenant of the King ceaseth for two years, the King grants the signory over in fee, the Cesser is found by Office, the Grantee of the signory gains nothing by it; but that is not like unto the Case in question, for there when the Office is found, the Tenant may tender the arrearages, for the King is not absolutely entitled by the Cesser, because by tender of the arrearages the Tenant may save his Tenancy: But in this case, after the Condition is once broken, there is not any means for the Tenant to save the Forfeiture: also the King by his Grant, after the Cesser, hath not granted the thing which accrued unto him by the Cesser, (scil.) the Tenancy, but only the signory: but in our case the King hath granted the thing forfeited, i the land demised: and here is a full forfeiture, contrary in the case of Cesser: And in our Case the King hath granted only the land demised, and not the profits encurred mean between the breach of the Condition, and the Grant of the King, but these remain to the Queen, and to that purpose the Office is good, (scil.) to entitle the Queen to these profits. And as to that which hath been objected, That the Lessee hath always paid the Rent unto the Queen after the Condition broken, and hath an Acquittance of the Receipt of it, therefore no profits due to the Queen, for she hath the Rent in lieu of the profits; and it is not reason, that the Lessee shall pay an annual Rent, and also shall be accountable for the mean profits, and so the Office, as unto the mean profits (which in truth upon the matter aforesaid are not due unto the Queen) is void, and then altogether void, quia nihil operatur, To that he answered, That the King shall not be bound off the mean profits in that case by the payment of the said Rent, for by intendment the true annual value of the Land is more than the Rent reserved; and it is not reason but that the Queen shall be answered of the surplusage or overplus above the Rent, and therefore the Office entituling the Queen to part of the profits is good enough: Tenant of the King for life, or for years, makes a Feoffment in Fee, although that by this Act he cannot pluck any thing out of the King, yet because he hath attempted to do such a wrong, it is a forfeiture, and the Lease for years utterly extinct by it; for it cannot be in the Feoffor against his own act, by which he hath departed with all his Interest, etc. And the Feoffee cannot have it, for if he hath any thing, it ought to be a Fee-simple, or nothing at all; and a Fee-simple he cannot have, for that remains in the King, and so neither have Estate, then is all in the King, and the King hath Title to have the profits, etc. But put case, that after the Feoffment the King grant over the Land in Fee, and after that tortuous Feoffment is found by Office, he who accupieth the Land after the forfeiture, until Office be found, shall be occountable to the King for the issues and profits, etc. as Pernor of the profits, or Bailie of his own wrong, and he who occupieth the Land after the Office shall be punished as an Intruder. There was a Case very late in this Court betwixt Sir Tho. Henage and one Hungate, which was thus; Sir Tho. Henage & Hungate's Case. the Queen leased for years unto Hungate, provided that he should not do Waste; Waste is done, the Queen granted the Reversion to Sir Tho. Henage, Office is found, the Grantee entered, and his entry was adjudged lawful, and that the Queen should have the mean profits from the time of the Waste done until the time of the Grant. Some say, Sir Walter Mildmay's Case. that that case was not adjudged, but compounded: And he vouched Sir Walter Mildmay's Case: The Lord Sturton held Lands of the Queen in Knights-service, and was attainted of Felony, by which the Lands escheated to the Queen, who granted those Lands; and it was holden, that the Queen should have the mean profits betwixt the time of the Felony committed, and the Grant. And after in the principal Case judgement was given for the Plaintiff, (scil.) the Patentee of the Queen against the Lessee; who cast in a Writ of Error, and by his Council prayed, That the Writ of Error be not broken open until the judgement be entered. Manwood, The judgement hath reference and relation unto the first day of this Term, and therefore do not doubt of that. CLXXIX. Sted 's Case. Mich. 32 Eliz. In the Exchequer. 3 Len. 259. Stead, of Great Melton in the County of Oxford, was assessed to 7 s. for Fifteen, and upon refusal to pay it, the Collectors distrained the Beasts of Sted, and sold them: Sted brought Trespass thereupon in the King's-Bench; and the Collector exhibited his Bill into this Court against Sted, who shown by his Council, That the Statute of 29 Eliz. which enacted this Fifteen, provideth, That the said Fifteen shall be levied of the movable Goods and Chattels, and other things usual to such Fifteen and Tenths, to be contributory and chargeable; and shown farther, that the distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative, which he had in Lease, which Gleab Land is not chargeable usually to Fifteen granted by the Temporalty, nor the Chattels upon it. But it was the Opinion of the whole Court, Although that the Parson himself payeth Tenths to the King, yet the Lay-Farmor shall pay Fifteen, and his are distrainable for it, even upon the Gleab Land of the Parsonage; and therefore it was adjudged, that in the principal Case the Distress and Sale were good and lawful. CLXXX. The Dean and Chapter of Winsors Case. Mich. 32 Eliz. In the Exchequer. 3 Len. 258. IN this Case it was moved, If one hath a Rectory impropriate, and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth, and by that is discharged of Tenths and first fruits; If he shall have the Privilege of the Exchequer? for he is to pay the same sum yearly: And the Barons were of Opinion, that he should not; for so every one, who is to pay any Tenths or first fruits, should draw another who sueth him into the Exchequer, and so all Controversies concerning Tithes and Parsonages should be drawn hither, which should be a great prejudice to the Spiritual Courts. But Egerton, Conier's Case Solicitor, vouched a Case, (scil.) Conier's Case, where the King gave a Parsonage to a Priory in Frankalmoign, and the Tithes thereof being withdrawn, the Prior impleaded him who withdrew his Tithes in the Exchequer; and in that Case it was holden, that the Prior should have the Privilege, for the King is in danger to lose his Patronage, or rather his Foundership, if the Rectory be evicted. Gent, Baron, The Tenant of the King in chief, or he who pays first fruits, or he who holds of the Queen in Fee-Farm, shall not have in such respect the Privilege here. Quaere. CLXXXI. Coney and Beveridge 's Case. Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond, the Case was, That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge, rendering Rent; and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent: upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton, to which the Defendant pleaded payment of the Rent, without showing the place of payment: and upon payment they were at issue, and found for the Plaintiff by Nisi prius in the County of Northampton: In Arrest of judgement it was moved, that the issue was mis-tryed; for here the payment of the Rent being pleaded, without showing the place of payment, it shall be intended that the Rent was paid upon the Land, which is in the County of Cambridge: See 44 E. 3. 42. Anderson was of opinion, that no judgement should be given for the cause aforesaid: Rhodes and Windham contrary; for it doth not appear that the issue is mis-tried, because that no place of payment is pleaded; and it might be, for any thing is showed, that the Rent was paid in the County of Northampton. CLXXXII. Berry and Goodman 's Case. Trin. 30 Eliz. In the King's-Bench. IN an Ejectione Firmae, upon a special Verdict, the point was, Ow. 95, 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk; and during this Intrusion, the Queen granted these Lands to A. B. by her Letters Patents; and the Patentee, before any Entry made in the said Land, granted the same over. Some held, that the Grant was good, for the Intruder had gained nothing against the Queen, and by the Grant of the Queen, and the assignment over, nothing accrued to him: and where a man hath possession of Lands, his continuance therein cannot gain to him any interest, or increase his Estate, without some other act done of later time. If the Guardian do continue in possession after the full age of the Heir, he is not a Disseisor, nor hath any greater Estate in the Lands: and upon the Book of 21 E. 3. 2. this Case was collected; The Tenant of the King dieth, his Heir within age, a stranger intrudes, the Heir at full age sueth his Livery out of the King's hands, the Intruder dieth in possession; the same descent shall not take away Entry. Coke contrary, The Intruder cannot be Tenant at sufferance, for at first he enters by wrong, and none can be Tenant at sufferance but he who comes in by Title: And it is clear, That the Intruder by his first Entry doth not gain any Estate in possession, upon which he can have an Action of Trespass, but after the Grant of the Queen he hath presently Fee by wrong: 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward, yet the Freehold doth remain in the Heir. And he said, that if A. levyeth a Fine to B. sur Conusans de droit, etc. now the Conusee hath possession in Law, but not in fact; and if before the entry of the Conusee W. entereth, and dieth seized, he hath no remedy, for he had not possession in fact, so as he might have an Assize, or an Action of Trespass: Antea 210, 1 Cro. 920. Ow. 96. So the Law is now taken; A. deviseth his Lands to B. and dieth, and a stranger entereth and dieth seized before any Entry by the Devisee, now is the Devisee without remedy: And here in our Case, the Intruder hath not gained any possession in the Lands by his intrusion, no more than if the King gives Lands to one in Fee, and before the Patentee enters, a stranger enters, now cannot the Patentee grant it over, if he doth not reduce the Estate by Entry: See Dyer 9 and 10 Eliz. 266. P. 20 Eliz. in Curia Ward. Garbery's Case. acc. The Queen seized of the Manor, of Beverley, a stranger erected a Shop in a vacant plat of the Manor, and afterwards took the profits of it, without paying any Rent for the same to the Queen, and afterwards the Queen granted the Manor to the Earl of Leicester, and he never entered into the said Shop, nor took any Rent for the same, and afterwards the Occupier of the Shop, died in possession, and his Son and Heir entered; and the better opinion was, that the same was not a descent against the Patentee, because at the first it was not a disseisin against the Queen: Another Question was moved, as to a pathway then in question: And the jury found that one side of the pathway was the Land of the Parson of the Church, and the other side the Churchyard, and prayed the opinion of the Court therein, to whom the interest of the pathway did belong; to which it was said by the Court, That that aught to be found by the Verdict; For although that both be the Freehold of the Parson, yet the soil of the pathway might be conveyed by an express Grant unto another. But the Court seemed to incline, that the soil of the pathway did belong to him who had the Lands on both sides, and that is the Case, as well of a highway as of a pathway; And it is also good Evidence to prove such matter, Who hath used to cut down the Trees, or to cleanse the way. CLXXXIII. Wiseman 's Case. 24 Eliz. In the Court of Wards. 6 Co. Weeden & Baldwin's Case. IN the Court of Wards, before the Lord Treasurer, Master of the Wards, Wray, chief justice, Anderson and Periam Assistants to him; the Case was, That Wiseman was seized of certain Lands holden by Knight's-service in Capite, had issue by a former Wife who died; and made a Feoffment in Fee to the use, of her who should be his Wife, for life, and afterwards to the use of himself and of his issue of the body of such Wife to be begotten, the remainder over; Wiseman took a Wife, and had issue, and died; If now, living the Wife, the issue shall be in Ward, was the question? It was argued by Coke, That he shall not be in Ward: And first, it was agreed of both sides, and also by the justices, That it was a remainder and not a reversion; and that at the Common Law, the descent of a remainder, during the Estate for life, doth not entitle the King unto Wardship; and there we are to see, if upon the Statute of 32 H. 8. the last branch of it; where two or more persons hold any Lands of the King by Knights-service, jointly to them and the heirs of one of them, and he that hath the Inheritance thereof dieth, his heir being within age, in every such Case, the King shall have the Ward, and marriage of the body of such heir, so being within age, the life of the Freeholder, or Freeholders of such Lands notwithstanding: See 33 H. 6. 14. That the father, to prevent Wardship, may alien, and take to him and his son, and the heirs of the father, which mischief was intended to be remedied by the said Statute: But these words shall not in construction thereof extend farther than the words especially, because they cross the Common Law, and go to charge the Inheritance of others; and therefore they shall be taken strictly, and not by equity: as the Statute of West. 2. cap. 40. Cum quis alienat jus uxoris suae, concordat. est, Quod de cetero secta mulieris aut ejus haeredis non differatur propter minorem aetatem haeredis, qui warrantizare debuit, that Statute is taken strictly; for if the Vouchee voucheth over, the second Vouchee shall have his age, Quod vide 18 E. 4. 16. Also the Stat. of West. 1. enacts, That where the Disseisor dieth seized, the Disseisee shall have his Writ upon the Disseisin against the heir of the Disseisor of what age soever he be: So the heirs of the Disseisee, yet it is holden, 9 E. 3. If the Disseisor leaseth for life, and dieth, and the Lessee be impleaded, and makes default after default, upon which the heir of the Disseisor prayeth to be received, being within age, he shall have his age, notwithstanding the said Statute, which shall be taken strictly, because it controls the Common Law, and chargeth the Inheritance of the Subject: So upon the Statute of West. 1. cap. 39 That none shall vouch out of the line upon that Statute, although the Tenant to the Action against whom the Praecipe is brought, is bound by the Statute, yet Tenant by receipt is at large, and he may vouch at the Common Law: 2 H. 7. 2. 16 H. 7. 1. for these Statutes go in abridgement of the Common Law, and therefore shall be taken strictly: Now, according to this Statute, it is of the same nature as the other before remembered, and therefore shall not be extended in construction beyond the Letter. As Sir Rowland Hill's Case, Grandfather, father and son, the grandfather seized of Land, ut supra, makes a Feoffment in Fee to the use of himself for life, and afterwards to the use of the son in Fee, The grandfather dieth, the father dieth, the son shall not be in Ward, Causa qua supra, For this Statute shall not be construed by equity, and by it the words thereof, [Preferment of children] shall not extend unto the children's children, but to the children only of the King's Tenant, who makes the Conveyance: And the words in this Statute [or otherwise] shall not be intended to other persons than are remembered in the Statute. There was a Case late, where the Statute was construed in such a manner, Quod vide 18 Eliz. 345. Thornton's Case; A Lady, seized of Lands in chief, made Conveyance of her Lands, for the advancement of her bastard-daughter, the same Conveyance is not within the Statute: See also the Lord Powes' Case, 14 Eliz. Dyer 313. So in the Case of Sir Hugh Calverley, the Law was taken, That where the Husband dieth seized in the right of his Wife, and they levy a Fine unto the use of the Husband and Wife, for the advancement of the Husband; such Conveyance and disposition is not within the Statute of 32 H. 8. Popham, contrary, And as to the Case of making this Statute, it was not to overthrow a foundation, as it hath been said; but it was rather a gratuity of the Subjects to the King for his bounty towards them; for whereas by the Statute of Uses, Uses were executed in possession, so as the Subjects could not dispose of their Lands, by their Wills, as before the Uses: Now, by this Statute, the King was pleased to give his Royal assent to an Act, by which Lands might become devisable, in respect of which, the Subjects added to this Act, the last clause, to give him Wardship, where it did not lie before by the Common Law, and that as a recompense from the Subjects for the King's bounty, and therefore it ought to be construed beneficially for the King. And to prevent covin and fraud, was not the scope of this Statute; For if three purchase Lands unto them, and to the heirs of two of them; now it is uncertain whose heirs shall inherit, for non constat, which of them shall survive, and therefore no covin is averrable in such case; and yet if the survivor of two to whom the Fee is limited dieth, his heir within age, such heir shall be in Ward: So if such Lands be given to two, and to the heirs of him of those two who shall first come to the Church of Paul; Now it is uncertain which of them shall first come to the Church of Paul, yet if he who first cometh to the Church of Paul dieth, his heir within age, he shall be in Ward; which Cases prove, that covin and fraud were not the cause of making this Statute, but only the thankfulness of the Subjects unto the King for his bounty, as abovesaid; for if this Act had not been made, the Subjects should not have power to dispose of their Lands for the advancement of their children, but all should descend: So as now the King hath lost the Wardship and Primer seisin of two parts of the Lands of his Tenant, and hath also lost the averment of covin, which he had by the Common Law, where Estates were made by the King's Tenant for advancement of their children. In respect of which losses, the Subjects gave unto the King Wardship in case where the Lands continue in jointure: as to that which hath been said; That this Statute shall not be taken by equity, I conceive the contrary; the words of the Statute are, In every such case, i. e. In every like case, not only where two, or more persons hold jointly to them and the heirs of one of them, but also in every the like Case; as the Case now in question, and in every Case where the life of him who hath the Freehold, is the sole impediment, quo minus, the heir hath not the Land by descent in Demesne: And it may be resembled unto the Statute of Marlbridge of Collusion, which speaks of Leases for years, Quas tradere voluerint ad terminum annorum; and yet a Lease for life, or Lease for years is within the said Statute; for the Statute was made in restraint of an ill liberty, that the Tenants had by the Common Law in prejudice of their Lords, which see 4 E. 6. 53. & Blow. 59 And as to the word [otherwise] that may be construed, for payment of his Legacies: And as to equity enlarging, the Statute speaks [where many hold, and to the heirs of one;] yet, if two hold, to them and the heirs of one of them, the same is within the Statute: And as to Equity restraining, he puts this case; Land is given to the Husband and Wife, and the heirs of the body of the Wife, who have issue, the Wife dieth, the issue within age, he shall not be in Ward; and yet he is within the Letter of the Statute, but because that other matter, That the Estate for life, in the Husband is an impediment, Quo minus, he shall be in Ward: It is a maxim of the Common Law, That the father shall have the Wardship of the son and heir apparent, therefore he shall not be within the meaning, although he be within the Letter of the Statute: So, if Lands be given to my Villain, and to another, and to the heirs of my Villain, who dieth seized, his heir within age, I seize the Villain, and claim the remainder, he shall not be in Ward; and yet he is within the Letter of the Statute: But I conceive, in our Case, the King shall have two Wards, Simul & semel, the heir general of Wiseman, and the issue in tail; the heir general by the Common Law, by reason that his father was the King's Tenant, who disposed of his Lands for the advancement of his children; and therefore the Queen shall have the third part in Ward: And also the heir special shall be in Ward, for that part of the Statute. And it is no new thing to have two Wardships for one and the same Lands: As 14 H. 8. of the heir of Cestuy quae use, and also of the Feoffee; and if the Tenant dieth seized, having issue a daughter, who is his heir, the Lord seizeth the daughter, and marrieth her, and afterwards a son is born; he shall have the Wardship also of him: So of the heirs of the Disseisor and Disseisee; and he said, If Lands holden in chief be leased for life, the remainder to A. in Fee, A. dieth, his heir within age, he shall be in Ward, and that by reason of these words in the Statute, [In every such case] it is not the same Case, but the like Case; for if he who hath the Fee dieth, so as the Freehold survives to the other; now the Estate becomes as an Estate for life, the remainder over. It was adjourned. CLXXXIV. The Lord Howard and the Town of Walden 's Case. 24 Eliz. In the Exchequer. More Rep. 159. Post 162, 163. BEtwixt the Lord Howard and the Town of Walden, the Case was, That the King made a Feoffment in Fee of Lands, parcel of his Duchy of Lancaster, Tenend. in feodi forma reddend. inde sibi, & haeredibus suis, aut illi cui de jure reddi debet, 10 l. The question was, How, and of whom the Tenure should be? It was argued by Plowden, That it should be holden of the King, as of his Duchy; he said, The King is not bounden by the Statute of Quia emptores terrarum; but here, upon this Feoffment, the Feoffee shall hold of the King, as of his Duchy: All Grants of the King, notwithstanding that they be of Lands, yet they savour of the person of the King and his Prerogative being wrapped up in his person; shall guide the disposition of the land; and he said, that this Tenure shall be employed by reason, and in respect of his person: And the Statute of Quia emptores terrarum, extends to Tenants only, Libere tenentes magnatum & aliorum; but the King is not Libere tenens alicujus magnat. 32 H. 6. 21, 22. The King hath an Advowson in the Right of his Duchy, to which being void, he presents; he may repeal his presentment: and he vouched divers precedents of Grants of the King of such lands to hold of him, as of his Duchy, and sometimes of others: And the King by his Duchy seal may give lands in Mortmain; and the King under his Dutchy-seal, hath made divers Corporations within his Duchy, And although this Rent be a new thing, never parcel of the Duchy, yet, because it is issuing out of the Duchy lands, and reserved thereout, shall be of the same nature, and accounted parcel of the possessions of the Duchy: If before the Statute of West. 3. one seized of lands on the part of his mother, made a Feoffment in Fee, Tenend. by such services, and died, the signory should go to the heir on the part of his mother, and should be descendable as the land itself, in lieu of which it came: And if Tenant in tail: now after the Statute of 32 H. 8. makes a Lease for years according to the Statute, rendering Rend to him and his heirs, it shall be expounded such heirs which are inheritable to the land, according to the entail. Manwood, chief Baron, Demanded of Plowden, this Question; The King makes a Feoffment in Fee of lands of his Duchy, Is the same a matter of Record? who answered, yes, Manwood, Truly no, for then there needed not any livery. Egerton, Solicitor, argued to the contrary, and he argued much upon the Statute of 1 H. 4. and 1 H. 7. of the separation of the Duchy of Lancaster from the Crown, which see in the Comment. 215. in the Case of the Duchy of Lancaster; by which Acts, the possessions of the Duchy were devested out of the body Politic of the King, and vested in his body natural, and are as their corporal holding in the King, as they were in the Duke of Lancaster, being a Subject; who if he had made a Feoffment, the Feoffee should not hold of him, but of the King; Ergo, so shall it be in the case where the King himself makes a Feoffment: and he cited a Case, put in the end of the Duchy Case, 4 Eliz. 223. The Queen made a Feoffment of lands of the Duchy out of the County Palatine, to hold of her in Capite; the Feoffee shall hold of her in Capite as of her Crown of England. The case went farther; the King after this Feoffment, granteth the Fee-farm, the Question is, If the Rend reserved upon this Feoffment shall pass by such grant or not: and he said, That this Rent is not parcel of the Fee-farm, but rather a collateral charge upon the land; for in all cases where there is a Tenure expressed in fait, or employed in Law, there the rent reserved after, shall not be parcel of the Tenure, but a Rent in gross by itself: As in our case, Tenend. in feod. firm. makes a Tenure; therefore the Reddend. after shall not make the sum reserved parcel of it: 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum; a man makes a Feoffment in Fee, Tenend. de Dominis Capital. rendering the rent of 20 l. that Rent is a Rent in gross and not parcel of the Tenure. King E. 6. granted to Cranmer Archbishop, and his heirs, Tenend. by the fifth part of a Knight's-fee, Reddend. 6 l. per ann. Cranmer in Feoffment in Fee to the use of himself for life, the remainder to the use of his son in tail, the remainder to the use of the right heirs of Cranmer made a Fee, who is attainted of Treason, by which the remainder to his right heirs Escheats to the King, and so the signory is extinct; but it was adjudged, That the Rent was in esse, and not extinct by the Escheat of the remainder, for it was not parcel of the signory: So here in our case. Another matter was moved; If this Rent, being a new thing created, de novo, and not parcels of the possessions of the Duchy, 1 H. 4. nor 1 H. 7. shall be accounted in Law in the right of the Crown, or of the Duchy; and if of the Crown, than it cannot pass by the Dutchy-seal: and the Statute of 1 H. 4. speaks of such Lands and Tenements which were to his Ancestors, Dukes of Lancaster; but this Rent never was in them, etc. and the Queen cannot enlarge the possessions of her Duchy by her own Act; and therefore, if J. S. being Tenant in Fee-simple, be impleaded in a Praecipe quod reddat, and saith that he holdeth for life, the remainder to the King in Fee in the right of his Duchy; now this remainder is vested in the King in the right of his Crown, and not in the right of his Duchy; for it is only an Estoppel: So the Villain of the King, in the right of his Duchy, purchaseth lands, the King seizeth, he shall have the lands in the right of his Crown, and not in the right of the Duchy: If the King giveth Common out of his lands, parcel of his Duchy, and afterwards makes a Feoffment in Fee of the lands out of which the Common is granted, and afterwards the Commoner dieth without heir, the King shall have the same in the right of his Crown, and not in the right of the Duchy: So, although the rent doth follow the nature of the lands out of which it is issuing, yet it is not so to all intents; and he said, That by the Statute of 2 & 3 Phil. & Ma. the King could not enlarge the possessions of the Duchy; and therefore by the said Act, authority is given for to annex possession unto the Duchy by Letters Patents; And there is another clause in the said Statute, That if any part of the possessions of the Duchy have been aliened, or granted unto any subject, and are reverted to the Crown by Escheat, attainder, forfeiture, purchase, etc. they shall be deemed and accepted parcel of the Duchy; which case proves, That if the King makes a Feoffment of such lands, the same is a Tenure in chief; for if it were a Tenure of the Duchy, then upon Escheat, it should be parcel of the Duchy again, without the help of that Statute. Now, this Rent being a Rent in gross, and not parcel of the signory, Reddendo Domino Regi, haeredibus & successoribus suis, aut Domino, aut Dominis feodi, when the King grants the signory to the Lord Audley, it hath been moved, that it was in the Election of the Feoffee, to pay the Rent to the King, or to the Lord Audley; but that is not so, for although the Law be so betwixt Subjects, yet in case of the King it is otherwise; for the King shall never be overreached by an Election: and therefore he shall pay the Rent to the King. It was adjourned. CLXXXV. The Executors of Sir William Cordel and Clifton 's Case. Hill. 18 Eliz. In the Common Pleas. 3 Len. 59 THE Case was, The Earl of Westmoreland, seized of a Manor, whereof the Demeans were usually let for three lives, by Copy, according to the custom of the Manor, granted a Rent-charge to Sir William Cordel, 2 Roll, 157. Pro concilio impendendo, for the term of his life; and afterwards conveyed the Manor to Sir William Clifton in tail; The Rent is behind, 12 Brownl. 208. Sir William Cordel dieth, Sir William Clifton dieth, the Manor descends to John Clifton, who grants a Copyhold to Hempston: the Executors of Sir William Cordel distrain for the Rent; It was agreed by the whole Court, Antea 109. That the Copyholder should hold the land charged. Windham, justice, It hath been adjudged, that the wife of the Lord shall not be endowed against the Copyholder, Dyer 270. which Periam granted, but gave the reason of it; for the Title of the Dower is not consummated before the death of the husband; so as the Title of the Copyholder is completed before the Title of Dower; More 94. but the Title of the Grantee of the Rent is consummated before the Dower, Fenner conceived, That the Executors could not distrain upon the possession of the Copyholder, and he argued, that this case is not within the Statute of 32 H. 8. of Wills, For by the preface of the said Statute, he conceived, That the said Statute did extend but to those cases for which by the Common Law no remedy was provided; but in this case, the Executors by the Common Law, might have an Action of debt, ergo: But Periam and Windham, contrary; For this Statute doth intent a farther remedy for that mischief, (scil.) not only an action of debt, but also distress and avowry: See the words of the Statute, Distrain for the arrearages, etc. upon the lands, etc. which were charged with the payment of such rents, and chargeable to the Distress of the Testator; or in the seisin or possession of any other person or persons claiming the said lands, only by and from the same Tenant by purchase, gift, or descent, in like manner and form as their Testator might or aught to have done in his life time: And it was moved by Fenner, That here the said land charged, doth not continue in the seisin or possession of the Tenant; and here Sir John Clifton was issue in tail, and therefore he doth not claim only by the father, but per formam Doni; and therefore he is not liable; therefore neither his Copyholder. Shuttleworth, Serjeant, contrary, That Sir John Clifton was chargeable; and he claims only from them who immediately ought to have paid the Rent, and the Copyholder claims by purchase from Sir John Clifton, so he claims from Sir William Clifton the Tenant, etc. although he doth not claim immediately from him: For if the Tenant ought to have paid it, and dieth, and the land descendeth to his heir, and the Heir maketh a Feoffment in Fee, the Feoffee shall be charged within this Statute, although he doth not claim immediately: so where land descends from the Tenant which ought to have paid it, and so from Heir to Heir. The Statute of 1 R. 3. wills, that all grants, etc. shall be good against the Donor, his Heirs, etc. claiming only as Heirs to Cestuy que use, etc. Yet, if Cestuy que use granteth a Rent-charge, and the Feoffees are disseised, the Grant shall be good against the Disseisor; and yet he doth not claim only by Cestuy que use: And although Sir John Clifton be Tenant in tail, and claims per formam Doni; Yet, because the Estate tail cometh under the Estate of him who grants the Rent, he shall be subject to the charge. And this Statute extends not only to him who claims by the Tenant, but also to the Heir of him who grants, etc. And by Windham and Rhodes, The Copyholder doth not claim only by the Lord, but he claims also by the custom; but the custom is not any part of his Title, but only appoints the manner how he shall hold, etc. The possession continues here in Sir John Clifton, for the possession of his Copyholder is his possession; so as if the Copyholder be ousted, Sir John Clifton shall have an Assize: And so the strict words of the Statute are observed, for the seisin and possession continues in Sir John Clifton who claims only by Sir William Clifton who was the Tenant in demean who ought to pay the Rent. But Fenner said to that; that the seisin and possession intended in the Statute, is the very actual possession, (scil.) Pedis dispositio, and such a possession in which the distress may be taken and that cannot be taken in a Freehold without an actual possession. CLXXXVI. 19 Eliz. In the Common-Pleas. 3 Len. 65. A. Seized of land in Fee, by his Will in writing, granted a Rent-charge of 5. l. per an. out of it to his younger son, towards his Education and bringing up in Learning, and if in pleading, the Devisee ought to aver that he was brought up in Learning was the Question: And it was holden by Dyer, Manwood and Mounson, that such averment needs not; for the Devise is not conditional; and therefore, although he be not brought up in Learning, yet he shall have the Rent: and the words of the Devise, are, Towards his bringing up; and he well knew, that 5 l. per an. would not, nor could extend to maintain a Scholar in Learning, Dy. 329. a. in diet, apparel, books, etc. and this Rent, although it be not sufficient to such purpose, yet he shall have it; And Dyer said, That such a case was here: Two were bound to stand to the award of certain persons, who awarded that the one of them should pay unto the other 20 s. per an. during the term of six years, towards the education and bringing up of such a one an Infant, and within the two first years of the said term the Infant died, so as now there needed not any supply towards his education; yet it was adjudged, that the yearly sum ought to be paid for the whole term after; for the words [toward his education] are but to show the intent and consideration of the payment of that sum, and no word of condition, etc. CLXXXVII. West and Stowel 's Case. Mich. 20 Eliz. In the Common Pleas. 1 Cro. 870. Townsend. 17. 1 Roll 28. More 549. Sty. 353. a. IN an Action upon the Case, by Thomas West against Sir John Stowell, The Plaintiff Declared, That the Defendant, in consideration that the Plaintiff promised to the Defendant, that if the Defendant shall win a certain match at shooting, made between the Lord of Effingham and the Defendant, than the Plaintiff should pay to the Defendant 10 l. and promised to the Plaintiff, That if the said L. Effingham shall win the same match of the Defendant, that then the Defendant would pay to the Plaintiff 10 l. And farther declared, That the Lord Effingham won the match, for which the Action is brought. It was moved, that here is not any sufficient consideration; for the promise of the Plaintiff to the Defendant, Non parit actionem, for there is not any consideration upon which it is conceived, but is only, Nudum pactum, upon which the Defendant could not have an Action against the Plaintiff. And then here is not any sufficient consideration for the promise of the Defendant. Mounson, justice conceived, that here the consideration is sufficient, for here this counter promise is a reciprocal promise, and so a good consideration, for all the communication ought to be taken together, Manwood, Such a reciprocal promise betwixt the parties themselves at the match, is sufficient; for there is consideration good enough to each, as the preparing of the Bows and Arrows, the riding or coming to the place appointed to shoot, the labour in shooting, the travel in going up and down between the marks: But for the Bettors by, there is not any consideration, if the Bettor doth not give aim: Mounson, A cast at Dice altars the property, if the Dice be not false; wherefore then is there not here a reciprocal Action? Manwood, At Dice the parties set down their moneys, and speak words which do amount to a conditional gift; (scil.) If that the other party cast such a cast he shall have the money. CLXXXVIII. Dunne 's Case. 19 Eliz. In the King's-Bench. Done possessed of divers goods in divers Dioceses died intestate at Bristol; The Bishop of Bristol committed administration to Jones and his Wife, who administered; and afterwards the Bishop of Canterbury, by reason of his Prerogative, committed administration to Austen and Dunne, and they brought an Action of Trespass against Jones and his Wife, for taking of the goods of the intestate; It was holden by Wray and Southcote, 5 Co. 2, 30. 1 Cro. 283. 457. that the Letters of administration granted by the Bishop of Bristol, were void: Gawdy and Jeofreys, contrary; for the granting of Letters of Administration, de mero jure, doth belong to the Ordinary; and it might be that neither the Ordinary, nor the parties to whom he granted the Letters of Administration had notice that the Intestate had bona notabilia in another Diocese, and therefore it should be hard to make the Defendants Trespassors; Exception was taken to the Declaration, because it is showed that the Archbishop of Canterbury, by reason of his Prerogative, committed Administration, etc. without showing that the Intestate had bona notabilia, etc. but the Exception was not allowed, for so are all the precedents, as the Declaration is here, which all the Clerks in Court did affirm; and afterwards Exception was taken to the Bar, because it is there pleaded, that the Defendant had paid a certain sum of Money to one A. to whom the Intestate was indebted by Bond, and did not show how the Bond was discharged, as by Release, Acquittance, cancelling of the Bond, etc. And that was holden to be a material Exception: For the Defendants in such case, aught to show such discharge, which is sufficient, and by which the Plaintiffs may be discharged; and for that cause the Plaintiff had judgement to recover. CLXXXIX. Kingwell and Chapman 's Case. 19 Eliz. In the King's-Bench. IN an Action of Debt upon a Bond, by Kingwell against Chapman; 1 Cro. 10. The Defendant pleaded, that it was endorsed upon condition, That where divers debates were betwixt the Plaintiff and one J. Brother of the Defendant, the said Plaintiff and J. put themselves to the award of one Copston, and the Defendant was bound by Bond to the Plaintiff, that his brother should perform the award of the said Copston: And the award was, That the said J. should pay to the Plaintiff 30 l. viz. at the Feast of the Annunciation 20 l. and at Michaelmas after 10 l. and shown, that the said J. had paid the said 20 l. at the Annunciation; and as to the 10 l. he pleaded, That the said J. died before the said Feast of Michaelmas, upon which there was a demurrer: And by Wray, Southcote and Gawdy, justices, the Bond is forfeit. First, because the sum awarded by the Arbitrament, is now become a duty; as if the condition of the Bond had been for the payment of it: Secondly, day is appointed for the payment of it, 10 H. 7. 18. Thirdly, the Executors cannot perform the condition. But if I be bound by Bond to enfeoff the Obligee at such a day, and before the said day I die, my Executors shall not be charged with it; for the Condition is become impossible by the Act of God, for the Land is descended to the heir. CXC. Lodge 's Case. 20 Eliz. In the Common-Pleas. Syderf. Rep. 362. LOdge, an Attorney of the Common-Pleas, was indebted unto Booth in 34 l. payable at a day to come, and Booth was indebted to Diggs in 40 l. Diggs, according to the custom of London, attached in the hands of Lodge 34 l. to be paid to him at the day, as part of his debt of 40 l. Lodge brought a Bill of Privilege, directed to the Mayor and Sheriff of London, and that every person, who had cause of Action against Lodge, Sequatur ad Com. Legem, etc. Si sibi videbitur expedire, etc. At the return of which Writ, Bendloes prayed a Procedendo. And by Harper, justice, the privilege shall not be allowed, because that this Attachment is by custom, and not allowable here; and if Lodge should have the privilege, then is the other party without remedy: And if an Attorney of this place be impleaded in London upon a Concessit solvere debit. alterius, he shall not have the privilege. Manwood contrary; For according to the Common Law, Lodge owed nothing to Diggs, but is his Debtor by a custom: And as to the Case of Concessit solvere, there the promise was to the party himself, who brought the Action; and he hath no other remedy; but in the Case at Bar, Diggs, who is a stranger, vexes Lodge, who owes him nothing, having remedy against his proper Debtor, which Dyer granted, and farther said, That the privilege of this Court ought not to be impeached by any custom: And the Prothonotaries cited a Case adjudged in the point; That such a privilege was allowed in the Case of one Underhil, and afterwards in the principal Case the privilege was allowed. CXCI Segar and Bainton 's Case. 21 Eliz. In the Common-Pleas. 3 Len. 74. IN an Action of Trespass, the Case was, That King Hen. 8. an. 27. of his reign, gave the Manor of D. to Sir Edw. Bainton Knight, and to the heirs males of his body; Sir Edw. Bainton had issue, Andrew his eldest son; and the now Defendant his younger son, and died; Andrew Bainton covenanted by Indenture with the Lord Seymore, That the said Andrew Bainton would assure the said Manor to the use of himself for life, the Remainder to the use of the said Lord and his heirs; and the said Lord in recompense thereof, should assure other Lands to the use of himself for life, the remainder to the use of the said Andrew Bainton in tail, who, 37 H. 8. levied a Fine of the said Manor without Proclamations to two strangers, to the uses according to the said agreement, and before any assurance made by the said Lord, the said Lord was attainted of Treason, by which all his Lands were forfeited to the King: And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter; and upon his humble Petition, the said Queen by her Letters Patents, reciting the said mischief, etc. Et praemissa considerans, & annuens Petitioni illius, granted to him the Manor aforesaid, and farther, De ampliori gratia sua, did release to the said Andrew Bainton, all her right, possession, etc. which came to her, Ratione attincturae praed. vel in manibus nostris existant, vel existere deberent; after which, 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff, with Proclamations, and died without issue, and the Defendant, as issue in tail, entered. Puckering, Serjeant: First, it is to see, if by the words of the Patent of Queen Mary; viz. De ampliori gratia, etc. the Reversion in Fee which the Queen had, shall pass or not? Secondly, Admitting that the Reversion doth not pass, then if the Fine levied by Andrew Bainton, 5 Eliz. to the Plaintiff, the Reversion being in the Queen, be a bar unto the issue in tail? For as unto the first Fine levied, 37 H. 8. which was without Proclamations, the same shall not bind the issue in tail, neither as to the right, nor as to the Entry, for it is not any discontinuance, because the Reversion is in the King; as of things which do not lie in discontinuance, as Rent, Common, etc. for such a Fine is a Fine at the Common Law, and not within the Statute of 4 H. 7. and such Fine is void against the issue: But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance, than such a Fine is not void, but voidable by Formedon: and therefore this Fine in the Case at Bar being levied without Proclamation of Lands entailed, whereof the Reversion is in the King at the time of the Fine levied, shall not bind the issue: and by such Fine the Conusee hath nothing but a Fee determinable upon the life of Tenant in tail, which Fee was forfeited to the Queen by the Attainder of the Lord Seymore, and that the Queen moved of pity, did restore the same to A. B. in recompense; for the Indentures of themselves were not sufficient to raise any use: See 1 Mariae, Dyer 96. As to the first point, it seems that nothing passed of the Reversion, for the Grant hath reference to the words, All her Right, Possession, etc. which came to her ratione attincturae, and all the residue of the Grant aught to have reference to that, to the ratione attincturae, which was the foundation of the whole Grant: and here the intent of the Queen was not to any other intent but only to restore A. B. to the said Manor, or to his former Estate in it; and nothing appears in the Letters Patents, by which it may appear, that the Queen was knowing of her Reversion which she had by descent, and therefore the same cannot pass by general words. If the Queen grants the Goods and Chattels of all those which have done any Trespass, for which vitam amittere debent, the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words: 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum, qualitercunque damnatorum, the same shall not extend to the Goods of him who is condemned of Treason: See 22 Ass. 49. So in our Case the Patent shall not serve to two intents, but to a restitution of the Manor, and then nothing passed by this Patent but the Fee determinable, which was conveyed to the Lord Seymore, and forfeited by his Attainder. Then we are to see, how after this grant the said A. B. is seized. And he said, That he shall be in of the said Fee determinable, and not of the Estate tail against his own Fine; and than if he be not seized by force of the Entail at the time of the Fine levied, 5 Eliz. the same Fine cannot bind the tail: But admit that at the time of the second Fine levied he was in of an Estate in tail, yet the same Fine shall not bar his issue: For first, this Fine cannot make any discontinuance, because that the Reversion in Fee is in the King, which is not touched by the Fine: See the Case of Sanders, where A. makes a Lease to begin at a day to come, and afterwards levies a Fine to a stranger with Proclamations; the five years pass, and afterwards at the day of the Commencement of the Lease the Lessee enters, his entry is lawful, and he shall not be bound by the non-claim. And so it was adjudged 21 Eliz between Sanders and Starky. After the making of the Statute of 4 H. 7. of Fines, it was much doubted, if the issues of common Tenants in tail should be bound by a Fine with Proclamation, forasmuch as upon the death of their Ancestors they were as new purchasers per formam doni: and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails; but there was no doubt of the Estate tail of the Gift of the King: and see betwixt Jackson and Darcy, Mich. 15 and 16 Elizab. Rot. 1747. in a Partitione facienda, the Case was, Tenant in tail, the Remainder to the King after the Statute of 32 H. 8. levied a Fine with Proclamations, and adjudged, that that should bind the issues: and the Act of 32 H. 8. doth not extend, but where the Reversion is in the King, but no mention is there of a Remainder, because the words of the said Act are general, of all Tenants in tail, the makers of the said Act perceiving that it might be a doubt, that the generality of the said words might exclude Estates tail of the Gift of the King, they have restrained the words in a special manner, as appeareth by the last words of the same Act: Nor to any Fines heretofore levied, or hereafter to be levied by any person or persons of any Manors, etc. before the levying of the said Fine to any of his or their Ancestors in tail by Letters Patents, or Act of Parliament, the Reversion whereof, at the time of the levying of such Fine, was in the King: and so such Estates are excepted, and that in such Cases where such Fines are levied, they shall be of such force as they should have been if the said Act had not been made; and therefore he conceived, it appeared at the said Parliament, That such Estate tails of the Gift of the King were not bound b● 4 H. 7. for otherwise that Proviso or Exception had been frivolous. Walmsley, Serjeant, to the contrary; and he agreed, That the first Fine doth not make any discontinuance; and yet he conceived, it is not altogether void against the issues before that they enter, for no Right remains in the Conusor against his Fine: and he conceived also that this clause, ex uberiori gratia nostra, did extend to pass more than passed before, for he conceived that the Queen intended more liberally, viz. the Reversion, for this same is not any matter of Prerogative, but this is a matter of interest which might even in the Case of the King pass out of the King by general words: And see 3 H. 6. 6 and 7 Br. Patents; A Grant of the King ex insinuatione shall not hinder the force of the words ex mero motu. And the opinion of the Court was, That the Reversion which was in the King did not pass by this Grant: For the scope of the whole Patent was, as was conceived, to grant the same only which the Queen had ratione attincturae. Anderson held the Patent insufficient, because that the Prohibition was not full and certain: Also he said, That ex speciali gratia, etc. would not help this Case, if it were well argued, for the Estate tail is not well recited, but only that he was seized de Statu haereditario, etc. so as the Queen was deceived. Periam, contrary; The Queen was apprised well of the mischief and Grant aforesaid, viz. of such Estate, with which he departed by the Fine. And as to the other point, it was the opinion of Walmsley, That the Fine with Proclamation did bind the Entail. And as to the Objection which hath been made, That the Conusor, at the time of the Fine levied, was not seized by force of the Entail, the same had been good matter to avoid a common Recovery, to allege such matter in the Tenant to the Praecipe, but not to this purpose: for if Tenant in tail levieth a Fine, although he was not seized at the time of the Fine levied by force of the Entail, yet such a Fine shall bind the issues: So if the Tenant in tail doth discontinue, and disseiseth the Discontinuee, and so levieth a Fine. And he conceived, That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. And see 19 H. 8. 6. and 7. where it is holden, That the issue in tail is bound by the Act of 4 H. 7. And whereas it hath been objected, That it doth not extend, but to such Fines which make a discontinuance at the Common Law; the same is not so: for if Tenant in tail of a Rent or Common levieth a Fine with Proclamation, it is very clear, that the issues shall be barred thereby: And he relied much upon the Book of 29 H. 8. Dyer. 32. Tenant in tail of the Gift of the King levyeth a Fine, or suffereth a common Recovery, although it be not a discontinuance, because the Reversion is in the King, yet it is a bar unto the issue. But note, That that was before the Statute of 34 H. 8. And see now Wiseman's Case, 27 Eliz. Co. 2. part. and see the Lord Stafford's Case, 7 Jacob. Co. 8 Reports, foe 78. CXCII. Pleadal 's Case. 21 Eliz. In the King's-Bench. THe Case was, That a man seized of Lands in fee, took a Lease by Indenture of the Herbage and Pawnage of the same Land: It was the Opinion of the whole Court, that the same was no Estoppel to him to claim the Soil or the Freehold: And it was said by Plowden, and agreed by the Court, That if the Father and Son be joint-tenants for an hundred years, and the Son takes a Lease of his Father of the Lands for fifteen years, to begin, etc. the same shall conclude the Son to claim the whole term or parcel of it by Survivor. CXCIII. 21 Eliz. In the Star-Chamber. NOte, That in the Star-Chamber it was resolved, by the Advice of many of the justices, That an Infant having levied a Fine, may declare the uses upon it, and such Declaration is good, notwithstanding his Nonage: and Mr. Plowden affirmed, 2 Co. 10, 42, 57 that so it was adjudged in his own Case, by which he lost Lands of the yearly value of 40 l. So a Declaration by a man in duresse is good, which Anderson denied. CXCIV. The Lord Awdley 's Case. 21 Eliz. In the Court of Chancery. THE Lord Awdley, 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset, Dy. 166, 324, 325. 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 follows in effect; viz. My Will is, 6 Co. Sir Ed. Cloer's Case. That my said Feoffees shall stand seized to the use, That the said Hoddy shall receive of the yearly Profits of the said Lands one hundred pounds, which he had lent 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 Bodies, etc. 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 it was the Opinion of divers of the justices and Sages of the Law, That 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 unto the use of the Feoffor and his Heirs, because that no consideration was, for which they should be seized to their own use; yet the same cannot make a new use unto the said Lord and his wife in tail, without conveying an Estate; for the wife is a stranger unto the land, and also to the other use. And it cannot be a Testament or last Will; for the Estate mentioned in the said Writing, aught to be made to the said Lord and his wife, who cannot take by his own Will. And this matter was depending in the Chancery; and the advice of the justices being there required, they did deliver their opinions, That by this Writing, no use was changed, nor any Estate vested in the said Lord and his wife; and a Decree was made accordingly, until proof might be made of such an Estate made. CXCU. Borough and Holcroft 's Case. 21 Eliz. In the King's Bench. Co. 3. Inst. 31. 4 Co. 45. IN an Appeal of Murder, by the son of the Lord Borough, of the death of his elder brother, Henry Borough, against Thomas Holcroft, who pleaded, That heretofore he had been indicted of the Murder of the said Henry Holcroft before J. S. Coroner of the Verge, and also Coroner of the Country of Middlesex, within which County the Verge was; and upon that indictment he was arraigned, and confessed the indictment, and prayed his Clergy, etc. and demanded judgement; If the Plaintiff should have this appeal? The Plaintiff, Replicando, said, by protestation, Nul tiel record, and for plea did demur in Law. Dalton, for the Plaintiff, took Exception to the plea, for the conclusion of it, viz. judgement if appeal; where it ought to be, judgement, if he shall be again put to answer: And he took a difference, where a matter is pleaded against the Plaintiff, to which the Plaintiff is party: As where a man pleads a Fine levied by the Plaintiff himself, there he shall conclude judgement if action; but where the Fine is pleaded levied by the Ancestors of the Plaintiff, there he shall plead, judgement, if against such Fine, etc. Vide, 9 H. 7. 19 At the common Law before the Statute of 3 H. 7. such conviction at the suit of the King did discharge the party convicted from farther trouble; but if the indictment upon which he was arraigned be insufficient, than it is not any plea. And here the indictment is insufficient; for by the Statute of Articuli super Chartas, cap. 3. the Coroner of the County, together with the Coroner of the King's Household shall do the Office which belongs to it, and send the roll, to which Office two Coroners are requisite; but here, in the taking of this inquisition there was but one person although two capacities, id est, Coroner of the County, and also Coroner of the Verge; and so the indictment was taken, Coram non Judice: See the Statute of the Star-Chamber, which is, That the Chancellor, etc. calling to them one Bishop, and one temporal Lord of the King's Council, etc. If the Chancellor be a Bishop; yet another Bishop ought to be called, etc. If I devise that my lands shall be sold by two Bishops, and J. S. hath two Bishoprics, yet his sale is not sufficient. Egerton, contrary, Although here is but one person, yet there are two Coroners: Quando duo jura concurrunt in una persona aequum est, ac si essent in diversis. At the common Law, before the Statute, De Articulis super Chartas, The Coroner of the Verge by himself might inquire of Murder; but because the King's Court oftentimes removed into another County, by reason whereof no enquiry could be made, for the remedying thereof, that Statute was made, which is in the affirmative, and doth not abridge the common Law before, and therefore it shall have a reasonable construction: See the Statute of West. 1. cap. 10, By which it is enacted, that sufficient men shall be chosen Coroners, of the most loyal and the most sage Knights, this Statute shall not be taken, Stricto sensu, that none shall be chosen Coroners, but Knights; but the Statute requires, that sufficient persons shall be chosen. As to the Statute of 3 H. 7. It is to be known, That the common Law [before acquitted] was a good Plea, and the cause was for the great regard that the common Law had to the life of a man; In which case a great mischief, as the Statute recites, did ensue, that to save the appeal of the party; they would not arraign the party within the year and day after the murder, within which time, the offender did compound with the party interessed; and so after the year expired, all the matter concerning the prosecution, at the King's suit, was put in oblivion: wherefore it was enacted, That such offender shall be within the year arraigned at the suit of the King; and if the party be acquitted at the King's suit, within the year and day, That the justices before whom, etc. should not set the party at large, but to remain in prison, or to let him to bail, until the year and the day be past; and within the said year and day, the wife, or next heir to the party slain may take their appeal against the party so acquitted or attainted, the said acquittal or attainder notwithstanding; and he said, that these words [person attainted] did not extend to person convicted; for they are two distinct conditions in Law; for attainder procures corruption of blood, but the same is not wrought by conviction: and every Treason imports in itself Felony; but yet notwithstanding they are distinct Offences: See 22 E. 4. Coron. 44. where it was ordered by all the justices of England, That none should be arraigned of the death of a man, at the suit of the King, within the year and day; so as the suit of the party be saved. And the justices counselled all men of Law so to do, and that the same be executed as a Law without alteration, upon which rule of the justices, arose an inconvenience; for after that order of the justices was known, The offender would practise with the party to whom the appeal by the Law belonged, to obtain from him a release for some sum of money, and then when the year and day passed, the heinousness of the murder was out of memory; This mischief being espied, was the occasion of the making of the Statute of 3 H. 7. But the said Statute doth not meet with our Case; but our Case is at the common Law, for this Statute extends only unto persons attainted; but a person convicted is not touched by it, and therefore being out of the words of the Statute, it shall be also out of the meaning of it; for being a penal Law, it shall be taken by equity, as all Statutes which give attaint shall be, Stricti juris, and shall not be taken by equity. It hath been objected, that the Statute de Frangentibus prisonam, 4 E. 1. hath been taken by equity, the same is not so; for it is not any penal Law, but the same mitigates the rigour of the common Law; for before that Statute, the breaking of the prison was Felony in every case, but now it is not Felony, but where the party was committed to prison for Felony, etc. CXCVI 21 Eliz. In the Common Pleas. IN a Formedon of a Manor, Dyer 291. 3 Len. 92. the Tenant pleaded joint-tenancy by Fine with J. S. The Demandant did aver the Tenant sole Tenant, as the Writ doth suppose, and upon that issue was taken, and found for the Demandant; upon which, a Writ of Error was brought, and Error assigned in this. That whereupon 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, etc. Southcote, At the common Law, If the Tenant had pleaded joint-tenancy by Deed, the Writ should abate without any averment; but that was remedied by 34 E. 1. but joint-tenancy by Fine did remain as it was at the common Law, for he hath punishment enough in that by that plea, if it be false, he hath by way of conclusion given the moiety of the Land in demand to him with whom he hath pleaded joint-tenancy; and the Law doth not intent that he would so slightly departed with his land for the abatement of a Writ: As in a Praecipe quod reddat, the Tenant acknowledgeth himself to be Villain to a stranger; the Writ shall abate without any averment, if Frank and of Frank Estate; for the Law presumes, that the Tenant would not enthral his condition. Wray, to the same intent: But the Demandant may confess and avoid the Fine, as to say, That he that levied the Fine was his disseisor, upon whom he had before entered, etc. And if Tenant in Fee-simple be impleaded, and he saith that he is Tenant for life, the remainder over to A. in Fee, and prays in aid of A. the Demandant shall not take averment, that the Tenant, the day of the Writ purchased, was seized in Fee. Note that in this fine joint-tenancy was pleaded but to parcel. It was holden by Wray and Southcot, that the whole Writ should abate; As in a Writ the misnosmer of 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 thing in demand be one entire thing, it shall abate the whole Writ. In this Case, the Demandant ought to have in his Writ de Forsprise of the land in demand, whereof the joint-tenancy by Fine is pleaded, per avail, and under the gift of which the Formedon is conceived, and therefore in respect of the title of the Demandant, it remains in right, parcel of the Manor, and therefore aught to be demanded accordingly with an Exception: But if A. give to B. a Manor, except ten acres in tail, there if after upon any discontinuance, the issue in tail have a Formedon, in such case there needs no exception, for the said ten acres were never after the gift, parcel of the Manor which was given in tail, for they were severed from the Manor upon the gift; but if land in demand was several, as twenty acres except two, an exception is not good, for he might demand eight acres: See E. 1. F. N. B. 866. Praecipe unam bovat. terrae, except a Seleon, and the Writ was abated, for every demand ought to be certain, but a Seleon is a parcel of land uncertain, as to quantity, in some places an acre, in some more, in some less. Another point was, That because the Tenant hath admitted and accepted this averment, (scil.) sole Tenant, as the Writ doth suppose; If the Court notwithstanding the admittance of the Tenant ought without exception of the party, Ex officio, to abate the Writ; and Wray conceived, that they should, for it is a positive Law; as if a woman brings 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 see 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 Writ, without exception to it, yet the Court shall abate the Writ, Ex officio, 11 H. 4. 198. and 38 H. 6. 30. CXCVII. 24 Eliz. In the King's Bench. Antea 150. More Rep. Saffron Walden's Case. THE Case was this: King Henry the 8. seized of certain lands in the right of his Duchy of Lancaster, Granted them unto another, Tenend. in Fee-farm, Reddend, dicto Dom. Regi, & haeredibus suis, aut illi cui de jure reddi debet 10 l. And if this land should be holden of the King in Capite, or holden of the Duchy, was the question? Egerton Solicitor general, argued much upon the Statute of 1 H. 4. by which the Duchy and possessions thereof were severed from the Crown: See Plowden in the Case of the Duchy of Lancaster, 213. And see ibid. the Statute of 1 H. 4. Entitled, Charta Regis, Hen. 4. 1. De separatione Ducatus Lancastr. à Corona; by which it is enacted, That the Duchy of Lancaster, taliter & tali modo deducatur, gubernetur & pertractetur, etc. ac si ad culmen dignitatis Regiae assumpti minime fuissemus: So as by that Act the Duchy is dis-joined from the Crown, and in such point as to possession, as it was in a common person. But the possession of the Duchy doth not bind the person of the King: as 10 H. 4. 7. The King brings an Action for certain Lands to him descended from his Uncle, the Duke of Lancaster, and the Writ was, Non omittas propter aliquam libertatem, and exception was taken to the Writ, because that such clause ought not to be in the King's Writ, but where the King sueth as King, but that Writ he sueth as Duke of Lancaster, but the exception, was not allowed; The King cannot sue otherwise, but as King: for the person of the King ought not to be measured according to his possession, so as it was a severance in order, survey, government and process, and not in respect of the person. But after the Statute of 1 H. 4. The said Act of Separation was repealed; and farther enacted, that the said King should hold the said Duchy to him and his heirs, Kings of England; so as thereby the Duchy is settled in the politic Body of the King: afterwards came the Statute of 1 H. 7. by which it is enacted, That the King shall hold the said Duchy, and the possessions thereof, in such manner and form, and so separated from the Crown as King Henry the fourth and King Henry the fifth did hold the same, so as the Duchy was devested out of the Body politic of the King where it was settled, 1 H. 4. and vested in the Body natural of the King so as the possession of the Duchy, as to their government, etc. are in the King, as they were in the Duke of Lancaster before he was King: and if the Duke of Lancaster had made a Feoffment, etc. the Feoffee should not hold of him, but of the King: So if the King himself maketh a Feoffment of Lands of the Duchy, the Feoffee shall hold of the King, etc. which see in the Duchy of Lancaster's Case, in the end of it: And he conceived, That notwithstanding the union of the Crown and the Duchy, yet the privity of the Tenure doth remain, being preserved by the said Act of 1 H. 4. Another matter was, That here, the Tenure reserved is Tenend. in feodi firma Reddend. 10 l. etc. And he said, that this Rent is not parcel of the Tenure, but rather a Rent-charge collateral to the Tenure: For in all Cases where there is a Tenure expressed in suit, or implied in Law before, there Reddendo following shall not make the thing rendered parcel of the Tenure, 3 Cro. 210, 211. but it shall be a Rent in gross; and here Tenend. in feodi firma, makes the Tenure, etc. and the Reddendo after shall not make the Rent reserved parcel of the Tenure: See the Case 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum, a man makes a Feoffment in Fee Tenend. de Dom. Capital. Feod. etc. Reddend. 10 s. Rent; here, because that the Tenure was reserved, Capital. Dom. feodi illius, this Rent reserved is not parcel of the Tenure, but a Rent in gross: King Edward the sixth gave certain Lands to Cranmer, Archbishop of Canterbury, Tenend. by the fifth part of a Knight's Fee, Reddend. inde 6 l. per ann. Cranmer made a Feoffment in Fee to the use of himself for life, and afterwards to the use of his eldest son in tail, the remainder to the right heirs of Cranmer, who is attainted of Treason, by which the remainder in Fee escheated to the King, by which the signory is gone. But it was adjudged, that notwithstanding that escheat, the Rent did remain, for the Rent was not parcel of the signory. Now this Rent being a thing newly created, and not parcel of the possessions of the Duchy in 1 H. 4. nor ever descended from any Ancestor of the King, being Duke of Lancaster, shall be accounted to be in the King in the right of his Crown, and so cannot pass by the Dutchy-seal: See the said Statute of 1 H. 4. and the King cannot enlarge the said Duchy, nor the possessions thereof beyond the possessions which were of the Duchy at the time of the making of the said Acts: As if J. S. seized in Fee is impleaded, and he saith, that he holds the Lands in demand for life, the remainder to the King in the right of his said Duchy; now the said remainder is vested in the King, not in the right of the said Duchy, but in the right of his Crown. The Villain of the King in the right of his Duchy of Lancaster, purchaseth Lands, the King seizeth, he shall be seized thereof in the right of his Crown, and not of the Duchy: The King grants Common out of certain Lands parcel of his said Duchy, and afterwards makes a Feoffment of the said Lands to another, the Grantee of the Common dieth without heir, so as the Common escheats to him; now he shall have the Common in the right of the Crown and not of the Duchy; so although it is said, That the Rent shall follow the nature of the Land out of which, etc. yet the same is but to some intents, and not to every intent: See the Statute of 2 and 3 Phil. & Ma. cap. 20. by which it is enacted, That all the Lands which have been granted or severed from the Duchy to any person or persons, and after such grant, have come or reverted to the King in possession, reversion or remainder, or otherwise by attainder, escheat, forfeiture, etc. shall for ever be united to the said Duchy, and shall be adjudged and esteemed as part and member of the same; which proves that such Lands were not holden of the King, as Duke of Lancaster, but as King; for if they had been holden of the Duchy upon the escheat, they should be parcel of the Duchy again, without help of that Statute. See the special Reservation; Reddendo Domino Regi, & haeredibus suis, aut illi cui de jure reddi debet, etc. Now, when the King grants the signory to the Lord Audley, it was in the Election of the Tertenant, to whom he would pay the Rent, if it had been in the Case of a common person; but it is otherwise in the Case of the King: As if A. holdeth of two several Lords by owel Feoffment, and dieth, his heir within age; the Lord which first gets the Ward shall have him; but in the Case of the King it is otherwise: Plowden, The King is not bound by the Statute of West. 3. But in this Case, in the making of this Feoffment with this Tenend. & Reddend. the Feoffee shall hold of the King as of his Duchy; for all grants of the King savour of the person of the King; and then his Prerogative wrapped in the person, shall guide the same: and see the Statute of West. 3. extends to all who make Feoffments, Tenend. de Feoffatoribus; but the King is not Tenant to any one. And if the King be seized of an Advowson in the right of his Duchy, and the same becomes void, and the King presents to the same, he may repeal his presentation: and he vouched divers precedents of Patents made to many great Lords, to hold of the Duchy, and also to hold of others: And the King by his Dutchy-seal may give Lands in Mortmain. And he argued, That this Rent, although newly created, yet in so much as it came, and accrued in respect of the Land which was parcel of the Duchy, it should be accounted also parcel of the Duchy; as if before the Statute of West. 3. A. seized of Lands in Fee, of the part of his father makes a Feoffment in Fee, Tenend. by such services, etc. the same signory shall go to the heirs of the part of the father, in lieu of which the signory is come: Tenant in tail after the Statute of 32 H. 8. makes a Lease for years, according to the said Act, rendering Rend to him and his heirs, it shall be intended, heirs in tail. It was adjourned. CXCVIII Forster and Walker 's Case. Pasch. 26 Eliz. In the King's-Bench. IN an Ejectione firmae, by Foster against Walker, the Case was, 3 Cro. 106. Shepherd's Touchstone of Conve●…ances, 416. That Richard Meager was seized of a house in London: and 6 E. 6. he devised the same to his Wife for life, the remainder to John his son in tail, the remainder to the Master and Wardens of the Cordwaynors in London, and died; the Wife entered and died, John died, The Master, Wardens and Commonalty of the Cordwaynors entered, and leased the Plaintiff upon whom the heir general of the Devisor did enter. The only question was, inasmuch as the Cordwaynors of London are incorporated by the name of Master and Wardens and Commonalty of Cordwaynors, If this devise made to them by the name of Master and Wardens of the Cordwaynors of London be good or not? It was argued by Daniel, that the Devise by the manner was good enough; and he insisted much upon the favour which the Law gives to Wills, and to Legatees in the Devises and construction of them, even in Devises and Grants to Corporations: and as to Grants to Corporations, he cited the Case of the Dean and Chapter of Norwich: Decanus & Capitulum sanctae & individuae Trinit. and they make a Lease, leaving out these words [sanctae & individuae] and yet held the Lease was good, notwithstanding that, for the words left out, are not words of substance of the name, but for the beauty and ornament of it: But in the Case of Devise, if the name be mistaken in matter of substance, yet if upon the Devise the intent of the Devisor sufficiently appeareth, it is good enough: for the intent of the Devisor shall guide the Devise, and therefore by Devise, the Fee-simple shall pass without the word [Heirs.] And he said, that the opinion of Wray, chief justice, was in the Case of the Dean of Paul's: If I devise that my Executors shall assign my Lands to J. S. the same, implicative, is a Devise of the Lands themselves to my Executors; for otherwise they could not assign. So, if I will and devise, That A. shall pay yearly out of my Manor of D. to J. S. 10 l. the same is a good Devise of the Lands to A. So if in the Case at Bar this house had been devised to the Cordwaynors by the name of the Society of Cordwaynors, such Devise had been good enough: Cooper contrary; and he said, That the intent of the Devisor ought to agree with the Law, otherwise the judges are not to regard it in point of judgement; and he put the Case of 39 H. 6. 10. 1 Rolls 616. A. deviseth his Lands, and afterwards is disseised, and before any entry dieth; now, notwithstanding the intent of the Devisor, the Devise is void; and he said, The defect of a Will in words, in making of an Estate shall be supplied by intent, but the defect in words, in naming of the Devisor or Devisee shall never be supplied, See 49 E. 3. 3. & 4. the Case of Whitavers. And he cited a Case, 25 H. 8. A stranger of the Low-countries being made a Denizen in England, returned into his Country, and dwelling there became sick; and in making of his Will, he was advised by Council, that by Devise of all his goods, his lands deviseable would pass, and therefore by such words he declared his Will with the intention aforesaid; (scil.) to pass his Lands, and died, and afterwards the States of the Low-countries wrote unto King Henry the 8. acquainting him with the intention of the Devisor, and also of the opinion of their Laws there upon the said Will, and all in favour of the Devisee; whereupon the King referred the consideration of the matter to Norwick, than Lord chief justice, who declared his opinion to the King to be, That by that Devise, the Lands did not pass, notwithstanding the intent of the Devisor. CXCIX. Crabdell 's Case. Pasch. 26 Eliz. In the King's-Bench. CRabdell was bound by Recognizance to his good behaviour; upon which the Queen brought a Scire facias, and surmised, that after the Recognizance acknowledged, the said Crabdell was arrested and taken by the Constable for suspicion of Felony, and of his own wrong escaped: It was objected on the part of Crabdell, because it is not alleged by matter in fact, that a Felony was committed. But the whole Court was of a contrary opinion; For it is not material, if the Felony were committed or not; for if a Subject be arrested by a lawful Officer, it is not lawful for him to escape; but he ought to stand to the Law, and to answer unto the matter with which he is charged. And so Crabdell was forced to answer. CC. Basset and Prowe 's Case. Pasch. 26 Eliz. In the King's-Bench. IN Debt upon a Bond, the Case was, That Basset was bound with Prow as his surety, to one Preston, in a Bond of 500 l. and that was upon a corrupt and usurious contract against the Statute; and Prowe was bound unto the Plaintiff in a Bond as a counterbond, to save the Plaintiff harmless from the said Bond of 500 l. Basset is sued by Preston upon the said Bond, and so damnified; and thereupon sued Prow upon the counterbond, 1 Cro. 588, 642, 643. 3 Len. 63. Goldsb. 174. who pleaded against Basset, the Statute of Usury, pretending that all assurances depending upon such usurious contract, as void by the Statute; but by the opinion of Wray, chief justice, the same is no Plea, for the Statute is, That all Bonds, collateral assurances made for the payment of Money lent upon usury, shall be utterly void; But the Bond here upon which the Action is brought, was not for the payment of the Money lent, but for the indemnity of the surety. CCI The Vicountess Bindon 's Case. Pasch. 26 Eliz. In the Exchequer. More 213. 1 Cro. 250, 251, 252. THE Executors of Thomas, late Viscount Bindon, brought Detinue in the Exchequer against the Widow of the said Viscount, and declared upon the detainer of certain jewels, The Defendant did justify the detainer of them as her Parophornalia: And it was said by Manwood, chief Baron, That Parophorn. aught to be allowed unto a Widow having regard unto her degree; and here the Husband of the Defendant being a Viscount, 500 Marks is a good allowance for such matter. CCII Offley and Johnson 's Case. Pasch. 26 Eliz. In the King's-Bench. More 136. OFfley and Johnson were bound as sureties with one A. to B. who recovered against Johnson in London, and had Execution against him; and now Johnson sued Offley, to have of him contribution to the said Execution, ut uterque eorum oneretur pro rata, according to the custom of London: Offley removed the cause by privilege into the King's-Bench, whereupon came Johnson, and prayed a Procedendo; and because upon this matter no Action lieth by the course of the Common Law, but only by custom in such cities, The cause was remanded; Hob. 264. More 135. 3 Len. 148. for otherwise the Plaintiff should be without remedy: See the Book of Entries, 160. CCIII. Litchfield and Cage 's Case. Pasch. 26 Eliz. In the King's Bench. IN an Ejectione firmae, the parties were at issue; 3 Len. 100 and by the order of the Court, the Trial was stayed, and yet the Plaintiff against the Order, did privily obtain a Nisi prius, of which, Gawdy, justice, being informed of it after the Term, awarded a Supersedeas unto the justices of Assize, before whom, etc. and yet notwithstanding that, the Enquest at the instance of the Plaintiff was taken, and found for the Plaintiff; and all this matter was showed to the Court in the King's-Bench, and there examined and proved, and it was ordered by the Court, that the Verdict should not be entered of Record, nor any judgement upon it: And so it was put in ure in a Case between Vernon and Fowler. And then the Plaintiffs Council took exception to the Supersedeas, because it was not subscribed with the hand of Gawdy, but, non allocatur; for the Seal is sufficient. CCIU Scott 's Case. Pasch. 26 Eliz. In the King's Bench. WIlliam Scott was indicted upon the Statute of 23 Eliz. of Recusants, by the name of William Scott of Southwark, Gent. and upon that Indictment judgement given for the Queen; upon which Scott brought a Writ of Error, and assigned for Error: That in the Indictment Scott is not named of any Parish, but generally of Southwark; for within Southward, there are divers Parishes, and by the said Statute it is ordained that the penalties accrueing by the said Statute ought to be divided in three parts, whereof one part is to be applied to the relief of the poor resident in the Parish where the offence was committed, and therefore it ought to appear upon the Indictment of what Parish the party Indicted is, or otherwise, Non potest constare Curiae, to which Parish the third part of the Penalty doth belong, so that full execution may be made according to the Statute: But the whole Court was clear of opinion, That the Indictment is good enough, notwithstanding that Exception; for all the penalty which accrues by the said Statute, belongs first to the Queen; viz. a third part thereof to her own use, another third part for the relief, ut supra, to be delivered by Warrant by the Officers of the Receipt of the Exchequer. And afterwards the Inhabitants of the Parish in which the offence was committed, are to sue in the Exchequer for their third part of the penalty, and surmise in their Bill, that the offence was committed within their Parish; and Rule was entered accordingly. CCV. Gerrard 's Case. Pasch. 26 Eliz. In the Common Pleas. 3 Len. 98. GErrard, Master of the Rolls, presented Chatterton, Bishop of Chester, to the Church of Bangor; to which Church, one Chamber's also presented his Clerk, by which several presentments the said Church became Litigious: The Archbishop of York being loci illius Ordinarius, awarded a Jure Patronatus, etc. depending which, the Archbishop admitted the said Bishop; whereupon Chambers Libelled in the Spiritual Court against the said Bishop, because the said Archbishop, Dicto Episcopo plus aequo favore admisit dictum Episcopum, pendente the Jure Patronatus, in which case, by the Law of the Church, the admittance is void; For, Light pendente, nihil movetur: and now came the said Bishop, and prayed upon that matter a Prohibition, which was granted because that the right of the Patronage came in debate, after which came the said Chambers, and prayed a consultation, because he did not meddle with the right of the Patronage, but only with the tortuous admittance. To which it was said by the Court, That the awarding of the Jure Patronatus, is not a thing of necessity, but at the will of the Ordinary, and so for his better instruction; but if he will at his peril, take notice of the right of the Patronage, he may admit which of them he will, without a Jure Patronatus awarded: And it may be in this Case, that after the Jure Patronatus awarded, and before any Verdict given upon it, the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage, and thereupon admitted the Clerk, etc. and if he was deceived to subject himself unto a Quare Impedit, whereof he had discharged himself, if he had attended the Verdict in the Jure Patronatus: and by the clear opinion of the Court, the Consultation was denied. CCVI Barker and Taylor 's Case. Mich. 29 & 30 Eliz. In the Common Pleas. THE Case was; That a woman, Tenant in tail, within the Statute of 11 H. 7. accepted of a Fine, Sur Conusans de droit come ceo, etc. and by the same Fine, rendered back the lands to the Conusor for 100 years. It was moved, If this conveyance and disposition be within the penalty of the said Statute; for the Statute speaks of Discontinuances, etc. And it was the clear opinion of the whole Court, That it is within the Statute; for by such practice, the meaning of the Statute might be defeated: 3 Co. 51. and if such a render for 100 years should be good, by the same reason, it might be for 1000 years, which is like mischievous, and as dangerous unto him in the reddition, as a Discontinuance: And by Rhodes, justice, It hath been adjudged, That if a woman, who hath Title of Dower, before that she be endowed, will enter, and levy a Fine, that the same is within the said Statute, and yet she is not Tenant in Dower: See Dyer, 5. Ma. 140. Penycock's Case; and see now, 36 Eliz. Sir George Brown's Case adjudged accordingly. CCVII Morris and Webber 's Case. Trin. 29 Eliz. In the Common Pleas. IN an Ejectione firmae, by George Morris against Webber, alias Turnor, 5 Co. 98. the Plaintiff declared upon a Lease by Humphrey Bury, etc. And upon Not guilty, the jury found this special matter: That Hen. Bury was seized, Et cepit in uxorem quandam Willmottam Gifford. 4 Mariae. And afterwards: 1 Eliz. she Libelled in the Spiritual Court against the said Henry, in causa divortii de nullitate matrimonii; and found upon the Libel, In haec verba, and all the sentence upon it; viz. In Dei Nomine, Amen. Per depositiones & examinationes Medicorum, & aliorum fide dignorum, & honestarum, & expertarum matronarum comperimus & invenimus: Quod praedict. Henr. & Willmotta legit. aetatis & plenae pubert. exist. per duos annos integros simul cohabitaverunt, & in uno lecto concubuerunt, & licet dict. Willmotta operam liberis dare cupierit, nunquam tamen per carnalem copulam cum dicto Henrico conjungi, aut ab illo cognosci potuit, aut potest, idque propter vitium perpetuae frigiditatis & naturae impotentiae generandi, Quae nulla medicorum opera curari pot, idque praedict. Humphrid. saepius confessus est, se nunquam cum praedicta Willmotta tanquam virum cum uxore conjunctum fuisse, aut conjungi potuisse. Igitur invocato primitus Dei nomine; Matrimonium praedict. irritari, cessari quatenuscunque de facto processit, cassum, irritum, nullumque in Lege, Juribus juris omnino career, & career debere decernimus, & declaramus, ipsosque quatenus sunt de facto matrimonialiter ad invicem conjuncti a vinculo Matrimonii separamus, etc. Humphrey made a Feoffment in Fee unto the use of himself for life, and after to the use of the first, or eldest son of the body of the said Henry in tail. Willmot married Cary, Henry took to wife Phillippam Mountjoy scientem Matrimonii praedict. & definitivae sententiae praedict. & durantibus ambobus Matrimoniis, tam inter dict. Cary & Willmotta, quam inter dictos Henricum & Phillippam, dicta Phillippa exitum habuit per dict. Henricum, Humphrey the Lessor, upon which Lease the Plaintiff declared, Humphrey died: Henry entered, and leased to the Plaintiff. Shuttleworth, Serjeant, argued for the Plaintiff, That this Divorce not reversed or undone by appeal, or otherwise, should stand in force, and according to it the Law of the Land should judge: See 47 E. 3. 17. Casu ultimo. Five manner of Divorces are mentioned: 1 Causa professionis: 2 Praecontractus: 3 Consanguinitatis: 4 Affinitatis: 5 Frigiditatis; upon a Divorce, Causa professionis, the wife shall be endowed, and the heir shall inherit, but in the other not. And the principal Cause is reported by the Lord Dyer, 2 Eliz. 179. where Cary and Willmott levying a Fine of the lands of Willmott, as husband and wife; and it was moved, That such Fine ought not to be engrossed, because that now the Divorce is avoided; for Henry in his second marriage hath issue, therefore there is no perpetua frigiditas, etc. but at the last it was engrossed, because the sentence of the Divorce doth continue in its force, and then Humphrey, born in the second marriage, is the first son of Henry lawfully begotten, and so capable of the use to him limited upon the Feoffment of Henry 22 E. 4 Fitz. Consultation, 51. by Catesby: where my father and mother are divorced without lawful cause, and afterwards they marry themselves elsewhere, and die, the said Divorce, as long as it is in force shall bind me in point of inheritance, and I cannot have an Action as heir, etc. during the Divorce, is in force: For the Divorce being a spiritual judgement shall not be reform but in the spiritual Court; and therefore this sentence of Divorce, Causa perpetuae frigiditatis, as long as it is in force not repealed or reversed, shall bind all persons: But in some cases, such a Divorce shall not disable the party to sue; as if a man bringeth an Action, De muliere abducta cum bonis viri, where after the trespass committed, the husband and wife are divorced, yet the Action lieth, for this Action is not in the right, but in possession only, and in such Action, Never accoupled in legal Matrimony, is not any plea, but the Defendant ought to answer to the possession, Not his wife; for although they are divorced, yet the Action lieth; and if judgement is given in the spiritual Courts, the Courts of the King shall receive and admit of them, as long as they are in their force. The Abbot of Fountain's Case, 9 H. 6. 32. the custom of the Abbey was, That at every vacation of the Abbot, the Monks should proceed to a new Election, and that he who should be chosen by the greater number of the Monks, should be Abbot: and the Case was, That upon such avoidance, one A. was elected by the greater number of voices, (scil.) 22 Monks. And B. was chosen by the lesser number, (scil.) 20 Monks; but notwithstanding that, B. entered and carried himself as Abbot, by the Institution of the Visitor, and made a Deed by consent of the Covent, and died; it was holden, That the said Deed should bind the House: for here is a spiritual Act, (scil.) the Institution of the Visitor, which being in force, shall bind us, and our Law, 34 H. 6. 38. upon contention betwixt two Patrons, claiming the presentment unto a Church, the Bishop awarded, jure Patronatus, which found for one of them, upon which the Bishop admitted the Clerk of him for whom it was found by the jure Patronatus; and afterwards, the other party brought a Quare impedit, and it was found for him: Now this judicial Act done by the Bishop, shall excuse the Bishop from any disturbance. Fenner, Serjeant, contrary, Although that the sentence of this Divorce be set down in peremptory and final terms, as matrimonium cassum, irritum, nullum, yet our Law shall respect the cause and ground of it, (scil.) Perpetua frigiditas, etc. and now it appeareth by the success of the second marriage, (scil.) the issue Humphrey, that the cause and matter upon which the Divorce was grounded, etc. was an offence of the time, and not of nature for he is now recovered; and in as much as the Church hath erred in the sentence of this divorce, which error is now apparent; this Court shall adjudge according to the truth of the matter, as the spiritual Law ought to have adjudged, and not as they have adjudged: And he cited Fox's Case, 16 Eliz. The said Fox being Parson of a Church, was deprived in the Parliament time for incontinency, and by the same Parliament, all incontinencies were pardoned; Now upon the matter, we are to adjudge this deprivation merely void without any other spiritual act. At another day, the Case was argued by Walmsley Sergeant, That the sentence definitive of the spiritual Court, in cause of divorce, causa frigiditatis, should stand; and he argued much in what manner the Law of the Church, and the Law of the Law should determine marriage: and he argued that the right of marriage, was determinable by the spiritual Law; and he said, that such sentences ought to be passed by our Law: and taken notice of; and therefore he who pleads a Divorce, aught to show before what judge the Divorce is had, to the intent the judges may know to what persons they shall write for the trial of it; and it appears in our books, That our Law takes upon it the Conusance of the competency of an Ecclesiastical judge; which see, 2 E. 4. 15 and 16. The judges of the temporal Courts of the King, have determined, That the Pope is not a competent judge within this Realm: and it is true, the Common Law doth yield unto the Law of the Church the trial and determination of the right of marriage; but the trial of the possession of the marriage retains to itself: As if an Infant marrieth within the age of consent, and afterwards at full age of consent, doth disagree, now the common Law shall determine that the same is not any marriage: So 11 H. 4. 167. The temporal Court shall adjudge upon marriage in fact and in possession, but if the party will plead, 1 Len. 53, 181. 3 Len. 129. That they were never accoupled in lawful matrimony, a Writ shall go unto the Bishop to certify the same; and in trespass, De muliere abducta cum bonis viri, and in Cui in vita, etc. this issue, not his Wife, is to be tried by the temporal Court of the King: for the right of the marriage is not in question, but it is sufficient, if it were a marriage in fact and in possession: See 44 Ass. 12. & 13. and see 21 H. 7. 39 The temporal Court shall determine of the marriage, if void or voidable: A Deacon marrieth a Wife, that marriage is not void, so of a Priest; but if a man marrieth a Nun, the marriage is void: But in our Case, here is a sentence definitive, in a cause of Divorce, in which Case it doth not belong to us to examine the cause, but be the Divorce right or wrong, it shall stand, etc. 10 E. 3. Bar. 296. Nisi sit quoad thor. tantum, vel causa castitatis: And see by Shelley, 28 H. 8. 13. If they of the spiritual Court give judgement in any cause, be it true or false, until it be defeated or reversed, it shall bind all the world: See 22 E. 4. Fitz. Consultation 5. Corbet's Case, 4 H. 7. 14. by Oxenbridge, 18 E. 4. 30. by Chock; and 9 E. 4. 24. He who pleads a Divorce, aught to show before what judge the Divorce was had; but that is not to examine the matter, but to know to what person the Court shall write for the trial of it. It is true, that in case of Resignation and Deprivation, but in case of Divorce, the cause thereof aught to be showed; for some Divorces dissolve the marriage utterly, and do bastardise the issue, and disable the Wife to be endowed; and some Divorces do not dissolve it: as that which is but à thoro & mensa, 11 H. 7. 27. But generally, in spiritual judgements, the causes of them do not fall in judgement in any temporal Court: 3 H. 4. 34. An Excommengement pleaded without showing of any cause; and although in our Case, the cause of this Divorce being for Frigidity, Sublata jam causa toleretur effectus; and now, the party in whom such frigidity is assigned, is become whole, as appeareth by his success in his second marriage, having now issue; yet we ought not to regard that, for than we should resort unto the cause of the Divorce, with which we are not to meddle. Gawdy, Serjeant, to the contrary: And first he confessed, that the determination of the right of marriage doth belong unto the spiritual Court; But as unto the Case in question, (scil.) the Divorce in causa frigiditatis, it appeareth by 44 Ass. 13. by Knivet, That the party may receive his Nature, in which case he may have again his Wife, and there need not in such case a new marriage; And because that here it appeareth, That Bury hath recovered his Nature forasmuch as he hath now issue by another Wife, the Divorce is become of no force, which see Dyer 2 Eliz. 179. where the Case now at the Bar was in debate; Where a Woman inheretrix took a Husband, from whom she was divorced, causa frigiditatis, the Wife afterwards was married to Carl, by whom she had issue, and gave all her Inheritance to her said second Husband: and the first Husband also took a Wife, of whom he had issue; in that Case, the opinion of the Doctors was, That the first Husband and his Wife should be compelled to cohabite together as Man and Wife, because Ecclesia decepta fuit in priore judicio. Anderson, That which we have argued is very clear; (scil.) That the Ecclesiastical Court hath authority to determine the right of marriage; But the point of this Case is, if this judgement of Divorce being given for cause of Frigidity which was adjudged to be perpetual; and now by matter subsequent it appeareth that the party is not frigidus, but he hath recovered his Nature, if the Divorce shall be accounted ipso facto void, without other circumstance of the spiritual Law: and although their sentence be definitive in terms, yet upon this special matter, ex post facto, if the force thereof shall fail. And I have conferred with many learned in the Canon Law, which are of such opinion; and of that opinion was Doctor Dale; and therefore it is convenient, that your Clients, each of them do retain one who is learned in the said Law, who can inform us what their Law is. And Rhodes, justice, agreed in this Case to what the Lord Anderson said, and put the Case which was in the King's-Bench, 16 Eliz. Foxe's Case, which is before vouched, and it was adjourned. And after, at another day, by the appointment of the justices, the Case was argued in Court by the Civilians and Canonists: Goldingham, on the part of the Plaintiff, and Steward on the part of the Defendant: And first it was said on the Plaintiff's part, That by the sentence, all the matter, transit in rem judicatam, and therefore we shall not resort to the matter censured, the sentence being in its force. And as to that, it was answered by Steward, That transit in rem judicatam, but not in case of marriage, and in the like cases, where vertitur periculum animae; for in such cases the sentences are subject to the success; as if after it appeareth, Ecclesiam fuisse deceptam per errorem licet probabilem (ut illi loquuntur) for than periculum animae vertitur, for than they should continue their Adultery, unless the sentence of the Church be annulled. Goldingham, It transit in rem judicatam, non quoad instantiam, non quoad causam: so that as long as the sentence is in force, it is causa judicata; yet the cause is subject to the censure of the Church. Steward, in our Case here, all our Books are, Matrimonium sit nullum: Goldingham, The words are also in such, reparabitur matrimonium, in which it is implied, that some solemnity of the holy Church is requisite in such reparation of marriage. Steward, where a man is divorced, causa frigiditatis, it is prohibited by such sentence that he shall not marry again, and if he doth marry, he is holden in our Law perjured, and an Adulterer; and to that purpose he cited divers authorities of the Canon Law. Goldingham, This sentence is not properly a Divorce, for here was never properly a marriage: as in Cases the precontract. Divorce upon that cannot be said properly a Divorce, but a sentence of the Church upon the error of the parties: and he put many degrees of impositions in such cases, Perpetua frigiditas, & naturalis impotentia generandi; frigiditas ex malefacio: i. e. quoad unam aliquam personam, and many others, quae possunt matrimonium contrah, & dirimere contractum: and the sentences which in our Law, are contra jus constitutionis: as where there is not any Citation, Declaration, or that the sentence is of another thing than that which is contained in the Libel, in such cases the sentence is utterly void; but sentences there given, contra jus partis, are voidable only; See Panormit. fraternitatis: Si notory apparet sententiam Divortii fuisse injustam, libet revocari, non obstante quod non fuerit appellat. Sententia cessat cum notorie constat de injustitia: Et in Institutionibus juris. Can. 189. Si vir causetur arctitudinem in muliere, per quam non est habilis ad coeundum, & ex eo separatur, Si mulier postea aliquem invenierit qui seras reserare possit, ad primum conjugium redire compellandi sunt: vid. corpus Canon. 357. conjugium confirmatur officio, sed postquam confirmatur officio non licet viro uxorem dimittere, nec uxori à viro discedere nisi causa fornicationis, verum antequam confirmatur impossibilitas officii solvit vinculum conjugii: And Panorm. fratern. propter Arctitudinem mulieris, si apparet quod praeter divinum miraculum absque periculo corporis habilis reddi non possit, seperentur: matrimonium tamen redintegrabitur si post appareat Ecclesiam fuisse deceptam: Per matronarum visum datum fuit intelligi quod nunquam potuit esse mater, & eam ob causam divortium inter eos celebrat. fuit, mulier virum cepit, qui seras reseravit, sententiam divortii per errorem licet probabilem novimus esse prolatam, cum patet ex post facto quod ipsa cognoscibilis erat illi cujus semen commiscetur, & ideo inter ipsam & primum virum matrimonium extitisse, Quare inter eam & secundum conjugem matrimonium non esse, etc. Eosque praecipimus ab invicem seperari. Vid. secundum partem Summae Sylvestrianae. Si Ecclesia sit decepta in hoc quod ille in quo erat impedimentum carnalem copulam cum alia perfecerit, redintegrabitur praecedens matrimonium, & dirimetur secundum, quamvis de sententia Ecclesiae factam. Et alibi: Si Ecclesia se deceptam invenierit ex hoc quod impedimentum quod judicavit perpetuum, apparet temporale, redintegrabitur primum matrimonium, etc. And afterwards the Case was adjourned. Afterwards, that is to say, Mich. 30 and 31 Eliz. the Case was moved again, and judgement was prayed for the Plaintiff; and then the Lord Anderson, Ex assensu sociorum, commanded that judgement should be entered for the Plaintiff; and shown unto the Council of both parties, That about the Certificate, which the four Doctors have showed unto us, of their opinions upon the point, we ourselves have conferred with the said Doctors, who have given us their answers, That the said sentence of Divorce being yet in force, not reversed is peremptory, and not subject to the success: and although in the examinations and depositions taken in the Ecclesiastical Court, no matter appeareth, upon which such peremptory Divorce might be granted, yet it might be, as we are informed by the said Doctors, that upon the examination of Physicians and Matrons, sufficient matter did appear to the said Ecclesiastical judges, (which for modesty sake ought not to be entered of Record) and that appeareth within the sentence; i Habito sermone cum matronis & medicis, which speech not entered of Record (causa qua supra) might be the cause that induced the Ecclesiastical judges to give sentence for the Divorce, notwithstanding that the matter within the Record be too general to prove, naturalem frigiditatem generandi, but rather maleficium; and afterwards judgement was given for the Plaintiff, and so the sentence is bound by the Divorce, as long as the sentence doth continue in force: See this Case in Coke, 5 Part. Where upon a Writ of Error brought, 41 Eliz. the judgement was affirmed. CCVIII. Gittinson and Tyrrel 's Case. Trin. 29 Eliz. In the Common-Pleas. GIttinson brought an Action of Debt against Tyrrel, Warden of the Fleet, by a Bill of Privilege, but he would not appear; and the Court was in great doubt, what remedy the Plaintiff hath to compel the Defendant to appear. For he cannot be forejudged the Court, because he hath an Estate of Inheritance in the said Office; And afterwards it was surmised to the Court, That the said Tyrrel had made a Lease of his said Office to another for three years, and then the Court was clear of opinion, That the said Tyrrel should not have the Privilege; for now during the Lease, he is not Officer, but the Lessee. CCIX Harris and the Lord Mountjoy 's Case. Trin. 29 Eliz. In the Common-Pleas. HArris affirmed a plaint of Debt in the Guildhall in London, Dalton's Off. of Sher. 105. against the Lord Mountjoy, and made an Attachment of the goods of the said Lord in the hands of Sir Drew Drewrie; The Lord removed the matter into the Common-Pleas, by a Writ of Privilege; If now the said Lord shall find Bail was the question, because that he is a Lord of the Parliament, etc. And the opinion of the whole Court was, that he should find Bail, for that is the course of the Court, whosoever is party. And by Anderson, admitting the Law to be, That the Body of a Lord of Parliament shall not be taken in Execution (which I do not believe) yet notwithstanding that Bail shall be found in such case: For the condition of Bail doth consist upon two points: First, that he render his Body to Prison in Execution, if judgement be given against him. Secondly, or to pay the condemnation: And therefore if the Body of a Baron of Parliament is not subject to Execution, yet the Bail shall stand for the second; i e. to pay the condemnation; and all the justices were of clear opinion, That for Execution upon a Statute-staple; Merchant, upon the Statute of Acton Burnel, or upon the Statute of 23 H. 8. The Body of a Baron of Parliament shall be taken in Execution; for by these Statutes, such persons were not exempted. CCX. Trin. 29 Eliz. In the Common-Pleas. NOTE, It was said, That the division of a great Meadow into many parcels, by making of Ditches, is not waste; for the Meadow may be the better for it; and it is for the profit and ease of the occupiers of it: Hob. 234. And by Windham and Rhodes, justices, If a Termor converteth a Meadow into a Hop-garden, the same is not waste, for it is employed to a greater profit, and it may be a Meadow again: Periam, justice, Although it be a greater profit, yet it is also with greater labour and charges; And the conversion of a Meadow into an Orchard is waste, although it may be to the greater profit of the occupier. CCXI Mich. 29 & 30 Eliz. In the Common-Pleas. IN a Replevin, the Defendant avowed for damage pheasant, and upon issue joined, it was found for the avowant, and damages assessed; and now issued a Retorno habendo, upon which the Sheriff did return, Averia elongata, whereupon a Withernam was awarded, and now came the Plaintiff and tendered in Court the damages assessed by the jury, and prayed stay of the Withernam, and threw the Moneys into Court; but the whole Court was clear against it, for in this Case the Plaintiff ought to pay a Fine, because he had essoigned the , which is a contempt; wherefore the Court assessed a Fine of three shillings four pence upon the Plaintiff, and then the Plaintiff had his Prayer. CCXII Shrewsbury and the Inhabitants of the Hundred of Ashton. Pasch. 29 Eliz. In the Common-Pleas. AN Action upon the Statute of Hue and Cry, was brought by Shrewsbury against the Inhabitants of the Hundred, of the three Hundreds de Ashton in the County of Bucks: It was moved on the part of the Defendants, That if upon such Hue and Cry the Inhabitants do their endeavours, as much as in them is, to follow and take the Malefactors, and yet they cannot apprehend them, that in reason they ought not to be charged by the said Statute. But the whole Court was strongly against it: And by Anderson, The Inhabitants of the Hundred, in which the Robbery was done, are bound to apprehend the Felons, or 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 follow the Felons without any such instruction, and after the Enquest was taken, and gave a Verdict in this manner: That whereas 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, is a Lane within the said Hundred; and that the one side of the said Lane is within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done in the side of the said Lane, which was in the Parish of S. and prayed the opinion of the Court upon that matter. And the Court was clear of opinion, That notwithstanding that Exception, the Plaintiff should have judgement; for here is the right Hundred which ought to be charged; and the mistaking of the Parish is not to any purpose. But than it was moved on the part of the Plaintiff; that for as much as the Verdict aforesaid was special, by reason of the doubt which the jurors conceived upon the mistaking of the Parish, in the Plaintiff's Declaration, That the charges of the jurors should be indifferently born by both parties, as the course is in cases of special Verdicts; but the whole Court was clear against that, and commanded that the Plaintiff alone should pay the said charges, for the matter here found specially is not any doubt; but out of all question, for it is clear that the Action is well brought, for as much as the Hundred is charged, the mistaking of the Parish shall not hurt. CCXIII Hellyard 's Case. Trin. 29 Eliz. In the Common-Pleas. A Habeas Corpus was to the Warden of the Fleet, to bring the body of one Hellyard, who returned the Writ, That the said Hellyard was committed to the Fleet, Per mandatum Francisci Walsingham, Militis unius principalium Secretariorum Dominae Reginae, etc. And because the Warden did not show in his return for what cause the said Hellyard was committed, the Court gave him day to amend his return, or otherwise the prisoner should be delivered. CCXIU Mich. 30 Eliz. In the Common-Pleas. UPon a Recovery in a Writ of Entry, Sur disseisin of two acres of land, Habere facias seisinam was awarded, The Sheriff as to one acre returned Habere feci; as to the other tarde. And the return was showed to the Court; and all the justices but Periam held, that the Sheriff should be amerced for that return, contrary and repugnant in itself; But by Periam, it may be, That the acre of which no seisin is had, was so far distant from the other acre, whereof seisin was, that the Sheriff, for want of 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 doth return as to one, Cepi, and to the other tarde, he shall be amerced, for those several Retorns cannot stand together. CCXV. Edgar and Crispe 's Case. Mich. 30 Eliz. In the Common Pleas. Edgar recovered against crisp in Debt, and afterwards released to crisp, and afterwards, notwithstanding the release, Edgar sued for a Capias ad satisfaciend. against crisp, and pursued the same until crisp was outlawed: and it was the opinion of Anderson, chief justice, That crisp should have an Audita Querela, notwithstanding the Outlawry; and if the Audita Querela passeth with crisp, the Outlawry also should be avoided. CCXVI. Frankwell 's Case. Trin. 30 Eliz. In the King's Bench. IN Trespass for carrying away of Tithes, the Case was; That Frankwell, Parson of the Church of D. was accused, in forma Juris, before the high Commissioners, who pleaded, that the same cause and crime was prosecuted against him in the Arches, and prayed that he might not be doubly vexed for one and the same offence; and notwithstanding that he was deprived, and another Clerk presented to the same Church by the Patron, and was admitted, instituted and inducted; and upon entry, brought Trespass against the former Incumbent. And note, the manner of the Deprivation, as it was found by Verdict: That the Bishop of London, with the assent of the other Commissioners, gave sentence of Deprivation against him; and it was showed, That the high Commissioners had not power by 1 Eliz. to give sentence of any thing which is dependant in another Court: For it was not the intent of the said Act, to take away the jurisdiction of the other Ecclesiastical Courts; for than it is in vain to have such Courts: It was also moved, because the pleading is, That the Bishop of London, ex assensu of the other Commissioners, gave sentence, the same is a void sentence; for it ought to be the sentence of all the Commissioners, for they shall have equal authority: And to this purpose, he cited the Case, 29 H. 8. Dyer 40. where a Lease is made of Lands, whereof the Dean and Chapter are seized, in common, per nomen Decani ex assensu, & consensu totius Capitul. but it was holden a void Lease; for the Chapter ought to be party to such Lease; contrary, where the Lease is made of the Land which is the proper and peculiar Inheritance of the Dean: But that Exception was not allowed; for the form of Entries in all cases, hath always been so. Coke, posito, That the Commissioners ought not to proceed in this Case, yet, because they have so done, the same ought not to be examined here; for the judges here, aught to think that this Deprivation was duly ma●e; for, cuique credend. in sua arte, which Wrey granted: And it was said by him, That the Court was created for two causes: 1 For the expedition of the causes depending in the spiritual Courts: Co. 4. Inst. 326, 327. 2 To give to such judge's authority to punish offences in more high degrees; for before they could not but only excommunicate, but now they may imprison; and if the party had Libelled against him in the spiritual Court of the Arches, it is no reason but that the party for his own expedition, and for to procure due punishment against the offender, may send the cause into the high Court; and after judgement was given according to the Deprivation: And afterwards Error was brought thereupon, and the Error assigned upon the matter in Law, whether the said Deprivation was lawful or not? Coke, I remember the reason of the judgement given by the Court was, That admitting that the sentence of the high Commissioners was erroneous; yet it shall bind until it be reversed by appeal, Fenner, If the party grieved might be restored by appeal, I agree, that such sentence should bind until it were reversed; but in our Case, no appeal lieth from the high Commissioners, wherefore we ought to be helped here; or otherwise we are without remedy. Coke, If the Delegates give sentence, no appeal lieth, and yet the party grieved shall not be helped here. Fenner, 16 Eliz. One Fox was deprived the last day of the Parliament for incontinency, which offence was pardoned by the same Parliament, and that sentence of Deprivation was holden void. Anderson, In your Case, the offence itself was pardoned and discharged: Also it is against a general Statute, of which every one ought to take notice. Periam, When the Case was in the Common Pleas, it was moved; If of a sentence given by the high Commissioners, an Appeal did lie; and it was certified by Clark, Doctor of the civil Law, that it did; for the Commissioners are as the Delegates of the Queen: And as by the Canon Law one might appeal from the Delegates of the Pope, unto the person of the Pope; so now, one may appeal from the high Commissioners, to the person of the Queen: See for that, 24 H. 8. 12. Another Error was assigned, because that the Commission gave authority to the Commissioners, to adjudge upon confession of the party, or upon the witnesses; but here none of these two ways is found by the Verdict; but sentence was given upon his Plea, That he was sued in the Arches for the same cause, and so they have not pursued their authority: for the Act is, That such Commissioners shall have authority by virtue of the said Act, and of the said Letters Patents to exercise, etc. And they are directed by the Letters Patents, that they shall proceed upon due proof had by confession or true witness, to give sentence. Periam, Although they have not observed the due form prescribed unto them by the Letters Patents; yet such sentence is not void. Anderson, If the party appeareth and will not answer, it shall be taken pro confesso, and he shall be condemned. CCXVII. Sir John Sand 's and Packsal Brocas 's Case. Trin. 38 Eliz. In the Common Pleas. SIR John Sands brought an Action upon the Case against Packsal Brocas, upon a Trover of goods and householdstuff; The Defendant pleaded as to parcel, that they were fixed to his Freehold in S. in Hampshire, Absque hoc, that he found them in other manner; as to the part, that the Plaintiff gave them to him at D. in Hampshire, and as to the other part, he pleaded, Not guilty: For the first part, the Plaintiff caused it to be entered, Non vult ulterius prosequi, and took issue upon the two other; and it was found for the Plaintiff by several juries, in several Counties, and damages and costs assessed by the juries: and now the Defendant brought Error, and assigned Error i. because the Plaintiff as to the first had entered, Non vult ulterius prosequi, which is a Nonsuit, and Nonsuit in part, is Nonsuit in all. Anderson, It is a Question, if this be a Nonsuit? The entry is, Querens venit, & gratis concessit, that as to the goods mentioned in the first Pleas, Non vultulterius prosequi; Ideo, consideratum est quod nihil de iisdem versus the Defendant fiat, est ille & pleg. in misery. & the Defendant eat inde sine die, Periam, A Nonsuit is, when the Plaintiff is demanded and doth not appear; but when he comes into Court, and saith, Quod non vult ulterius prosequi, the same is a Retraxit: Nelson, Prothonotary, Nonsuit is upon default; but here the Plaintiff appears, and this is the usual form of entry of a Retraxit. Another Error was assigned, because both juries have assessed costs, and judgement given according; whereas the last Verdict ought to do it. And where two juries are to try the issue, the form of the entry after the first Verdict is, Cesset executio, until the other issue be tried: Vid. 21 H. 6. 51. 36 H. 6. 13. Anderson, Several issues cannot sever the costs, although they may the damages, for it is but one suit; therefore but one costs; and that is the reason that judgement shall not be given until the last issue be tried, because that costs shall be but once assessed, which was granted by the whole Court: And by Periam, The first jury may assess costs for the whole suit, Quod fuit concessum. Coke, Here are several judgements for the costs; and although it be void for the later issue, yet it is good for the first. Periam, How shall it appear unto us which Verdict was the first, and which the last? although that the one Verdict be entered of Record before the other, the same doth not make that it was first given; wherefore, the whole shall be reversed. CCXVIII. Mich. 31 Eliz. In the Common Pleas. 2 Len. 224. A Man, 30 Eliz. made a Feoffment in Fee to the use of himself for life, and afterwards to the use of his first son, and his heirs; The father and the Feoffees before issue, for money, by Deed, give, grant, and enfeoff J. S. and his heirs, who hath not notice of the use; The Tenant for life hath issue, and dieth, the issue entereth: Glanvile, The use limited to the first son is destroyed; for without regress of the Feoffees, it cannot rise; and that the same is gone by their Livery: See Plowden's Com. 340. And also he vouched the case of the Earl of Kent, whereby the release of the surviving Feoffee, a sleeping use was destroyed, and could not afterwards be revived. Harris, The use may rise without entry of the Feoffees: And he put a difference between uses created before the Statute and uses created after; for in the first case, they ought to enter; and if they be disabled by any Act, as in the case betwixt Gascoign and the Earl of Kent, they shall never rise, but in the later case, all the authority and confidence is by the Statute out of the Feoffees, and the uses 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 the payment of the Debts of the King: as in the case betwixt Breden and Dennis. The Debtor of the King makes a Feoffment in Fee to the use of himself and his heirs, until he makes default of payment of such a sum unto the King at such a day, and upon default, to the use of the King and his heirs. Cooper, There needs no entry of the Feoffees; and he put the difference put before by Harris, betwixt an use created before and an use created after the Statute: And now the Feoffees have not any power to revive or destroy such cases, 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 thereof; but if not, the Law shall preserve the same, and it cannot by any means be prevented. And he put the case of Bro. Feoff. to Uses, 50. 30 H. 8. And there is a great difference betwixt an Use limited before the Statute and after the Statute; for now, after the Statute, the Feoffees have not any seisin, whereof they may make a Feoffment: And he put the case between Cheney and Oxenbridge; Cheney leased to Oxenbridge for 60 years, and afterwards enfeoffed Oxenbridge to the use of the said Cheney and his wife for their lives, with divers remainders over; and it was adjudged in the Court of Wards, that by the Feoffment the term was not extinct: And he put the case of the Lord Paget in the King's Bench adjudged. A Feoffment was made unto 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, levied a Fine unto a stranger, and afterwards the Feoffor named one and died, the party named by the Feoffor shall have the land, notwithstanding the Fine. Beaumont, The contingent use here, is utterly destroyed by the Feoffment aforesaid; and it appeareth by the preamble of the Act of 27 H. 8. That the makers of the Act did not favour Uses, but their intent was utterly to extirpate Uses: And if contingent Uses which are not, nor cannot be excused by the Statute should stand in force, The mischief would be, That no purchasor should be secured and safe in his purchase, but should always be in danger of a new born Use, not known before; and he grounded his farther argument upon the reason of Manwood and Dyer, Where a man makes a Feoffment in Fee to the use of himself and his Wife which shall be, and afterwards he and the Feoffees, and those in remainder, make a Feoffment to divers new Feoffees, and to new Uses; and afterwards he takes another Wife, and dieth: It was the opinion of the said two judges, That by that Feoffment, ut supra, the contingent Uses are destroyed: For when the Estate which the Feoffees accept is taken away, which was the root and foundation of the Uses which are the branches and fruit of the body of the said Tree, it necessarily followeth, That they be also taken away; and because the Feoffees by their Livery, are barred to enter to recontinue the Estate which should yield such Uses, they also are gone and extinguished. Yeluerton was of opinion, that notwithstanding the said Feoffment, that the Use should rise in his due time according to the limitation of it. It was adjourned. CCXIX The Lord North 's Case. Trin. 30 Eliz. In the King's-Bench. THE Queen granted unto the Lord North and his heirs, the Fines, pro licentia concordandi, and one would not pay him the Fine; for which cause, the Lord North brought an Action upon the Case against him, and declared upon Indebitatus assumpsit, etc. Godfrey moved this matter to the Court, to know their opinion, if such Action would lie for the matter or not. Fenner, For a Fine in a Court-Baron, or Court-Leet, debt lieth; but as he conceived, 1 Leon. 249, 250. 3 Len. 56. 234. here this Action doth not lie, for it is a real Fine, and there is no contract betwixt the parties; but the same is given by the Law: and some were of opinion, that debt lieth for a relief, for there is a contract by Fealty. Gawdy conceived, That the Action doth well lie; for it is not any casual profit and therefore debt lieth for it, although it be an inheritance: And see Dyer 28 H. 8. 24. The heir shall have an Action of Debt upon a Nomine poenae reserved by his Ancestor. Wray, I do not see that he hath any other remedy, and therefore I am of opinion that this Action will lie. CCXX. Mrs. Paschall 's Case. Trin. 31 Eliz. In the Exchequer. MIstress Paschall was bound with sureties, for her appearance before the high Commissioners, that she should not departed without licence under the hands of three of them; and she pleaded the general Pardon at the last Parliament, in which there is an Exception of all Bonds and Recognizances, except only such Bonds and Recognizances as are for appearance: And Atkinson argued, That she ought to be discharged, by the Exception; for although the departure without licence be not specially named, yet it is within the sense; for the not departure without licence, is no other thing, than to continue her appearance. Popham contrary: For, The Non departure without licence, was set down in the Condition to this purpose, That she should not go into the Country to be corrupted there, or to corrupt other, and receive Seminaries, etc. therefore it is another thing than appearance: Between Hore and Hare, the Case was, One was bound to make his appearance at such a day, and in the mean time thrice every Month to repair unto such a Preacher to be better informed in Religion, although the Non appearance was pardoned; yet the other point, i. the resorting to the Preacher, is to be answered. Atkinson, There the resorting to the Preacher is collateral, and a several point from the appearance: But in the Case at Bar, the not departure is pursuant to the appearance. And the opinion of all the Barons was, That the pardon did not extend to the same. CCXXI. Trin. 31 Eliz. In the Common-Pleas. 1 Len. 205. AN Action was brought against an Executor, who pleaded, That he refused the Executorship, upon which the parties were at issue. The Bishop certified, Quod non recusavit, whereas in truth, he had refused before the Commissary of the Bishop. Fenner, Serjeant, moved to have the advice of the Court upon this matter, and argued, That the Court ought to write to the Commissary, which was denied by the Court, for he is not the Officer to this Court as to that purpose, but the Bishop himself is our Officer: and the party cannot have an Averment against the Certificate of the Bishop, no more than against the return of the Sheriff: And the Court also held, That the only remedy for the Defendant, was by an Action upon the Case against the Bishop for his false Certificate: But it was moved, That the issue joined upon the refusal, aught to be tried by the Country, and not by the Certificate of the Bishop; and such was the opinion of Windham and Walmsley: Periam, Where the issue is, that the Executor refused before such a day, or after, there the issue shall be tried by the Country; contrary, Where the issue is upon the refusal generally, for the refusal is before him as judge, as also resignation is. CCXXII. Giles 's Case. Mich. 28 and 29 Eliz. In the King's-Bench. A Writ of Error was brought in the King's-Bench, to reverse a judgement given in an Action upon the Case, in the Court of Common-Pleas; where the Writ brought against the Defendant there in that Case, was, Quare exaltavit stagnum per quod pratum of the Plaintiff was inundatum: The Defendant in the Action there pleaded, Not guilty, and the jury found, That the Defendant Erexit stagnum; and they said, That if the Court shall judge, That Erectio and Exaltatio be all one, than they find, that the Defendant is guilty; and afterwards judgement was given in the said Court of Common-Pleas for the Plaintiff: Whereupon this Writ of Error is brought. And Glanvile, Serjeant, who argued for the Plaintiff, in the Writ of Error alleged the general Error; viz. That judgement was given for the Plaintiff, where it ought to be found for the Defendant: And he said, That Erigere stagnum est de novo facere, exaltare, is erectum majoris altitudinis facere, Deexaltare est ad pristinam altitudinem adducere: Prosternere stagnum, est penitus tollere: And in every Action upon the Case, such apt and precise words are to be in the Writ, according as his Case requires, unto the end that judgement may in such Action be given to the Plaintiff according to his plaint, and his damages, In 7 E. 3. 56. In Assize of Nusans', Quare exaltavit stagnum ad nocumentum liberi tenementi sui: The Defendant pleaded, that he had not enhanced it after it was levied; and there it was said by Drew, Serjeant, That there is not any other Writ in the Chancery, but Quare exaltavit stagnum. But that was denied by Herle: For that he said that the Plaintiff might have a Writ out of the Chancery, Quare levavit stagnum: And there by that Book it is assigned, That Levare stagnum, & exaltare stagnum do differ: and therefore he said, that in this Case, the Writ should abate for the using of one word for another, 8 E. 3. 21. Fitz. Nusans' 5. by Chauntrel, In a Writ of Nusans', Quare levavit, if it be found that he levied it to the Nusans, etc. the whole shall be destroyed; but in a Writ Quare exaltavit, nothing shall be pulled down, if it be found for the Plaintiff, but that which is enhanced only: So 8 Ass. 9 Br. Nusans' 17. the same Case is put. And see 16 E. 3. Fitz. Nusans, 11. If the Nusans be found in any other form than the Plaintiff hath declared, he shall not recover: And in 48 E. 3. 27. the Writ was, Quare divertit cursum aquae, etc. and the Plaintiff shown, that the Defendant had set piles, and such other things in the water, by reason whereof the course of the water was straitened; and because the Plaintiff might have had a Writ, Quare coarctavit cursum aquae, the Writ was abated: Another Exception was taken, viz. That the Assize of Nusans aught to be brought against the Tenant of the Freehold, and therefore it would not lie in this Case; it not being showed that the Defendant was Tenant of the soil: Vid. 33 H. 6. 26. by Moil, If a way be straitened and impaired, an Action upon the Case lieth; but if it be altogether stopped up, than an Assize must be brought; But there it is said by Prisoit, That if the stopping up of the way be done by the Tenant of the Land, than an Assize lieth; if by a stranger, than an Action upon the Case: But for common Nuisances no Action lieth, but they ought to be presented in the Court-Leet or Turn, and there redressed: and such was the opinion of the whole Court in this Case. Then it was moved, 6 Co. 25. That one of the Plaintiffs in the Writ of Error had released; and the Question was, whether that release should bar his companion? to which nothing was said: At another day the Case was moved again, and Drew, Serjeant, said, That Exaltare and Erigere, are all one; but all the justices were against that; for that Erigere is de novo facere, and Exaltare is in majorem altitudinem attollere, and afterwards judgement was affirmed. CCXXIII Freeman and Drew 's Case. Trin. 30 Eliz. In the King's-Bench. IN an Action upon the Case by Freeman against Drew, The Defendant pleaded, That after the Assumpsit whereof the Plaintiff had declared, There was an agreement betwixt them, That the Defendant and two others should be bound in a Bond to the Plaintiff for the sum promised; and that they entered Bond accordingly: The Plaintiff confessed the agreement, and that the Bond was made according to the agreement, and that the parties bound did deliver the same as their Deed, cuidam ignoto, to the Plaintiff; The Defendant said, That they did deliver the Deed to one J. S. and gave notice thereof unto the servant of the Plaintiff, and that they are now ready to deliver it to the Plaintiff, upon which there was a Demurrer: Godfrey argued, That the said Plea of the agreement specially executed, ut supra, was good, as in a Case lately adjudged between Alford and Leigh, 1 Cro. 54. Ante 110. Tr. 29 Eliz. Where the Arbitrament was made, That Leigh should release unto Alford before the Feast Petri ad vincula, and before the said Feast, Leigh sealed and delivered such a release unto the use of the said Alford, and after the Feast, he tendered it to Alford, but he refused it, and brought Debt upon the Bond for performance of the Arbitrament; and it was adjudged, That the Action would not lie; for if he do recover upon that Action, he also should take advantage of the release. Coke, In Alford's Case, a tender was to the Plaintiff himself, which is not in this Case; and although that it was after the Feast, yet it was before the suit commenced, and also in our Case the tender is depending the suit. Gawdy, If the Plaintiff should recover in this Action, he might plead the recovery in Bar of the suit upon the Obligation. Wray, Let the Plaintiff release the Bond, and take judgement here, which was done accordingly. CCXXIU Somers and Sir Richard Buckley 's Case. 32 Eliz. In the Common-Pleas. IN the Case betwixt Somers and Sir Rich, Buckley; Where the Plaintiff prayed a Prohibition to the Court of Admiralty; The Case was, That the Defendant sued in the Admiral Court for the moiety of a Ship and prise taken by them upon Letters of Reprisal; 2 Inst. 205. for the Civil Law is, That if two Ships meet at Sea together, although they do not go forth as consorts, and the one Ship in the presence of the other taketh a Ship with goods in it, the other Ship which was present shall have the moiety, 2 Roll. 205. or one half of the Ship and goods taken; for although it did not take the Ship, yet the presence thereof there at the time of the taking, was a terror to the other Ship which was taken, Sine quo, the other Ship could not be so easily taken: And now the Plaintiff for the Prohibition did surmise, That after they were arrived in England, 2 Roll. 171. they did agree amongst themselves, That the Plaintiff should have four parts of the said Ship and goods so taken, and the other five parts: And the Plaintiff said, that he had pleaded this matter in the Court of Admiralty, and they would not allow the Plea, and thereupon he prayed a Prohibition, which was granted; but afterwards it was moved on the other side, That the said Court of Admiralty would allow the Plea, and there try it; and thereupon a conditional consultation was granted by the Court; so that that Court allow that Plea, and try it there: And it was said, If the Court there should not allow the Plea, that they should incur the offence of contempt of this Court, and the other party should have a Prohibition. CCXXU. Sir Richard Buckley 's Case. Mich. 32 Eliz. In the King's-Bench. SIR Richard Buckley was indicted upon the Statute of Praemunire of 13 and 15 R. 2. and the effect was, That whereas one Griffeth Matthew had murdered one Robert Footman at Beaumarris; and whereas one Owen Wood prosecuted the said Griffeth Matthew for the said murder; The said Griffeth Matthew, Praemissorum non ignarus, sed intendens, the said murder, a Curia Dominae Reginae ad aliud examen, etc. pro quodam supposito contemptu Curiae Admiralitatis traxit in placitum: the said Owen Wood, coram Julio Caesar. in the Court of Admiralty holden at Islington, supposing the said murder to be done upon the high Sea, and thereupon caused him to be arrested, and being under arrest, to enter Bond unto the Lord Admiral, that he should not prosecute the said murder against the said Griffeth Matthew, nor examine any witnesses concerning the said murder, and that the said Sir Richard Buckley was abettor and procurator of the said Griff. Matthew therein. To this Indictment many Exceptions were taken by Coke: In placitum pro quodam contemptu, and doth not show the contempt in certain; for it is too general, and so not good: See 18 Ass. for the stealing of certain Sheep, without showing what Sheep they were, is not a good Indictment. And here he doth not say; concerning the said murder, or concerning the premises: 2 Although that the matter of the Indictment be true; yet the Stat. of Praemunire doth not extend to it, for the Statute inflicts a punishment as well upon the judge, (scil.) the Admiral, as upon the party: See 10 H. 4. 164. If one Libelleth in the Court of Admiralty for a thing done upon the Land, and it appeareth upon the Libel, that the thing was done upon the Land, and they, notwithstanding that hold Plea of it; A Praemunire lieth upon it. But if the same doth not appear within the Libel, than it is not within the Statute; but a Prohibition shall only issue: So in the case of Tithes; If the Parson sueth for Tithes severed from the nine parts, and that appeareth in the Libel, the same suit is within the Statute of Praemunire; and that was Cardinal Woolsey's Case: 3 It is alleged, That Sir Richard Buckley procured him to do it, but it is not showed any place where the procurement was had: And that was resolved in the Case of the Lord Paget, 1 Len. 5. and the Bishop of Coventrey and Lichfield: where the Bishop was indicted, That he commanded J. S. to enter into the Close of the Lord Paget, and to do a trespass there, and because the place of the commandment was not set forth in the Indictment, the Bishop was discharged. M. 25 and 26 Eliz. Another matter was objected, because that the words are, That the said Sir Richard Buckley did abet and procure, in hac parte; without showing what thing. As to this last Objection, The Court was of opinion, that the words (in hac parte) did refer to the whole offence contained in the Indictment: Wray, It is hard, That the matter of the Indictment should be within the Statute of Praemunire; for by the suit it is supposed, That the offence was done upon the sea; and the Admiral hath jurisdiction to punish murders committed upon the sea, so in some degree the Admiral hath Conusance to inquire of Murder; but if they hold plea of any thing of which in no degree they have Conusance, it is otherwise. And as to the place where the commandment was made, the Court was clear of opinion, that it ought to be showed. CCXXVI. Hooper 's Case. Mich. 32 Eliz. In the King's Bench. JOhn Hooper, 1 Cro. 198. alias Bartholomew of D. etc. was indicted upon the Statute of 8 H. 6. Of forcible Entry, and Exception was taken to the Indictment in default of addition of the place, etc. For the addition is here after the alias dict. and so there is no addition; and therefore the party was discharged, and it was holden in this Case, That Uxor is a good addition; and where the husband and wife are indicted, and the husband be indicted of such a place, although the wife hath no addition of place, yet the same is good enough; but I've said, That in that case there needs not any place. CCXXVII. Mich. 32 Eliz. In the King's Bench. A. Was Indicted for not repairing of a Bridge lying in such a highway, which A. is bound to repair by reason of his land adjoining; and the Indictment was, That the Bridge was so ruinous, Ita quod Ligei Dominae Reginae per eam transire non possunt, and concluded, ad nocumentum eorund. etc. and that was challenged, because it doth not say, Ad nocumentum omnium subditorum: for otherwise it may be intended a private way, of which a man cannot be indicted, but the party grieved shall have his Action upon the Case: But the Exception was not allowed, but the Indictment is good enough; For the words of the Indictment are, Sic quod Ligei Dominae Reginae illuc pertransire non possunt; i. e. all the Liege people and Subjects of the Queen; and then, ad nocument. eorund. amounts to as much as, ad commune nocumentum, etc. and for that cause the Indictment was holden good enough. CCXXVIII. Ashpernon 's Case. Mich. 32 Eliz. In the King's Bench. ONE Ashpernon was Indicted at the Sessions, in the County of Sussex, for an unlawful assembly and entry into the Close of one A. called, The Parsonage land, before two justices of Peace there, and exception was taken to it, because it is not set down in the Indictment, that one of the justices was of the Quorum, but that the exception was disallowed; for the Indictment is sufficient, if none of them be of the Quorum, for they may inquire, but not determine: Another exception was, because the contents of the Close is not set down in the Indictment; (scil.) the number of the acres, nor if it be arable, pasture, or Meadow; but that was disallowed also; for this is but an Indictment of trespass, contrary, it is upon an Indictment upon the Statute of 8 H. 6. Postea 186. for there the party grieved is to have restitution, but so he is not here: Another exception was taken, because that in the Indictment no time is set down when the trespass was done, but only of the assembly; but that was disallowed also; for both shall be taken to be done together all at one time. CCXXIX. Leveret and Townsend 's Case. Mich. 32 Eliz. In the King's Bench. 1 Cro. 198. 3 Len. 263. IN an Action upon the Case, for disturbing him of his common; The Plaintiff declared, That he was seized in Fee of a Message and certain land, and that he, and all those whose Estate, etc. have common of pasture in 16 acres of land called D. from the time that the corn was reaped, until it be sowed again; and also common of pasture in lands, called R. omni tempore anni, as appendent to the said Message and land: and that the Defendant had ploughed the said lands, and so disturbed him of his common, and found for the Plaintiff, and it was moved in stay of judgement, That here it appeareth, that the Plaintiff was seized in Fee, and so he ought to have an Assize, and not an action upon the Case; but the exception was disallowed per Curiam, See 2 H. 4. 11. 8 Eliz. Dyer, 250. 11 H. 2. Action upon the Case, 36. CCXXX. Hore and Wridlesworth 's Case. Mich. 32. Eliz. In the King's Bench. HOre brought an Action of trespass against Wridlesworth, Quare clausum & domum suam fregit. The Defendant pleaded, and put the Plaintiff to a new assignment: i. 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, The same is 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, Domus est nomen collectivum, and contains many buildings, as Barns, Stables, etc. and so was the opinion of the whole Court. CCXXXI. Savacre 's Case. Mich. 32 Eliz. In the King's Bench. A Writ of Error, Ante 4. was brought by Savacre and the Bishop of Gloucester, M. 31 and 32 Eliz. upon a judgement given in a Quare Impedit, for the Queen. And Error assigned: 1. An Attachment was awarded against the Defendant in the Quare Impedit; retornable Quind. Pasch. at which Savacre appeared, and cast an Essoin; and notwithstanding that, a Distringas was awarded against them both, returned, Craft. Trin. and the awarding the Distringas was erroneous; for the Essoin was as an appearance for to save, etc. and therefore against him not Distringas ought to have been awarded: And upon alleging of Diminution, the Record of the Essoin was certified; for the same did not appear upon the Plea Roll. 2 The Record is, Ipsi in Misericord. and so both of the Defendants are amerced for the default of appearance, Quind. Pasch. whereas Savacre was then Essoined, and so no cause of amerciment of him. Coke, The original Writ was here sued, Mic. 26 Eliz. retornable Quind. Hillar. and then both the Defendants made default, for which an Attachment was awarded retornable, 15 Pas. and then Savacre appeared, and judgement was given, Quod ipsi sint in Misericord. in which point the Error is assigned: But I conceive, that it is not Error; for upon the Attachment, the parties ought to put in sureties for their appearance: and the said sureties took upon them, that the Defendants, and each of them should appear, and if they, or one of them maketh default, the sureties should be amerced; and so here, this judgement, Ideo ipsi in Misericord. shall refer to the sureties, not to the parties: for the Defendants shall not be amerced until the end of the suit, and but once only in one action, which see, Book of Entries, 464. where there was but one Defendant; and therefore, If the amerciment shall refer to the Defendant, than it should be, Ideo ipse, not ipsi, etc. and that is the reason, wherefore neither the Queen nor an Infant shall find pledges, for no amerciament shall be upon their default, therefore in vain for them to find pledges, etc. And if the pledges be amerced where they ought not to be amerced by the Law, yet the Defendant shall not have Error upon it, for he is not the party grieved by that amerciament. And upon this reason it is, That in a Scire facias against the bail, if erroneous judgement be given against him, the Defendant in the Action shall not have a Writ of Error, The awarding of the Distress upon the Roll against both, where the one of them only makes default, is not error, especially as this case is; for though that one of them was Essoined until the day aforesaid, yet at the said day they make default, and so the Distress is well awarded against him; and although that the Writ were ill awarded; yet when they appear, Cr. Trinit. at the day of the return of the Distress, all mean defaults in the Process are saved, and so the misawarding of the Distress, by appearance afterwards is supplied: As 39 E. 3. 7. The Law requires that in an action grounded upon the Statute of Praemunire, 27 E. 3. the Defendant hath warning by two Months; yet if the Defendant having not had such warning appeareth, the Process is well enough: So 9 E. 4. 18. Where, upon any Process the Defendant appeareth, although the day of appearance be not lawful, yet the parties shall be put to answer: and see many cases there to the same purpose: and such was the opinion of the Court in the principal Case. And as to the second Error, that the judgement, Ideo ipsi in Misery. shall be referred to the sureties only, and not unto the party; and that the Defendant shall be but once amerced in one action, the same is true, that he shall be but once amerced for one default; but if many defaults be, the Defendant shall be severally amerced for every default: And it should be unreasonable that the sureties should be amerced, and that the Defendant who is as principal should go free: See the Book of Entries, 193. Ipsi & plegii sui in Misericordia, etc. CCXXXII. Farnam 's Case. Mich. 32 Eliz. In the King's-Bench. FArnam, Schoolmaster, and others, were Indicted upon the Statute of 8 H. 6. for entering, In domum Rectoriae de Putney, ac in cert. terras eidem domui part. jacen. in Putney, etc. Exception was taken to the Indictment, because it recited the two parts of the Statute: 1 Expulsion and Disseisin with Force: 2 Holding out; and there is not any offence in it contained as to one of them; (scil.) Holding out; and although it was not necessary to recite the Statute, yet the party meddles with it, and doth not apply it to the special matter, the same is naught: See for that the Case between Strange and Partridge, Blow. Com. 2 The entry is supposed, In domum & certas terras eidem domui pertinen. jacen. in Putney; which is incertain, as to the lands, and it is naught for the house also; for it is not showed in what Town the house is, for this clause, ac certas-terras eidem domui pertin. jacen. in Putney, is a distinct clause by itself, and refers only to the lands, and doth not extend to the house: As to the first exception, is was disallowed; for it is not like unto Partridge's Case, for there the Statute is recited, which needs not, and therefore, being misrecited, made the Indictment insufficient; but here the Statute is well recited, and therefore as unto that matter, the Indictment is sufficient: As to the second exception, the justices were of opinion, That the Indictment in that respect, Antea 184. was too general and incertain: The third exception was not allowed; for the latter words, i. e. in Putney, do refer to the whole, and extend as well unto the house as unto the lands: But as to these words, Lands to the said house belonging. See the Case between Partridge and Croker, 7 E. 6. 85. where it is good enough, because that the number of the acres is set incertain. And it was holden by the Court, That a Schoolmaster is a good addition, for it is a mystery, as a Scrivener; and afterward the Indictment for the house only was holden good. CCXXXIII. Grace a Bencher of the Temple 's Case. Mich. 32 Eliz. In the Chancery. GRay, a Bencher of the Temple's Case, was this; It was found by Office, That one H. was seized in Fee of certain lands called maintainers, and Codred, alias Codreth, in the County of Hertford, in his Demesne as of Fee, and thereof enfeoffed certain persons, unto the use of himself, and Anne Capel, with whom he afterwards intermarried, and of the heirs of their two bodies begotten, and of such Estate died seized; and farther it was found, that the said H. was also seized of other Lands, in Barmesden in his Demesne as of Fee, and therefore died seized; and now came Grace into the Chancery, and shown that the said H. was seized of the said Land, called maintainers, in his Demesne as of Fee, and thereof enfeoffed certain persons unto the use of himself, and the said Anne Capel, for the term of their lives, and afterwards, by his Indenture, dated the 23. of Decemb. and enroled, bargained and sold the Reversion thereof to the said Grace, etc. by force whereof, etc. Absque hoc, that he was seized in tail, and absque hoc, that he thereof died seized in his Demesne, as of Fee-tail, as it is found by the said Office: and for the Land in Barmesden, he said, that the Lady Judde was seized thereof for the term of her life, the Reversion to the said H. in Fee, who granted to him the said Reversion in Fee, etc. absque hoc, that he died seized in his Demesne as of Fee, etc. And upon that, the Queen's Attorney joined issue, and the Venire facias issued, De Cottred & Barmesden; and the jury found, That H. did not make the Feoffment to the use of himself and Anne his Wife in tail; and farther found for Grace in all, etc. And it was objected here, That the same is not a good and lawful trial: For the Land is alleged to be in Codrett, and the Venire facias is of Codred, etc. And although the Venire facias be well awarded, as unto Barmesden, yet being naught in part, it is naught in all, which was granted by the whole Court; And then a new Venire facias shall issue forth for the whole. Another Objection was, because he pleads that the Lady Judde was seized of that Land for the term of her life, in which Case Grace, who is in Reversion, ought not to be admitted to this Traverse, because that Tenant for life, for any thing that is pleaded to the contrary, is yet alive; and it is clear, that none shall be put to his Traverse, but the party grieved; and here he in the Reversion upon an Estate for life, cannot be restored to the possession, and by consequence shall not have Traverse: See for that, 6 H. 7. 15. and 37. Ass. 11. etc. 2. The seisin in tail ought to be traversed, and not the descent, or dying seized; for if they were seized and disseised, and so died, the Queen shall have the Ward. Coke, contrary, For Codred and Cottered, idem sonant, etc. And although that it be found by Office, that H. was seized of Lands in Codred, alias Codreth, yet the Defendant supplies the said matter; for he saith thus as unto the Land in Codred praedicta; which words import that the said Land was known by the one name or the other; for this word praedicta, is as an Averment: which see 33 H. 8. Br. Averm. 42. And so here, this word praedicta is an Averment, that Cottered and Codred are one: And if so, than the Venire facias is well awarded. The Statute of 18 H. 6. gives Traverse to those who find themselves grieved by such Offices, or which are put out of their Lands or Tenements; and we are within the words of it, for upon the whole matter, we are out of possession, as it was ruled in the Case of one Stukely in the Court of Wards the last Term. If it be found by Office, That A. died seized of my Manor, and that he held the said Manor of the Queen: Now I am out of possession; and for that cause, the bargain and sale of Dorrel to Sir Francis Walsingham was holden void by the whole Court: And 4 H. 6. 12. Traverse is given in lieu of Petition, but he in the reversion may have Petition, therefore he shall be also admitted to Traverse: and this Case may be resembled to the Case of 2 E. 3. 23. where a Praecipe was brought against Tenant for life, and he in the Reversion for life prayed to be received: It was said by Thorp, That is not within the Case of the Statute, for he is Tenant only in the Remainder, and it is possible that neither shall have any thing; and the Statute speaks only of Reversion: and yet it was awarded, That he should be received, otherwise great prejudice would follow. And here we are at prejudice; for now, by reason of this Office, we cannot have our Action of Waste: Also here we need not to Traverse the dying seized in tail, but it is sufficient to Traverse the gift in tail; for if there be not a gift in tail it is not possible that he should die seized in tail, which see 2 E. 4. 15. by Laicon. Gawdy, justice, conceived, that the trial is not good; for the Venire facias is not from the place where the Land is; and this word (praedicta) doth not amount to an Averment; and the Case cited before is but the opinion of Brook. Wray said, That as to the first exception, that it was good enough, for both the names, idem sonant; and as to the Office, by that the Queen hath gained possession; so as he who traverseth cannot have an Action of Waste: and so he is prejudiced by the Office, etc. CCXXXIV. Perchall 's Case. Mich. 32 Eliz. In the King's-Bench. PErchall was Indicted upon the Statute of 5 E. 6. cap. 4. for drawing of his Dagger in the Church, against J. S. without saying, That he drawed it to the intent to stick the Plaintiff, and therefore the Indictment was holden void as to the Statute; and it was moved, If it should not be a good Indictment for the assault, so as he might be fined for it? and by Sands, Clerk of the Crown, and the whole Court, The Indictment is void for the whole; for the conclusion of the Indictment is, contra formam Statuti, and there the jury cannot inquire at the Common Law. CCXXXV. Mead and Cheney 's Case. Mich. 32 Eliz. In the King's-Bench. MEad brought an Action of Debt upon a Bond against Cheney, Executor of one Skipwith, and recovered; and upon a Fieri facias, the Sheriff did return Devastavit: and it was moved to have an Elegit, and the justices would advise of it: and afterwards, at another day, a Precedent was showed to the Court of 17 Eliz. and thereupon the Elegit was granted. CCXXXVI. Tompson and Trafford 's Case. Trin. 32 Eliz. In the King's-Bench. Rot. 910. Poph. 8, 9 IN an Ejectione firmae, the Case was, That the Warden and Fellows of New College in Oxford, 8 Eliz. leased a Mansion house in the Burrow of Southwark, to one Standish, for 21 years, and afterwards, 25 Octob. 21 Eliz. they demised the same Mansion house to the said Standish for 21 years, to commence the Michaelmas after: And the Stat. of 14 Eliz. cap. 11. and 18 Eliz. cap. 11. were also found: And if this second Lease shall be said a Lease in Reversion, and so be void by the Statute of 14 Eliz. was the Question. Foster moved, That it is a Lease in Reversion; for the first Lease doth continue until Michaelmas; and so was the opinion of the justices of Assize at the trial. Towse contrary: For when Standish accepteth the second Lease, the same is presently a surrender of the former Lease; for he giveth power unto the Lessor for to contract for the house presently; and to that purpose he cited Corbet's Case, 8 Eliz. Coke, It is a surrender presently, for you cannot apportion the Term. It was adjourned. CCXXXVII. Wood and Avery 's Case. Mich. 32 Eliz. In the King's-Bench. DEBT upon a Bond by Wood against Avery; the Condition was, That where the Plaintiff had demised to the Defendant for term of years, two Messages, etc. If the Defendant at all times, during the term, shall maintain, sustain and repair the said two Messages with good and sufficient reparations, that then, etc. And the Defendant pleaded, That he had performed the Conditions in all, but as to one Kitchen, which was so ruinous at the time of the Demise, that he could not maintain or repair, and therefore he took it down, and rebuilt it again, in so short a time as he could possible, in the same place, so large, and so sufficient in breadth, length and height as the other Kitchen was; and that the said Kitchen all times after the re-edifying of it, he had sustained and maintained, and well repaired, and demanded judgement, etc. upon which Plea the Plaintiff did demur in Law; and by the Court, the Plea were a good Plea if it were in an Action of Waste, but here where he hath by his own Act tied himself to an inconvenience, he ought at his peril to provide for it: And here it was said, That if the Condition be impossible the Bond is single: contrary, where a man is charged by an Act in Law. CCXXXVIII. Bostwick and Bostwick 's Case. Mich. 32 Eliz. In the Common-Pleas. DOrothy Bostwick brought Dower against Bostwick an Infant, Ante 59 and the Case was, That the Husband of the Demandant was seized of certain Lands holden by Knight's-service of M. C. and by his last Will, devised two parts of the Premises to his Executors, during the nonage of his heir, and died, his heir within age; after whose death M. C. entered into the third part, descended as Guardian in Knight's-service, and the Executors into the other two parts, upon which the Demandant brought one Writ of Dower against the Guardian, to be endowed of the third part; and another Writ of Dower against the heir within age, in whom the Freehold of the two parts was; The heir appearing by Attorney, pleaded to issue, which was found for the Demandant; but the judgement was afterwards reversed, because the heir, being within age, did not appear by Guardian but by Attorney; for which cause she again brought a Writ of Dower against the heir, and the Sheriff did return him summoned, but the heir made default; for which cause the Court was moved in the behalf of the Demandant, to have the aid of the Court in this Case: for if upon default of the Tenant, a Grand Cape should issue forth, and so a Recovery by default should follow; the same would be Error: which see 6 H. 8. Br. Liver. Defaul. 50. And therefore it was prayed, that some person be appointed Guardian to the heir, who may appear and plead for him, for otherwise the Demandant is at great mischief; for the Guardian now will not suffer the heir to appear in person: And if the Widow now Demandant should stay for her Dower until the heir should come of full age, it would be a great mischief: But by Walmesley, Periam and Windham, We cannot appoint a Guardian to the heir for his appearance here, unless the heir be here in person in Court before us; and he was appointed to be brought in person into Court. CCXXXIX. Sir Anthony Denny 's Case. Mich. 32 Eliz. In the Common-Pleas. SIR Anthony Denny, seized in Fee of the Manor of Chessam, extending into Chessam, and in the Town of Hertford, and also of other Lands in Hertford, by his last Will, devised the Manor of Chessam to Henry Denny his son and heir in tail; and his Lands in Hertford, to Edward Denny his younger son, etc. It was holden by Walmsley, Periam and Windham, (absent. Anderson) That the younger son should have that part of the Manor of Chessam, which lieth in the Town of Hertford. Another point in the Case was, That upon the death of Sir Anthony, and Office was found without any mention of this Devise; for which cause, the Queen seized, and leased all the Lands so devised to a stranger, during the minority of the heir; The heir comes of full age, and hath Livery of the whole, and without any express entry, leaseth the Lands for years, rendering Rent; the Lessee entereth, and payeth the Rent to the heir, the heir dieth, the Lessee assigns over his term, and the Rent is yearly paid to the right heir of Sir Anthony: And how Edward Denny entered, and per Curiam his entry is lawful; for if the heir entereth in this Case, and many descents follow; yet the Devisee may enter at any time, for his entry doth not make any abatement or wrong, but may well stand with the Devise; for if the Devise be waved, or the Devise doth defer the execution of the Devisee; 1 Inst. 111. a. 240. b. 3 Cro. 145. Ow. 86, 87. it is reason that the heir enter and take the profits, until the Devisee entereth: But if a stranger abateth after the death of the Devisor, and dieth seized, the same shall take away the descent. CCXL. The Case of the Town of Leicester for Toll. Trin. 28 Eliz. In the King's-Bench. 2 Inst. AN Action of Trespass, Tam pro Domina Regina, quam pro seipso; and shown, That the Town of Leicester is an ancient Town, and ancient Demesne, and the Inhabitants there have used to be discharged of Toll; and that the Queen by her Letters Patents, gave command to all Bailiffs, Sheriffs, Mayors, etc. That those of Leicester should be discharged of Toll; and notwithstanding that, That the Defendant took Toll, etc. Exception was taken, because that the suit was prosecuted, Tam pro Domina Regina, quam pro seipso: whereas the party grieved was only to have the information. See the Case, 49 E. 36. Where the Writ is, add respondend. tam pro nobis, quam, etc. and no exception is taken to it: Another exception, The Plaintiff declares, That Leicester is an ancient Town, and ancient Demesne, and doth not show that it is parcel of a Manor: See 20 E. 3. Ancient Demes. 25. such exception is taken, but after, the Defendant pleads, That all such Towns, whereof the Land in question is parcel, is ancient Demesne; and such plea was holden good: See 30 E. 3. 12. parcel of a Manor, which is ancient Demesne; and the Plaintiff replied, Absque hoc, that it is parcel of the Manor: Another exception, That Lands holden in Socage only, and no other ought to be discharged of Toll; and here it is not showed in the Declaration, that the place where, etc. is holden in Socage, To which it was answered, That the same needs not to be set down in the Declaration; for that is implied in these words, Ancient Demesn. for otherwise it cannot be but Socage Land only, and of no other Tenure: A fourth Exception, The Letters Patents here showed in discharge, are of no value; for the King by his Letters Patents cannot disinherit any one, Erg. nor discharge one of Toll which is a kind of disinheritance; To which it was said, That the Plaintiff doth not declare of any Grant, but of an usage or custom, for those of ancient Demesn; and farther, hath commanded by the said Letters Patents, that such customs and usages should hold place; and upon the custom, and the contempt, this Action is grounded: A fifth exception, because the Plaintiff hath not showed, that the Toll whereof the Plaintiff hath counted, was concerning things for provision for their houses, manurance of their lands, etc. 7 H. 4. 111. In an Action upon the Case for not paying of Toll, The Defendant said, That he held certain lands of R. Lord of the Manor of H. which Manor is ancient Demesn, of which Manor all the Tenants have been free, to sell or buy beasts or other things, for the manurance of their lands, and maintenance of their houses, without paying Toll in any Market or Fair, etc. And so justifies, that he came to the same Market, and bought certain beasts, as the Plaintiff had declared, and that some of them he used about his manurance of his lands, and some of them he put into pasture to make them fat, and more fit to be sold, and afterwards, he sold them at such a Fair, etc. and the opinion of the Court was with the Defendant: And by Godfrey and Coke, Such Tenants shall be discharged of Toll, not only for buying of things which concern their sustenance, provision, and manurance of their lands, but also for all things bought, as common merchandizes: 28 Ass. ult. by Thorp, Green and Seton, of all things bought by any for his own use, they shall be quit of Toll: and then, If the privilege of Tenants in ancient Demesn, shall not be quit of Toll, but for things bought for their sustenance, provision and manurance of their lands, they have no more favour than ordinary Subjects: See 19 H. 6.66. Some are of opinion, That such Tenants shall not pay Toll for things sold and bought, coming upon their lands, and touching their sustenance: See F. N. B. 228. D. such Tenants are discharged of Toll for all things by them sold and bought, by way of merchandise; as also of things of necessity, as sustenance: And see Crook, in the cases of Itiner. 138. he conceives, that such Tenants for merchandizes shall pay Toll as other merchants; but see the Writ of F. N. B. 228. the words are De bonis, & rebus suis, And Coke said, That he had found the reason wherefore such Tenants should be quit of Toll throughout the Realm, in an ancient Reading, viz. That all the lands in the hands of Edw. the Confessor and Wil the Conqueror set down in the Book of Doomsday were ancient Demesn, and so called Terrae Regis, and they were to provide victuals for the King's Garrisons, for than they were troublsome times; and for those causes, and because they made provisions for others, they had many privileges, amongst which this one; Ut quietius aratra sua exercerent, & terram excolerent: The Lord himself, in ancient Demesn shall not have such privilege, for his signory is pleadable at the Common Law: Vid. F. N. B. 228. B. And he said, That the Plaintiff ought to allege, that his lands are parcel of such a Manor; for there cannot be ancient Demesn, if there be not a Court and Suitors, etc. And he granted, that such a Town might be ancient Demesn of the Crown, but yet they shall not have the privileges and liberties which the Tenants in ancient Demesn have. Towns were before Manors: London hath the name of ancient Demesn, and yet they have not such liberties, nor the lands in it pleadable by Writ of right Close. 7 H. 6. 31, 32. Shute, justice, was of opinion, That an Inhabitant within ancient Demesn, although he be not Tenant shall have the privileges: See for that, F. N. B. 228. B. Tenants at will in ancient Demesn shall be discharged of Toll, as well as Tenants of the Freehold for life, or for years, 37 H. 6. 27. by Moil. London is ancient Demesn; for they prescribe, that a Villain who hath there dwelled, etc. shall not be taken from thence by Capias, or Attachment, Billing. London is not in the Book of Doomsday. Moil, They make their Protestation in a Writ of Right Patent. Littleton, That is used in divers places, and at this day in Exeter. And by Clench, If a Tenant in ancient Demesn levyeth a Fine of his lands, than he shall not have the privilege, until the Fine be reversed, Quod fuit concessum: If the Lord of a Manor in ancient Demesn, purchaseth all the Tenancies, the whole privilege is gone, which Coke denied. The Case was adjourned. CCXLI Lennard's Case. Trin. 28 Eliz. In the Common Pleas. 2 Roll. 787. 3 Len. 128. IN the Case of Lennard, Custos Brevium, who was Plaintiff in an Action of Trespass for breaking of his Close; The Defendant pleaded, That William Heydon was seized of the lands, and enfeoffed him: And upon Ne enfeoffa pas, the parties were at issue; and it was found by special Verdict, That the said William Heydon was seized, and leased the Lands to the Defendant for years; and afterwards he made a Deed of Feoffment to the same Lessee of the same Lands in Fee, by the words of Dedi & concessi, with a Letter of Attorney within the said Deed, to make Livery to the Lessee; and the Deed of Feoffment was delivered to J. to deliver the same to the said Lessee, who delivered the same accordingly: The Lessee delivered the same to the Attorney named in the Deed, who made Livery accordingly: And it was moved by the Council of the Plaintiff, That upon all this matter, here is not any Feoffment: And by Walmesly, Serjeant, This Deed so delivered took its effect presently as a confirmation; and then the Livery and Seisin comes too late; for as soon as the said Deed was delivered to the Lessee for years, the Law gave to it, its operation to this effect, To vest the Fee and the Freehold in the Lessee by way of confirmation: See for that, Littl. 532, 533. But the whole Court was of a contrary opinion; for it is in the election of the Lessee to take the Conveyance as a Feoffment, or as a confirmation: And here it appeareth upon the Deed, that the intent of both parties was, That the Lessee should take by way of Feoffment, and not of confirmation; for otherwise, to what use should be a Letter of Attorney inserted in the Deed? And here the Lessee hath liberty to make his election how he will take; either by Feoffment, or by confirmation, which election he hath determined by the acceptance of the Livery: And by Anderson, If tenant in tail be disseised, and makes a Charter of Feoffment, and delivers the same to the Disseisor, who delivers the same to the Attorney, named in the Charter, who makes Livery accordingly: here is a good Feoffment, and a discontinuance; and afterwards, after many motions made, and day given to show cause, judgement was given, that the Plaintiff should be barred. CCXLII Rook and Denny 's Case. Trin. 28 Eliz. In the Common-Pleas. IN an Action upon the Case, by Rook against Dennis, for misusing of the Plaintiff's Horse, by occasion of which misuse, the said Horse became blind of one eye, and gall-backed. The Plaintiff counted, That the said Horse was stolen by three Felons, after whom the Plaintiff made fresh suit, and that the Felons were apprehended, and attainted at his suit because justice Windham: Hetley's Rep. 64. Rolls 809. More 572. Hetley's Rep. 64. and that the said Horse came unto the hands of the Defendant, who misused it, Ut supra: The Defendant said, that before that, and the said Attainder of the said Felons, the said Felons had waived the said Horse within his Manor; in which Manor he had waif and estray, etc. And it was holden by the Court, that the same was no Plea, without traversing the fresh suit, whereof the Plaintiff hath declared; for by the fresh suit, the property of the Plaintiff in the said Horse was preserved; and so upon that misuser of the Horse by the Defendant, an Action well lieth: and judgement was given for the Plaintiff accordingly. CCXLIII. Pretiman and Cook 's Case. Hill. 29 Eliz. In the King's Bench. IN Ejectione firmae, The Case was, Ante 129. 1 Cro. 52. 3 Len. 180. That one Hawkins was seized of three Messages in Bury, and had issue, Robert, a son, and Christian and Joan, daughters; and by his Will, devised his three Messages to his wife for life, the remainder of one of them to Robert his son and his heirs, and the remainder of another of them to Christian his daughter, and her heirs; and the remainder of the third Message, to Joan his daughter, and her heirs: And farther willeth, That if any of his said three issues should die without issue, of his, or her body, that then the other surviving, shall have, Totam illam partem, betwixt them equally to be divided; The Devisor died, the wife died, one of the daughters died, having issue; the son died without issue, the sister surviving, entered into the whole part of Robert, the son, and died; her husband held in the land as tenant by the Courtesy; and the question was, If the surviving daughter should have all the part of him that died without issue, or she and the issue of the other daughter? Coke, The survivor shall have the whole: And he said, that the Devisees have an Estate in tail, for the Fee doth not vest in them, for it is incertain which of them shall survive; but when one surviveth, than he shall not have for life, but in Fee; for the words, Totam illam partem, go as well to all the Estate, as to all the things. A. tenant for life, the remainder to B. in tail, the remainder to the right heirs of A. A. grants, Totum statum suum, both the Estates pass, and the Grant includes the whole; See 41 E. 3. Fitz. Br. 541. In Ravishment of Ward, supposing the ravishment of two daughters, Quarum maritagium ad ipsum pertinet, and it was challenged, because he doth not say Maritagia, but the challenge was not allowed; and he said, That if a man deviseth his land wholly to A. that he hath a Fee-simple: See the Case, H. 28 Eliz. the Case between Higham and Harwood: And Coke said, That they had by this Devise a Fee-tail, with a Fee-simple Expectant, each of them severally in the Message to them limited: Golding, Each of the Devisees hath an Estate-tail in the Message, to them devised, and but an Estate for life in the Message which is to accrue upon the death without issue, etc. For no Estate is limited expressly, nor what Estate the survivor shall have; for here are not any words which do import a Fee-simple, as (according to Littleton) imperpetuum; or to do what he will with, etc. See for that 22 E. 3. ad Terminum qui praeteriit: but here are only bare words, of which no farther construction can be made, but for life: And as to the words, Totam illam partem, the same doth not extend farther, than if he said, Partem suam: And he said, that nothing vests in him who survives; for there aught to be two to take by the survivor, or otherwise nothing shall accrue to the survivor; for the words of the Devise are aequaliter inter eos dividend and that which accrues by survivor shall be divided betwixt two, otherwise nothing shall accrue. And if it cannot survive to two, than it shall descend to the issue of the sister who is dead, and to the surviving daughter, and they shall be tenants in common, and not joint-tenants. Clench, These words, Totam illam partem, go only to the house, and not to the Estate in it, which Shute granted: If both the daughters had survived Robert, they should have Fee in the house of Robert not by the Will, but by descent; and this Devise shall not take effect otherwise, and the Devise as to that is void, and then the Common Law shall hold place, and that is, to descend to the issue of the one sister, and the surviving sister: And here the survivor hath but an Estate for life in the house of Robert, and then by the death of Robert, the Fee-simple accrueing to the surviving sister, the moiety of her Estate for life is extinct. And if one of the daughters had died without issue before Robert, the house of such daughter had come to Robert and the other sister, as coparceners; for the son is to have all the Fee, and a moiety of the same executed, and a moiety expectant, and the other sister should have a moiety for life, and so the Devise not void. And afterwards judgement was given against the husband of the surviving daughter. CCXLIV. Hurlston 's Case. Hill. 29 Eliz. In the King's Bench. 4 Len. 160. HUrlston brought a Writ of Error against the Queen, upon a judgement given for the Queen, in the County Palatine of Chester; It was moved by Gawdy, the Queen's Sergeant, that the Writ did not lie; for he ought to sue to the Queen by Petition, which see 23 E. 3. 22. A Writ of Error cannot be granted, Absque speciali gratia Dom. Regis: See also 22 E. 3. 3. And the case was, That judgement was given for the Queen in a Scire facias, to reverse the Patent of the Constableship of the Castle of Chester, and by him in Chester, there are many Courts; King's-Bench, Common-Pleas, Exchequer, Chancery: And here a judgement or Decree in the Chancery cannot be reversed, but by Parliament; and so he conceived of a judgement given in the Chancery at Chester, and it cannot be reversed in the King's-Bench: Also they have a custom in Chester, that they may reverse within certain Months the judgement before. Clench, There needs no Petition, for both the Patentees claim from the Queen; and whether there be Error or not, the Queen is not prejudiced: Coke, There needs no Petition, for it is now past, for the Queen's Attorney's hand is to it; 11 Eliz. In one Haunce's case, a Writ of Error was brought against the Queen, and they were compelled to sue to the Queen by Petition: Coke, In the Exchequer, If an erroneous judgement be given for the Queen in a Bill of Intrusion, the party shall have a Writ of Error against the Queen without any Petition. It was the case of one Eliz. Mordant, 15 Eliz. she brought a Writ of Error to reverse a Fine, levied by her, during her minority, against the Queen, and the proceeding in it was stayed, because she had not sued to the Queen by Petition first: Wray, Many Outlawries have been reversed by Error without any Petition, and yet in such case the Queen hath an immediate interest. CCXLV. Gomersall and Gomersall 's Case. Mich. 29 Eliz. In the King's Bench. IN an Account, The Plaintiff charged the Defendant as Bailiff of his Shop, Curam habens, & administrationem bonorum: The Defendant answered to the goods only, and said nothing to the Shop: Tanfield moved the same matter for Error in arrest of judgement: As 14. H. 4. 309, 310. One charged another as Bailiff of his house, Et curam habens bonorum in eo existen. the traverse was, That he was not Bailiff of the house, Pro ut: that is good, and goeth to all, but he cannot answer to the goods, and say nothing to the house: See 49 E. 3. 7. Br. Accomp. 21. A man brought an Account against one as Bailiff of his Manor, Habens curam of twenty Oxen and Cows, and certain quarters of Corn: And by Belknap, If he have the Manor and no goods, yet he shall account for the Manor, and it shall be no Plea, to say that the Plaintiff sold him the goods without traversing, without that, that he was his Bailiff to account render: And as to the Manor, he may say, that the Plaintiff leased the same to himself for years, without that, that he was his Bailiff: Another exception was taken by him, That the Plaintiff chargeth him with moneys, Ad merchandizandum; And he traverseth, that he was not his Receivor denarior. ad computandum pro ut: and so he doth not meet with the Plaintiff, and so it is no issue. And it is not helped by the Statute of Jeofailes, 32 H. 8. but mis-joining of issue is helped by that Statute, 19 Eliz. W. an Attorney of the Common-Pleas, did charge another Attorney of the same Court, with a Covenant to have three years' board in marriage with the Defendant's daughter; and he pleaded that he did not promise two years' board, and so issue was joined and tried, and the same could not be helped by the Statute, because it was no issue, and did not meet with the Plaintiff: So if one charge in the Debet & detinet, and he answers to the Detinet only, it is no issue; and therefore it is not helped by the Statute. In 29 H. 6. in trespass for entering into his house, and taking of his goods, the Defendant pleaded, Non intravit, and the issue was tried, and damages given; and because the taking of the goods was not also in issue, all was void, 4 E. 3. One shall not account by parcels, because the Action is entire: See 3 E. 3. 8. and Book of Entries, 202. A Precedent, 14 H. 7. That the Verdict was not full, and did not go to the whole, and therefore was void. Helena, Serjeant, contrary: And as to the first point he said, That there is a Case in 9 E. 3. Account. 35. where the Plaintiff chargeth the Defendant in account as Bailiff of his house, and that he had the administration of his goods; viz. Forty sacks of wool; and upon issue joined, the jury found, that he was not Bailiff of his house; but they farther find, that he had received the forty sacks of wool, to render account of the same; and the Plaintiff in that Case had judgement for the sacks of wool; although there was no Verdict found for the house: See 5 H. 7. 24. Where if a jury be charged with several issues, and the one of the issues is found, and the other not; that the same makes no discontinuance: or if one of the issues be discontinued, yet it is no discontinuance as to the whole. But admit the same be not helped by the Common Law, yet he said it is helped by the Statute of 32 H. 8. of Jeofailes; which is, Non obstant. discontinuance or miscontinuance. Daniel, to the same purpose: And he said that the Books before cited of 14 H. 4. and 49 E. 3. are not ruled, nor the Cases there adjudged; in the one Book the Defendant pleaded, That the Plaintiff gave the goods unto him, and in the other Book, that he sold the said goods unto him, and demanded judgement of the Action: And he said, That it is no good answer; for they are Pleas only before the Auditors, and not in an Action upon Account: and farther he said, That although the Verdict be found but for part, yet it is good; for no damages are to be recovered in an Account: In trespass, it is true, if one issue be found, and not the other, and joint-damages be given; the Verdict is not good for any part, but if several damages be given, than it is good, as it is ruled in 21 H. 6. Coke, 26 H. 8. is, That the Plaintiff cannot declare generally of an house, Curam habens, & administrationem bonorum; but he must farther say: Twenty quarters of Corn, or the like, etc. In the principal Case, it is a joint-charge and but one for the shop and goods; and he answers unto one only, but he ought to answer to all, or else it is no answer at all. But Coke found out another thing, viz. That there is a thing put in issue which is not in the Verdict, nor found, nor touched in the Verdict, and that was the Verdict of all which is found not to be good, and it is not helped by the Statute of 32 H. 8. of Jeofailes. I grant, that discontinuances are helped by the Statute of 32 H. 8. but imperfect Verdicts are not helped thereby: Vid. 205. It was a great Case argued in the Exchequer Chamber, and it was Brache's Case: An information was against Brache, for entering into a house, and an hundred Acres of Lands in Stepney; He pleaded, not guilty, The jury found him guilty for the hundred acres, but said nothing as to the house; upon which a Writ of Error was brought, and judgement was reversed: and he said, it was not a discontinuance, but no verdict for part. Daniel, That was the default of the Clerks who did not enter it, and it hath been the usage to amend the defaults done by the Clerks in another Term: All the justices said, That is true, if the Postea be brought in and not entered; but here it is entered in the Roll in this form. Daniel, Where I charge one in Account with so much by the hands of such a one, and so much by the hands of such a one, although there be but one Absque hoc to them all, yet they are as several issues. The Court answered, Not so, unless there be several issues joined to every one of them. But by Gawdy, justice, If there be several issues, and the one be found, and the other not, no judgement shall be given: Clench, justice, In the principal Case, It is not a charge of the goods, but in respect of the shop, therefore that aught to be traversed: Shute, justice, The Traverse of the shop alone is not good: Egerton the Queen's Solicitor said, That the Books might be reconciled, and that there needed not a Traverse to the goods, for the Traverse of the shop, Prout, is an answer to all: But now he takes issue upon the goods only, which issue is not warranted by the Declaration; and he said, That if one charge me as Bailiff of his goods, ad Merchandizandum, I shall answer for the increase, and shall be punished for my negligence; But if he charge me as his Receiver, ad computandum, I shall not be answerable, but for the bare money, or thing which was delivered. CCXLVI. Mich. 29 Eliz. In the Common-Pleas. Postea 215. IN Trespass for taking of goods, the Defendant justified, as Bailiff to J. S. The Plaintiff by Replication saith, That the Defendant pressed his of his own wrong, Absque hoc, that he is Bailiff to J. S. And by Anderson, 1 Leon. 50. If one hath good cause to distrain my , and a stranger of his own head, without any warrant or authority takes my goods, not as servant or Bailiff to another, and I bring Trespass against him, he cannot excuse himself by saying, that he did it as Bailiff, etc. for once he was a Trespassor; but if one do distrain as Bailiff, although that in truth he be not Bailiff, if afterwards, he in whose right he justifies, assents to it, he shall not be punished as a Trespassor; for this assent shall have relation unto the time of the distress taken, which Periam concessit, and also Rhodes. A. distrains, and being asked for what cause he distrains, and he assigns a cause which is not sufficient, and afterwards an Action is brought against him, 3 Co. 26. he may avow the distress for another cause. CCXLVII Mich. 29 Eliz. In the Common-Pleas. THE Case was, That the Queen gave Lands in tail to hold in Capite, and afterwards granted the Reversion: Windham, In this Case the Tenure is not incident to the Reversion, but is in respect of the person; and therefore the Tenure in Capite doth remain; and the Donee shall hold of the Queen as in gross: And also the Grantee of the Reversion, shall hold of the Queen in Capite; and so two Tenors in Capite for the same Lands: See 30 H. 8. Dyer 45. If the Queen in this cause had reserved a Rent upon the Gift in tail, the same should go with the Reversion. CCXLVIII. Dighton and Clark 's Case. Mich. 29 Eliz. In the King's-Bench. DIghton brought Debt upon a Bond, the Condition of which was, That whereas the Plaintiff was in quiet possession of such lands, If now neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said lands by any indirect means, but by due course of Law, That then, etc. that Defendant pleaded, That neither J. S. nor J. D. or J. G. did disturb the Plaintiff by any indirect means, but by due course of Law; upon which there was a demurrer. Godfrey, The Plea in Bar is not good; for there is a Negativa pregnans, (scil.) a Negative which implies an Affirmative: See 21 H. 6.9. In a Writ of Entry, Sur Disseisin, the Defendant saith, That the Demandant by his Deed, after the Darrein continuance, did confirm and ratify the possession of the Tenant, etc. The Demandant said, Not his Deed after the Darrein continuance; and the same was holden to be, Negativa pregnans; See more there, and see also 5 H. 7. 7. And see farther, 39 H. 6. 8, 9 Another Exception was taken to the Plea in Bar, because he hath pleaded, That neque J. S. neque J. D. neque J. G. had disturbed the Demandant by any indirect means, but only by due course of Law; and that issue cannot be tried; not by the Country, for they cannot know what is a due course of Law; and by the Court it cannot be tried, for the Defendant hath not certainly showed by what due course of Law the Demandant hath been disturbed, which see 22 E. 4. 40, 41, etc. The Lord Lisle's Case. In Debt upon a Bond, the Condition was, That if the Defendant before such a day, or any other for him, and in his name, come to B. and there show unto the Plaintiff, or one of his Council, by him assigned, a sufficient and lawful discharge of an annual Rent which the Plaintiff claims out of two houses of the Defendant in B. aforesaid, That then the said Bond shall be void; and the Defendant said, That he at the day assigned, contained in the Condition, that A. and B. by assignment of the Defendant came to B. and tendered to show to N. and W. of the Plaintiff's Council, a sufficient discharge of the said annual Rent, and that they did refuse to see it, upon which there was a demurrer in Law: and judgement was given for the Plaintiff, and that the Plea was no Plea; for the Defendant ought to have showed in his Plea, what manner of discharge he would have showed, as a release, unity of possession, etc. But as the Case is here; If the Plaintiff shall traverse the Plea in Bar, the issue joined upon it cannot be tried, for the jury cannot know which is a lawful and sufficient discharge, but the same shall be tried by the Court; for if the Defendant had tendered to the Plaintiff a discharge by unity of possession, the jury cannot know if it be a sufficient discharge: and as the Plea is here, he hath not showed what discharge he would have showed to the said Council; and therefore we cannot judge of the same: If one be bound to plead a sufficient Plea before such a day, in such a Court, in such an Action, it is not sufficient that he hath pleaded a sufficient Plea, but he ought to show what Plea he hath pleaded, otherwise the Court cannot judge if the Plea be sufficient or not: Vid. 35 H. 6. 19 and 37 H. 8. Br. Cand. 16. where a man will plead that he hath saved the party harmless, he ought to show how. Shute, justice, and Clench, justice, If the Defendant had pleaded, not disturbed by any indirect means, such a Plea had been good enough: Gawdy, justice, If he had pleaded, not disturbed contra formam Conditionis praed. it had been a good Plea; In a Writ of Entry, Ne entra pas, contra formam Statuti, He did not alien within age, is a Negative pregnant: but the party may say, he did not alien, Modo & forma; all the part to this Plea which comes after the But, is surplusage, and Negation: Gawdy, It is a Plea which is pleaded with all the words of the Condition entirely. Clench, The Case put by Godfrey, 22 E. 4. differs from the Case at Bar: For there he pleaded all in the affirmative, therefore in such a Case he ought to plead specially; but in the Case at Bar all is in the Negative, in which Case such special pleading is not necessary. If I be bounden that I shall not go out of Westminster-hall until night, but tarry in the Hall till night, In an Action against me upon that Bond, I may plead in iisdem verbis: If I be bound upon Condition, That I will not return to Serjeant's-Inn the direct way, but by St. Giles, I shall plead, in totidem verbis: Godfrey, I agree those Cases, for the matter which comes after the But, is triable by the Country, but so it is not in the principal Case: Clench, But is but a word of surplusage, and if that, and all which follows had been left out, it had been well enough. It was adjourned. CCXLIX. Courtney and Kelloway 's Case. Mich. 26 Eliz. In the Common-Pleas. COurtney brought an Action upon the Statute of 5 Eliz. concerning Perjury, against Kelloway, and declared, That where Sir Gawen Carew had heretofore brought an Action upon the Case against the now Plaintiff for slanderous words, viz. because that the said now Plaintiff had affirmed, that the said Sir Gawen had had the Pocks, To which Declaration, the now Plaintiff had pleaded, that Kelloway, the now Defendant, reported to the said now Plaintiff, That he himself, i. e. Kelloway, had heretofore healed the said Sir Gawen of the Pocks, Absque hoc, that he spoke them simply of his own head; upon which they were at issue, and the said Kelloway was produced as a witness on the part of the said Courtney; and the said Kelloway, upon his oath, deposed at the Trial of the said issue, That he never had reported to the now Plaintiff, That he himself had healed the said Sir Gawen of the Pocks; for which the jury found for Gawen, and also assessed greater damages in respect that they found, That Courtney spoke the said words of his own head, etc. and not of the report of Kelloway. It was the opinion of the whole Court, that the now Plaintiff should have this Action; For notwithstanding that that oath doth not trench much unto the proof or disproof of the issue, yet because that by reason of the oath the jury have aggravated the damages, the Action doth lie, as in case of Trespass of breaking his Close, and spoiling his grass, the Defendant pleads, Not guilty; and at the trial of the issue a witness is produced on the Plaintiff's part, who deposeth upon his oath, That the Land where, etc. was so rich in grass, that it was ready to be mowed whereas in truth none, or very little grass was there growing, yet if the jury find upon other evidence the Defendant guilty, it is an occasion to induce the jury to tax the greater damages: all which the Court granted. CCL. Holland and Drake 's Case. Mich. 26 Eliz. In the Common Pleas. IN an Ejectione firmae, brought by Holland against Drake, and five others; Drake pleaded, Not guilty; the other five, Quoad 20 acres, pleaded Not guilty also; and as to the residue, that long time before that, Andrews (Lessor of the Plaintiff) had any thing in the land; That Hen. Lord Cromwell was seized, and leased the same to them for two years, and afterwards granted the Reversion to Andrews, to whom they attorned; Andrews within the said term, entered upon them, and leased to the Plaintiff upon whom they reentered, as was lawful for them to do, The Plaintiff by Replication, said, That long time before the said Lord Cromwell had any thing, etc. Andrews himself was seized, until by the said Lord Cromwell disseised, and leased to the Defendants, Ut supra, and granted the Reversion to the said Andrews with attornment, who entered, and leased to the Plaintiff, who entered, and was possessed, until by the said Defendants ejected, Modo & forma, pro ut, etc. And upon this Replication, the said five Defendants did demur in Law. It was argued, That the Plaintiff in his Replication, hath departed from his Declaration; for by his Declaration, he hath supposed himself to be ejected by all the six Defendants; and in the Replication he saith, That he was possessed until by the said five Defendants, who plead in Bar he was ejected; so he hath departed from his Declaration in the number of the Ejectors; for he ought to have said, until he by the said five, and also by the said Drake was ejected: as 12 E. 4. 6. in trespass upon Entry upon the Statute of 5 R. 2. against J. and E. J. died pendant the Writ, and E. pleaded in Bar, and the Plaintiff did reply and conclude, and so was he seized until the said E. Simul cum dicto: J. named in the Writ, entered upon the Plaintiff, etc. But the opinion of the whole Court was clear to the contrary; for here in the case at Bar, Drake, by his several issue, which he hath joined with the Plaintiff, upon Not guilty, is severed from the other five Defendants; and then when they plead in Bar, The Plaintiff ought to reply to them without meddling with Drake, who upon his several Plea, and issue joined upon it, is a stranger to them; as if the said five had been the only Defendants: But if he had not replied to Drake, as if Drake had made default, or had died after the Writ brought; as in the case before cited of 28 E. 4. there he ought to have replied, as it is objected: So in an Ejectione firmae of twenty acres, The Defendant, as to ten acres pleads, Not guilty; upon which they are at issue; and the Plaintiff replies, and says, as to the other ten acres, and so was he possessed, until by the Defendant of the said ten acres he was ejected; this is good without speaking of the other ten acres, upon which the general issue is joined. And the Court was ready to have given judgement for the Plaintiff; but they looked upon the Record, and seeing that one issue in this Action was to be tried between the Plaintiff and the said Drake: And although the Plaintiff offered to release his damages, and the issue joined, and to have judgement against the five Defendants who had demurred; Vid. antea 41. yet the Court was clear of opinion, that no judgement should be given upon the said Demurrer, until the said issue was tried; for the Action is an Ejectione firmae, in which Case the possession of the land is to be recovered; and it may be, for any thing that appeareth, That Drake, who hath pleaded the general issue, hath Title to the land, etc. But if this Action had been an Action of Trespass, there in such case, Ut supra, upon release of damages, and the issue joined, the Plaintiff should have judgement presently. CCLI. French 's Case. Mich. 26 Eliz. In the King's Bench. IT was presented before the Coroner, That John French was, Felo de se, and that certain goods of the said John French, were in the possession of J. S. and this presentment was certified into the King's Bench; upon which Process issued forth against the said J. S. and continued until he was Outlawed. And now came J. S. and cast in his Writ of Error, to reverse the said Outlawry, and assigned for Error, because that in the presentment upon which he was Outlawed, there is not any addition given to the said J. S. And at the first, it was doubted; If upon that presentment Process of Outlawry did lie: and Ive, one of the chief Clerks of the Crown-Office, said to the Court, That such Process in such case did lie; and that he could show five hundred precedents to that purpose. Another matter was moved upon the Statute of 1 H. 5. 5. of Additions: If this Outlawry by the Statute aforesaid, aught to be reversed by default of Addition; for as much as the said Statute speaks only of Outlawries upon original Writs in personal Actions, Appeals and Indictments; But it was agreed by the whole Court, That as to this purpose, the presentment should be accounted in Law as an Indictment, and afterwards the Outlawry against French was reversed. CCLII. Mich. 26 Eliz. In the King's Bench. A Lease for thirty years was made by Husband and Wife, if they so long should live, and if they die, etc. That the land should remain to A. their son, during the term aforesaid. And it was holden by Wray, justice, That if the Husband and Wife do die within the term, that the son should have the land, De novo for thirty years: But Gawdy was of opinion, that he shall have it for so many years, which after their death should be expired. CCLIII. Cooper 's Case. Mich. 26 Eliz. In the King's Bench. IN an Ejectionefirmae, The Case was, That the Husband and Wife had right to enter into certain lands in the right of the wife; and a Deed of Lease for years is written in the name of the Husband and Wife, to one A. for to try the Title; and also a Letter of Attorney to B. to enter into the land, and to deliver the said Deed of Lease to the said A. in the name of the Husband and Wife, 3 Cro. 118. 2 Cro. 617. Yel. and as well the Letter of Attorney as the said Deed of Lease are sealed by the said Husband and Wife with their seals, and entry and delivery is made accordingly; the said A. enters, and upon Ejectment, brings an Ejectione firmae, and the whole matter aforesaid was found by special Verdict; and the Plaintiff had judgement to recover, for the special matter found by Verdict, i. e. the Deed of Lease, and the Letter of Attorney, do maintain the Declaration well enough; and here is a Lease made by Husband and Wife, according to that, the Plaintiff hath declared. CCLIV. Mich. 29 Eliz. In the King's-Bench. IN an Action of Trespass for breaking of the Plaintiff's Close, Owen 114. 1 Cro. 876. 2 Cro. 195. 229. Godb. 123. and killing of eighteen Coneys there; the Defendant, as to all the Trespass, but to the kill of the Coneys, pleaded, Not guilty: and as to the kill of the said Coneys, He said that the place Where, is a Heath, in which he hath common of pasture, and that he found the Coneys eating the grass there, and he killed them, and carried them away, as it was lawful for him to do: Cowper, Although Coneys be, Ferae naturae, yet when they are in in-grounds, they are reduced to such a property, that if they be killed or carried away, I shall have an Action of trespass, Vid. 43 E. 3. 24. And if a Deer be hunted by the Plaintiff in a Forest, and afterwards in hunting it be driven out of the Forest, and the Forester doth follow the chase, and the Plaintiff kill the Deer in his own grounds, yet the Forester may enter into the land of the Plaintiff, and re-take the Deer, 12 H. 8. 9 And although the Defendant hath common in the soil; yet he cannot meddle with the wood there, nor with the land, nor with the grass, otherwise than with the feeding of his , for he hath but a faint interest; And if he who hath the Freehold in the land, bringeth an Action of trespass against such a commoner for entering into his land, and the Defendant plead, Not guilty, he cannot give in evidence that he hath common there: And it hath been late adjudged, That where commoners prescribe, Godb. 123. That the Lord hath used to put in such a pasture but so many beasts, that such a prescription is a void prescription: It was argued on the other side, That the owner of the soil, hath not the true property of the Coneys in him, but a kind of property: And see F.N. B. 86 and 87. Quare clausum fregit, & 20 Cuniculos cepit: Against a stranger he may have an Action, but not against the commoner, because he hath wrong in his common by the feeding of the Coneys there; for although he hath not an interest in the soil, yet he hath an interest in the profits of it, and a commoner may distrain the beasts of him who hath not right of common for damage-feasance, as the books are, 4 H. 7. 3. 15 H. 7. 15. and there the commoner hath not any remedy, if he cannot enter and kill the Coneys, for he cannot take them damage-feasance, nor can impound them; for no Replevin lieth of them: if the owner of the soil ploweth the lands, yet the commoner may put in his , claiming his common, and he may well justify the same, because the wrong beginneth in the owner of the soil. At another day, the Case was moved again; and than it was argued by Coke, and he said, The point is; Whether a commoner having common of pasture, may kill the Coneys which are upon the ground; and he argued, That he might not. And first, he said, It is to be considered, what interest he who hath the Freehold may have in such things as are, Ferae naturae; and than what authority a commoner hath in the ground in which he hath common. As to the first point, he said, That although such beasts are, Ferae naturae, yet they are reduced to such a property when they are in my ground by reason of my possession which I then have of them, that I may have an Action of trespass against him who taketh them away: as in the book in, 42 E. 3. If one hath Deer in his Park, and another taketh them away, he may have an Action of Trespass for the taking of them: See 12 H. 8. If a Keeper or Forrester follow a Buck which is chase out of the Park or Forrest, although he who hunteth him killeth the Buck in his own ground, yet the Keeper or Forester may enter into his ground, and seize the Deer, because the property and possession of the Deer is yet in them by their pursuit: In 7 H. 6. It is holden, That if a wild beast doth go out of the Park, the owner of the soil hath lost his property in it; but upon the said book, it may be well collected, that whilst it remains in the Park, That the owner of the Park hath property in it; for 18 E. 4. 14. It is doubted, whether a man can have property in such things, which are, Ferae naturae: But in 10 H. 7. 6. it is holden, That an action of Account lieth for things which are, Ferae naturae: and see 14 H. 8. 1. In the Bishop of London's Case, and 22 H. 6. 59 That as long as such things are in the party's ground, they are in his possession, and he hath a property in them; and in an Action brought for them; The Writ shall be, Quare damas suas cepit, by Newton; And see in the Register, fol. 102. where an Action was brought, Quare ducent. Cuniculos suos pretii, etc. cepit. It hath been objected on the other side, That the Defendant hath common there; To that I answer, Admit he hath common, yet he hath not an interest in the soil; for he cannot meddle with the wood, grass, or other profit arising of the soil, but the interest which the commoner hath, is only the feeding of the grass with ●he mouths of his : and if he who hath the Freehold in the ground, doth bring an Action against the commoner for entering into his land; If the Defendant pleads, Not guilty, he cannot give evidence that he hath common there; for such evidence will not maintain the issue: See 22 Ass. A commoner cannot take in the of a stranger to agist upon the common; and therewith agreeth the book of 12 H. 8. and so it hath been adjudged in this Court. Godfrey, contrary: And he argued, That it is lawful for the commoner to kill the Coneys feeding in the common: And he agreed all the cases which were put by Coke; and farther he said, That the owner of the ground had not an absolute, but a kind of a qualified property in the Coneys; and therefore see the Book of 3 H. 6. and F.N. B. If a Writ of Trespass be brought, Quare Cuniculas suas cepit, the Writ shall abate; and yet he hath a kind of property, or a possession rather in them. I grant that against a stranger the Plaintiff might have his Action for killing of his Coneys, but not against the commoner, because the commoner hath a wrong done unto him by the Coneys, eating of his common, and therefore he may kill them; and although the commoner may not meddle with the land, because he hath not an interest in it; yet in some cases he may meddle with the profits of it, and he may distrain the of a stranger there, damage-feasance; as the Book is in 15 H. 7. I grant that it is not lawful for Tenant for life to kill the Coneys of him who hath free-warren in the land. For if a man bringeth an Action of Trespass, Quare warrenam suam intravit, & Cuniculos suos cepit: It is no Plea for the Defendant to say, That it is his Freehold. See 43. E. 3. accordingly. In L. 5 E. 4. In Trespass, Quare clausum fregit, & Cuniculos suos cepit: The Defendant said, That the Plaintiff made a Lease at will to J. S. of the land, and that he, as servant to the said J. S. did kill the Coneys there, and it was holden a good Plea; and yet it is there said, That by the grant of the land, the Coneys do not pass; but the reason of the book might be, as I conceive, because the feeding on the land with the Coneys, is to his damage, and therefore, that he might justify the kill of them: and so are the Books of 2 H. 7. and 4 E. 4. If I have common of pasture in lands, and the Tenant ploweth up the land, I shall have an action upon the Case in the nature of a Quod permittat. And in 9 E. 4. If one hath lands adjoining to my land, and levyeth a Nuisance, I may enter upon the land, and abate the Nuisance: So if a man taketh my goods and carrieth them unto his own lands, I may enter therein, and seize my goods: So if a Tenant of the Freehold ploughs the land and soweth it with corn, the commoner may put in his , and therewith eat the corn growing upon the land: So if a man do falsely imprison me, and put me in his house, I may justify the breaking open of his house to get forth. In 21 H. 6. All the Inhabitants of a Town do prescribe to have common in such a field every year after Harvest, If one particular man who hath Freehold land, with the said field sowed, will not within convenient time gather in his Corn, but suffer the same to continue there of purpose to bar the Inhabitants of their Common, The Inhabitants of the Town may put in their into the said field, and therewith eat his Corn, and he shall have no remedy for their so doing; and he put the Question, What remedy the Commoner should have for the eating and destroying of his Common which his should have, for that he can neither distrain them damage-feasance, nor impound them: for a Replevin doth not lie of Coneys; and therefore he said, he hath no other remedy but to kill and destroy the Coneys. See 19 E. 3. and F. N. B. If the Lord doth surcharge the Common, the Commoner may have an Action against him; but in this Case he can have no Action: Gawdy, justice, The Commoner cannot destroy or kill the Coneys, because he may have other remedy: Shute, justice, A Commoner cannot take or distrain the beasts of the Tenant of the land for damage-feasance, therefore he cannot take or destroy the Coneys which are upon the land, because he may have other remedy; for he may have an Action upon the Case, or an Assize for putting of the Coneys upon the land, if the owner of the land leave not sufficient Common for the of the Commoner; and afterwards judgement was given for the Plaintiff. CCLU. Manwood and Burston 's Case. Hill. 29 Eliz. In the Exchequer-Chamber. MAnwood, chief Baron of the Exchequer, brought an Action upon the Case against Burston, and declared, That whereas Agnes Griffin was possessed of the third part of the Manor and Rectory of Higham: for term of years, by Demise of the Master and Fellows of St. John's College in Cambridge, made to Worthington; and whereas John Sutton was possessed of another third part of the said Manor and Rectory by the same Demise; and whereas John Palmer was possessed of another third part of the said Manor and Rectory for the same term, The said Burston, 20 Aprilis, 28 Eliz. in consideration that the said Plaintiff, Obtinuisset de praed. Agnet. totum terminum suum assurari ipsis Rogero Manwood, and the Defendant; (scil.) Unam medietatem dictae tertiae partis dicto Rogero, & alteram medietatem, unto the said Defendant, apud London, in such a Ward, Assumpsit eidem querent. Quod si idem querens procuraret dictam Johannem Palmer, to assent and sell his third part, the one moiety to the Plaintiff, and the other to the Defendant for 320 l. That the Defendant solveret aequam portionem inde, (scil.) 160 l. And licet, the Plaintiff, had procured the said Palmer, 22 Aprilis, an. supradict. to assent and sell the third part for 320 l. to be paid 3 Maii, the same year, and the rest at another day; and licet, the said Plaintiff was ready to pay his part, and offered the same, (scil.) 160 l. And licet the said Palmer was ready and offered to sell and convey his term aforesaid, etc. yet the said Defendant, solvere aequam partem suam, (scil.) 160 l. Non fuit paratus sed recusavit. for which the said Palmer, Noluit vendere his part or interest, by which the Plaintiff was damnified, etc. The Defendant pleaded, That after the Assumpsit, the Plaintiff did discharge the Defendant of the said promise; upon which they were at issue; and it was found for the Plaintiff, who had judgement to recover. Upon which Burston brought a Writ of Error in the Exchequer Chamber. And divers Errors were assigned: 1. It is not showed at what time the term of Agnes Griffin did begin: 2. The Lease of the College is not showed to be by writing: 3. It is not showed for what term Palmer was possessed: 4. It is not showed at what time the Plaintiff had obtained the part of Agnes: 5. The Assumpsit is laid to be, apud London, in Warda de Farrington extra, and so apud London; and extra London, which is repugnant: 6. The Plaintiff hath declared, That the College had leased to Worthington; and that A. and B. were possessed, Virtute dimissionis praed. To these Errors, the chief Baron put in his answer in writing: As to the two first, they are in the recital, and but matter of induction to the consideration, and not traversable, nor otherwise material to be alleged for the commencement of them, or for the Rent, but only the ending of the term to come is sufficient: As in an Action upon the Case; That whereas the Defendant was indebted unto the Plaintiff in divers sums of money, amounting to 40 l. the Defendant, in consideration thereof, promised, etc. the Plaintiff needs not to show any certainty of the Contract, or other circumstance, how, or in what manner the Debt did accrue, or begin: As in an Action upon the Case, The Plaintiff declares, That whereas he hath married the daughter of the Defendant, the Defendant in consideration that the Plaintiff would assure to his said Wife, Land to the yearly value of 20 l. for her jointure, as shall be advised by the Council of the Defendant, That he will pay unto the Plaintiff 100 l. And licet the Plaintiff hath made such a jointure of Land in S. unto such yearly value for the use of his Wife, by the advice of the Council of the Defendant, etc. Here the Plaintiff needs not to show what manner of Conveyance, or Assurance was advised; for it is sufficient, if the consideration recited be proved in evidence with the circumstances; but in pleading, it is not traversable nor issuable. The third Error is mistaken: The fourth is answered as the two first; for it is but matter of recital; and the consideration past and executed before the Assumpsit, and not at the time of the Assumpsit, and but an Induction or conveyance to the Promise: The fifth matter is misconstrued; for there are two Wards of Farrington, infra, & extra: infra the Walls, and extra the Walls, and yet both, apud London, and extra is to be referred to Farrington, and not to London; and there ought to be made a point after extra; as Farrington extra; London. The sixth is mistaken; for there is no Error in that: for the Assignee is possessed, Virtute dimissionis; for the original Lease is the virtue and strength of the possession of the Assignee: But if these exceptions had been material, yet forasmuch as the issue is not upon the Assumpsit, for that is confessed by the Defendant, and by that the recital, consideration, and all the special matters confessed to be true: But the Defendant hath pleaded a new matter after the Assumpsit, in discharge of the Assumpsit, which discharge is found against him, all the particulars in which the Errors are assigned, are out of the Book; and now the matter of discharge is only material: As in debt for arrearages of Rent reserved on a Lease for years, if the time and place of the making of the Lease be not set forth in the Declaration, the Declaration is not good. But if the Defendant plead a collateral matter; as release of the arrearages, or other such matter, now all the imperfections of the Declaration are waved, etc. At another day the matter was argued again. There are three manner of considerations upon which an Assumpsit may be grounded: 1 A debt precedent: 2 Where he to whom such a promise is made, is damnified by doing any thing, or spends his labour at the instance of the Promiser, although no benefit cometh to the Promiser: As I agree with a Surgeon to cure a poor man (who is a stranger unto me) of a sore, who doth it accordingly, he shall have an Action: 3 Or there is a present consideration, etc. The first Exception was, because the Assumpsit being laid to procure such a Lease which another had, i. e. one A. it is not showed in the Declaration, in facto, That A. had such a Lease, and if he had not any such Lease, than there cannot be any consideration to procure it: For, Ex nihilo, nihil fit. Secondly, the Declaration is, That A. was possessed of a Lease for years, to be ended and determined in An. 1606. without showing any beginning of it; and although that Lease be but matter of Conveyance and inducement, yet, because it is the ground of the Action, it ought to be certainly and sufficiently set forth. Thirdly, the Lease to be procured, is laid to be made by a College in Cambridge, and it is not showed for what term of years, i. e. for 21 years or under; for if it be above, than such Lease is void. Fourthly, It is not laid in the Declaration, that the Lease was by writing, and then void; for a College cannot make a Lease without writing; and it shall be intended it was made without Deed, because it is not laid to be by Deed: As if a Corporation makes a Lease for life, and afterwards granteth the Reversion for years, he that will entitle himself to the said Reversion, aught to say in pleading That he made the Lease for life by Deed, although the Lease for life in such case be but matter of Conveyance: Fifthly, It is not laid in the Declaration, That the Lease to be assured was in esse, and had continuance at the time it was to be assured; for although it be laid to be in esse, at the time of the promise, yet being a particular interest, it shall not be intended to continue, if it be not specially showed: As 10 H. 7. 26. Sixthly, Here the Plaintiff hath not cause of Action, but Palmer, for the Assumpsit upon which the Action is grounded, the money is to be payable to Palmer, not to the Plaintiff, 2 E. 4. 5. My Bailiff lets my Land to Farm, rendering Rend, he shall not have an Action for the Rent, but I myself, in whose right he leased: 25 Eliz. It was the Case of one Crewe, I promised unto J. S. 25 Eliz. Crew's Case. That in consideration that he will make unto me a Lease for years of such Lands, I will assign the same to his servant. If he will not make the Lease, not J. S. but his servant shall have Action upon the promise: and although the Defendant hath pleaded collateral matter, by which the promise is confessed, yet the same doth not amend the matter; for if the Declaration be insufficient, the Court, ex Officio, aught to stay judgement: As 6 H. 7. 10. In trespass, the Defendant pleads, That there was an Accord betwixt them, that in satisfaction of the said Trespass, he should pay to the Plaintiff such a sum, and make two Windows, the which sum he had paid, before the day, without speaking any thing of the Windows, The Plaintiff pleaded, No such Accord, and it was found for the Plaintiff; and although the Plaintiff doth admit the Plea as good, yet the Court, ex Officio, shall stay the judgement: See the Book of Entries 4. A Carpenter brought an Action upon the Case, and declared generally upon the Assumpsit, Pro diversis rebus vocat. Carpenter's wares, & pro diversis laboribus per querent. at the instance of the Defendant, in art lignaria, etc. and holden good without any particulars. It was adjourned. CCLVI pain 's Case. Mich. 29 Eliz. In the Exchequer-Chamber. A Writ of Error was brought by pain, 3 Len. 144. Treasurer of the Records of the King's-Bench, in the Exchequer-Chamber, upon a judgement given in the Court of Exchequer, upon an assignment of a Lease for years, by the Earl of Oxford, to the Queen: One Error is assigned, That whereas the issue was joined upon intrusion, in taking of the profits, and so two matters put in issue; The jury have found pain guilty of intrusion; but have said nothing of the taking of the profits, and so the verdict doth not fully meet with the issue: But the great matter of the Ease was upon this point; The Information is, That the Assignment to the Queen was 16 Maii, the Intrusion, 17 Maii, the enrolment of the Deed of Assignment, the 18. of May. So it appeareth upon the Record, That the intrusion is supposed to be done before the Queen have any interest in the Lands, in which the intrusion is supposed, for nothing was in the Queen before the enrolment; For the Queen is a Corporation of State, of such prerogative and excellency, that she cannot give or take interest in any Lands without matter of Record; and this Lease is a Chattel Real, and interest in Lands: See as to the enrolment, 1 H. 7. 30, 31. 5 E. 4. 7. 7 E. 4. 16. But I grant that if the Lessee for years be outlawed, the Lease shall be in the King, without Office, for the Outlawry itself is a sufficient Record to entitle the King to it: If the Queen makes a Lease for years of Land, rendering Rend, with clause, That if the Rent be behind, that the Lease shall cease if the Rent be not paid, it was agreed here in Sir Moil finch's Case, Sir Moil Finches Case. That the Lessee continuing his possession, shall not be accounted an intruder before Office thereof found; but he shall be accountant to the Queen for the profits, as Bailiff of his own wrong. But here we are charged with intrusion: It hath been doubted, if personal things be in the King without Office, 37 H. 6. but now it is clear that it is: as 35 E. 3. Br. Praerogat. 113. The Villain of the the King purchaseth goods, the property thereof is in the King without seizure, and so of all personal Chattels, because transitory, 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon Record, that this Deed of Assignment, was delivered to Baron Clark, the 16 of May, at Westminster: and to that we say, That the said day was, Dies Ascentionis, & sic non juridicus, and so no Court there then holden, and then the said Deed was not delivered in Court of Record, and then not delivered unto him as a judge, but as a private person, although it was delivered to the use of the Queen: But in 37 H. 6. there is some opinion, That if such a Deed be delivered in Court to one of the Barons, or be put into the King's Coffers, that then it is a Record. Atkinson contrary, And as to the first Exception; It is to be known, That in every Plea, where a contempt is laid to the charge of the Defendant; he ought first to excuse or clear the contempt: and therefore here, the Exordium of the Plea is, Quoad venire vi & armis, & quicquid est in contemptum dominae Reginae, nec non de tota ulteriore transgressione & contemptu per ipsos fieri supposit. ipse in nullo est inde culpabilis: and afterwards plead over; and so it is in an Action of trespass: and also upon the Statute of 8 H. 6. of Forcible entry; and here the issue upon the contempt follows the other issue: for if the one issue be found against the Defendant, so also is the other. As to the other point, I grant, That a Corporation cannot take, or speak without writing: And the King being the Corporation of Corporations, and the chief of Corporations, and who makes all Corporations, cannot take without a writing of as high a nature: (scil.) Record. And we have a Record here, (as it is granted of the other side) being enrolled the 18. of May, which was delivered the 16. of May; and than pain, upon the whole matter, was the 17. of May an intruder, by relation of the Deed to the time of the first delivery; And an intruder by his entry cannot gain any thing out of the Queen; and therefore the information upon the intrusion is, diversis diebus, & vicibus intrusit: although it be but one continued possession; and therefore at every instant, during his possession, he is an intruder: As unto the delivery of the Deed of Assignment upon the day of the Ascension, which is not dies juridicus, the same is not material, as is 12 E. 4. 8. by Pigot: If the day of the return of a Writ, i. e. quarto die falls out in die Dominica, yet it is good enough, although no Court can then be holden, but the day following, and the Plea is not discontinued; And this delivery of the Deed of Assignment, might be out of Term, and therefore at any day within the Term, which is not dies juridicus, but contrary, of a thing which is necessarily to be done within the Term: as in the Case between Fish and Broket, of Proclamations made upon a Fine; for a man may acknowledge a Recognizance, or a Deed to be enrolled in the time of Vacation, etc. Tanfield: As to the interest, the inrolment hath relation, but not as to the profits; for pain cannot be an intruder, the 17 of May by any relation. Popham, the Queen's Attorney, When an information upon intrusion and taking of the profits is here exhibited, the Defendant ought to justify his entry; and if the entry be found against him, so as his entry is an intrusion, than the unlawful taking of the profits is found also; and he said, That the Deed acknowledged, and delivered to the Baron, is a Record, although it be not enroled, be the acknowledgement thereof either out of Court, or in Court: If an information upon a Penal Statute be exhibited unto a Baron of the Exchequer out of Court, and afterwards another informer exhibits another information upon the same Statute for the same offence against the same person, and that is brought into the Court before the first, the first information shall be preferred, and the Defendant shall answer to that, and not to the other, and for the exhibiting of it in Court, or out of Eourt, it is not material: And the Assignment, when it is enrolled, hath relation unto the acknowledgement of it: A Reversion is granted to one for life, the Remainder to the King, the particular Tenant Attorns, the Remainder is not in the King by the Attornment, but if the Deed be afterwards enrolled it shall be said to be in the King from the time of the Attornment, and the King shall have the benefit of the whole mean profits from the time of the Attornment: A Lease for years is made by the King reserving Rend, with clause of distress; That if the Rent be not paid, that the Lease shall be void, the Rent is not paid, ten years after an Office is found, the King shall be answered all the profits from the time of the default of payment of the Rent; and although no intrusion can be laid on the information, 17 Maii, yet it shall be for the 18 day of May. Coke, The judgement for the Queen upon an information of intrusion, Quod defend. de intrusione, transgressione, & contemptu praedict convincantur, etc. and afterwards a Commission shall issue forth, to inquire of the mean profits, and there the Defendant may show the matter for to mitigate the damages; and if the intrusion be at any time in the information, it is well enough to have judgement; and in our Case, the continuance is laid 18 Maii. Egerton, Solicitor General, The Record doth warrant the judgement given upon it; for possession laid in the Queen is sufficient to maintain this information; and here pain doth not answer to the title of the Queen, but traverseth the intrusion, and therefore being found an intruder by Verdict, judgement ought to be given upon it, for the jury have found the intrusion generally, and not specially, the 17 of May, and that cannot be assigned for Error, for it is part of the Verdict of which Error doth not lie, but attaint, for if any Error was, the same was in the jury and not in the Court; which Manwood granted: Tanfield, As unto the Case of continuance of an intrusion, it is clear, that every continuance ought to have a beginning; for a thing which hath not a beginning, cannot be continued; and here is not any beginning; for the beginning which is laid in the information, is pretended to be, 17 Maii, and that cannot be for the Cause aforesaid: Popham, If an information be brought of intrusion, as appears in many Memorandums in the Exchequer, where, in truth, there is not any Record to prove it, and the jury find the intrusion: Will you have a Writ of Error upon it? And every continuance of intrusion, is intrusion: Anderson, The same matter had been good evidence, Sed non habet locum hic. CCLVII. Beale and Langley 's Case. Trin. 29 Eliz. In the Common Pleas. Int. Hil. Rot. 1544. JOhn Beale was Plaintiff in a Replevin, against Robert Langley and Roger Hill: The Case was, That Henry, Earl of Arundel was seized of the Manor of Bury in his Demesn as of Fee, whereof the place in which, was parcel demised and demiseable, according to the custom of the said Manor by Copy in Fee, whereof Langley was a Copiholder in Fee, etc. and the said Earl so seized, enfeoffed divers persons of the said Manor unto the use of himself for life, and afterwards to the use of the Lord Lumley, and Elizabeth his wife, daughter of the said Earl, and the heirs of their two bodies begotten, who made a Lease of the said Customary lands by Indenture unto the Plaintiff for 100 years; and the question was, If by this Lease, the lands be so severed from the Manor, that the Copyhold is extinct: Walmesly took exception to the pleading; for that Langley pleads, That the custom within the Manor is, That if any Copiholder seized of Customary lands of the said Manor dieth thereof seized, having many sons, That the youngest son shall inherit; and he showeth, That the Lord of the said Manor granted to his father and his mother the said customary lands, by Copy, to have to his said father and mother, and the heirs of his father, etc. And that his father died, and that his mother survived him and died, and he as youngest son, according to the custom entered, and he said, That this custom, set forth by the Defendant, doth not maintain his entry; For the custom intendeth but a general and immediate descent upon a Copy made unto a man, and to his heirs, but such is not the descent here, for the wife surviveth; during whose life, the heir cannot enter; nor is there here such Estate in the father of the Defendant unto whom the custom set forth in the Avowry can extend: For the custom is alleged, Where a Copyholder hath a Copyhold Estate to him and his heirs. And here the Title of the Defendant is, That a customary Estate was granted to the father and the mother, and the heirs of the father, so as this Estate is not within the Letter of the custom; And to that purpose he cited the Case of Sir John Savage, Sir John Savage's Case. ante 109. late adjudged, Where one entitled himself to a Copyhold in this manner; That within the Manor, there is such a custom, that if one taketh to wife any customary Tenant of the said Manor in Fee, and hath issue by her, he, if he over-live such wife, should be Tenant by the Courtesy, and the Case in truth was. That he married a woman, who at the time of the marriage, had not any Copyhold, but afterwards, during the coverture, a Copyhold descended to her. In that Case, it was holden, That no Tenancy by the Courtesy did accrue by that custom, which did not extend, but where the wife is a Copiholder at the marriage; and a custom shall be in construction taken strictly, and shall not be extended beyond the words of it. And as to the matter in Law, he said, That by this Lease, the custom was gone, and then by consequence, the customary Tenancy, as to that land is determined; for the Estate of the Copiholder is, Secundum consuetudinem Manerii, ad voluntatem Dom. And now by the Lease, Langley cannot hold, Secundum consuetudinem Manerii; for now the services reserved upon the Copy, and the advantages of Waste, and other forfeitures, are extinct; so that if notwithstanding the Lease, the customary interest should endure, than such a Copiholder should hold this land, discharged of all services, etc. in better Estate than any Freeholder at the Common Law, and because the services in Law are discharge, and cannot be recovered, for that cause the customary interest is determined: For the Case is, 7 E. 4. 19 by Danby, That the Copiholder shall have remedy against his Lord, if he put him out, for he pays a Fine when he enters; but here, during this Lease, no Fine can be paid upon any descent, etc. and the Fine is the cause, for which the Copiholder shall maintain his possession against the Lord: But here no descent or surrender can be presented; for there is not any Tenant who can do it: See 21 E. 4. 80. by Brian, As long as the Copiholder payeth unto the Lord the customs and services, If the Lord putteth him out, he shall have an Action of Trespass: 42 E. 3. 25. If the Copiholder will not do his services, the Lord shall seize the lands: Dyer 100 1 Cro. 35. And he resembled this Case, to the case where the King grants lands, probis hominibus de D. the same is a good Grant, and that only in respect of the Rent, and for the reason of that, it is a good Corporation: But if the King releaseth the Rent, the Corporation is dissolved, and the Grant is become void: Fenner, Serjeant, contrary; and he said, That by this Lease, being the act of the Lord himself, the customary interest is not determined, etc. And the whole Court was of clear opinion with Fenner, That the Copyhold did remain, for otherwise, by such practices of the Lords, all the Copiholders in England might be defeated; and if any prejudice be grown to the Lord by this act, it is of his own doing, and against his own act he shall not be relieved: And by Periam, justice, The Lord by his act, i. e. the making of the Lease, hath destroyed his signory, and lost the services, as to this land: And Windham, justice said, That the Lord himself had destroyed the custom as to the services, but not as to the customary interest of the Tenant; but the Lord Anderson was of opinion, That the Rents and services do remain; and if the Copiholder, after such Lease committeth Waste, that it is a forfeiture to the Lord; and that will fall in evidence upon a trial, although such Waste cannot be found by an ordinary presentment: and the same Law which alloweth the Copiholder his Copyhold interest against this Lease, will allow unto the Lord his Rents and services: and he said, That the Lord shall have the Rents and services, and not the Lessee, Quod mirum, against his own Lease; See 33 Eliz. between Murrel and Smith now reported by the Lord Coke in his 4 Report. fol. 20. CCLVIII Russel and Broker 's Case. Trin. 29 Eliz. In the Common Pleas. RUssel brought Trespass against Broker, 3 Len. 218. for cutting down of four Oaks. The Defendant pleaded, That the place where, etc. and that he is seized of a Message in D. And that he, and all those whose Estate he hath, etc. Habere consuerunt rationabile estoverium suum, for fuel, ad libitum suum capiendum in boscis, subboscis, & arboribus, ibidem crescentibus: and that, in quolibet tempore anni, but in fawning time; The Plaintiff by Replication, said, That the place where, is within the Forest of, etc. and that the Defendant, and all those whose Estate, etc. Habere consueverunt rationabile estoverium suum de boscis, etc. per liberationem Forrestarii, vel ejus Deputati, prout boscus pati potest, & non ad exigentiam petentis: And upon that Replication, the Defendant did demur in Law: and the opinion of the whole Court was, That judgement should be given against the Plaintiff; for if he should oust the Defendant of his prescription by the Law of the Forest, he ought to have pleaded the Law of the Forest in such case; viz. Lex Forrestae est, etc. for the Law of the Forest is not the common Law of the Land, and we are not bound to take notice of it, but it ought to be pleaded, or otherwise the Plaintiff ought to have traversed the prescription of the Defendant, for here are two prescriptions; one pleaded by the Defendant by way of Bar, the other set forth by the Plaintiff in his Replication without any traverse of that with is alleged in the Bar, which cannot be good; but if the Plaintiff had showed in his Replication, Lex Forrestae talis est, etc. then the prescription of the Defendant had been answered without any more; for none can prescribe against a Statute. Exception was taken to the Bar, because the Defendant had justified the cutting down of Oaks, without alleging, that there was not any underwood, but the Exception was not allowed; for he hath choice, ad libitum suum. Another Exception was taken, because he hath not showed, that at the time of the cutting, it was not fawning time; Poph. 158. 2 Cro. 637, 679. for at the fawning time his prescription did not extend to it and that was holden a good material exception; but because the Plaintiff had replied; and upon this Replication, the Defendant demurred; the Court would not resort to the Bar, but gave judgement upon the Replication against the Plaintiff. CCLIX. Mich. 29 Eliz. In the Common-Pleas. A Blacksmith of South-Mims, in the County of Middlesex, took a Bond of another Blacksmith of the same Town, that he should not exercise his Trade or Art of a Blacksmith within the same Town, nor within a certain precinct of it; and upon that Obligation, the Obligee brought an Action of Debt in the Common-Pleas, depending which, the Obligor complained to the justices of Peace of the said County upon the matter against the Obligee, upon which the matter being found by examination, the justices committed the Obligee to prison; and now, upon the whole matter, Puckering, Serjeant, prayed a Habeas Corpus for the said Obligee to the Sheriff of Middlesex, and it was granted: and Fleetwood, Recorder of London, being at the Bar, the Court told him openly of this matter, That by the Laws, justices of Peace have not Conusance of such offences, nor could meddle with them; for their power is limited by their commission and the Statutes; and the Recorder did much rely upon the opinion of Hull, 2 H. 5. 5. But by the clear opinion of the whole Court, although this Court, being a high Court, Owen 143. 2 Cro. 596. might punish such offences appearing before them on Record, yet it did not follow. That the justices of Peace might so do: But as to the Bond, the Court was clear of opinion, that it was void because it was against Law. Ante 34. CCLX. Trin. 29 Eliz. In the Common Pleas. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the Plea was determined before the under-sheriff in the absence of the Sheriff, and it was now moved by Puckering, Serjeant, If a Writ of Error, or a Writ of false judgement did lie in that Case: And first, the opinion of the justices was, That the Sheriff himself in his person ought to hold Plea of a Justicies; and if he maketh a Precept or Deputation to another, the same is merely void: 34 H. 6. 48. And see the said Case abridged; Fitz. Bar. 161. and it was said, That a Justicies is not an Original Writ, but a Commission to the Sheriff, to hold Plea, ultra 40 s. and upon a judgement given upon a Justicies, a Writ of false judgement lieth, and not a Writ of Error: See for that, 7 E. 4. 23. And it was the opinion of Anderson, chief justice, That such judgement is utterly void, and Coram non Judice. CCLXI. Trin. 29 Eliz. In the Common-Pleas. NOTE, by Anderson, chief justice, That if Cestuy que use, 3 Len. 196. 4 Inst. 85. Kel. 41. after the Statute of 1 R. 3. leaseth for years, and afterwards the Feoffees release unto the Lessee and his heirs, having notice of the Use, that this release is unto the first Use: But where the Feffees are disseised, and they release unto the Disseisor, although they have notice of the Use, the same is to the use of the Disseisor, and that was the Case of the Lord Compton; and that no Subpoena lieth against such a Disseisor: See 11 E. 4. 8. CCLXII. Hamper 's Case. Hill. 31 Eliz. In the King's-Bench. HAmper was indicted upon the Statute of 5 Eliz. of Perjury, 1 Cr. 147. 3 Len. 230. and in the body of the Indictment, The Record was, That he, Falsa deceptive deposuit; whereas the Statute is, Wilfully; and although in the perclose of the Indictment, the conclusion is, Et sic commisit voluntarium perjurium: Yet the opinion of the Court was, that the same doth not help the matter; and for that cause, the party was discharged: For, contra formam Statuti, will not help the matter, nor supply it; and yet it was moved and urged, That contra formam Statuti would help it; and it was holden in this Case, That if a witness doth depose falsely, but the jury doth not give credit to it, nor give their Verdict against his oath, although the party grieved cannot sue him: yet he may be punished at the King's suit. CCLXIII. Moulton 's Case. Hill. 31 Eliz. In the King's-Bench. IT was moved by Coke, That one Robert Moulton, Tenant in tail, 1 Cro. 151. having issue two sons, Robert and John, died seized, and that Robert his son and heir, levied a Fine thereof, and afterwards levied another Fine, and died without issue; and John brought two several Writs of Error to reverse both the Fines; and the Tenant, to the Writ of Error, brought upon the first Fine, pleaded the second Fine in Bar of it; and in Bar upon a Writ of Error brought upon the second Fine, he pleaded the first Fine; and the Court advised him to plead, That the Fine pleaded in Bar was erroneous: 7 H. 4. 107. where a man is to annul an Outlawry, his person shall not be disabled by any other Outlawry. CCLXIV. Broccus 's Case. Trin. 30 Eliz. In the Common-Pleas. BRoccus, Lord of a Manor, covenanted with his Copiholder, 1 Roll. 15. Pordage versus Cole, 20 Car. 2. B. R. to assure to him and his heirs, the Freehold and Inheritance of the Copyhold, and the Copiholder in consideration of the same performed, did covenant to pay such a sum. And it was the opinion of the whole Court, That the Copiholder is not tied to pay the money before the Assurance made, and the Covenant performed: But if the words had been in consideration of the said Covenant to be performed, than he had been bound to pay the money presently, and he should have his remedy by Covenant. CCLXU. Foster 's Case. Trin. 30 Eliz. In the King's-Bench. NOTE, It was said, and holden by the whole Court in this Case, That in Debt brought against Executors, If the Defendants plead, That the Testator was bound in a Recognizance, in such a sum, beyond which they have not any thing in their hands; That it is a good Replication to say, That the Recognizance was entered into for performance of Covenants contained in certain Indentures, of which Covenants none are yet broken. CCLXVI Partridge 's Case. Trin. 30 Eliz. In the King's-Bench. A Quo Warranto was brought against Partridge, in which Case, It was holden by all the justices, That a man may prescribe to hold a Leet oftener than twice in one year, and at other days than are set in the Statute of Magna Charta, cap. 35. because the said Statute is in the Affirmative; But Popham said, That one cannot prescribe against a Statute, See for the same, Book of Entries, 13 E. 3. Leet 12. and he said, That the want of a Tunbrel and Pillory, is a good cause of forfeiture of the Liberty: which Coke denied. And it was farther moved by Popham, That if a general pardon be granted with general exceptions in it, he that will take advantage of the same, aught to plead it, and show that he is not any person excepted; for otherwise the judges cannot allow him the benefit of it, because they do not know if he be a person excepted or not; But if there were special persons excepted by name, and none other excepted, but only those persons, there the party needs not to plead it, for the Court may discern J. B. from J. D. See 8 E. 3. 7. and 26 H. 8. 7. If a man commits Felony, and also Treason, and afterwards comes a general pardon for the Felony, but Treason is excepted, and the party is arraigned of Felony: by Coke, he shall have the benefit of the pardon; but Popham contrary, for he is disabled by the Treason. And it was agreed by the whole Court, That in a Quo Warranto, It is not sufficient for the Defendant to say, That such a Subject hath lawful interest to hold a Leet, without making Title to himself; for the Writ is, Quo Warranto he claims, etc. And afterwards judgement was given for the Queen. CCLXVII. Wiggen and Arscot 's Case. Trin. 30 Eliz. In the King's-Bench. IN a Prohibition, the surmise was, That the Exposition of Statutes doth belong unto the Queen's temporal Courts; and Arscot had sued in the spiritual Court for Tithes, whereas in truth, for not reading of the Articles according to the Statute of 13 Eliz. he was deprived, ipso facto, and so he was not Parson: for which cause, Gawdy prayed a Prohibition; for he said, that the surmise was good and sufficient: For the Question is, Parson, or not Parson? and that shall be tried here by the Common Law. And I do not know that it hath ever been ruled here to the contrary before. Clench, justice, It hath not been ruled to the contrary; yet because great inconvenience may arise upon the admitting of it, The Court hath taken order, That no Prohibition shall be granted upon such a surmise, without great probability of the truth of the surmise: Where a Prohibition is awarded upon such a surmise, the party needs not to prove his surmise according to the Statute of 2 E. 6. cap. 13. for this surmise is conceived upon a cause of later time, since the said Statute, and was not any cause to have a Prohibition at the time of the said Statute. CCLXVIII. Winter and Loveday 's Case. Trin. 31 Eliz. In the King's-Bench. Rot. 759. IN an Action of Covenant by Winter against Loveday; It was found by special Verdict, That Winter, by Deed indented Mortgaged to Loveday, a certain Lease upon condition to pay 400 l. to Loveday at a day certain, at the porch of such a Church; and upon such payment, Winter to have back his Lease; and Loveday covenanted, That upon repayment of the money he should have back all his Evidences concerning the same: and it was farther found, That at the day of payment one Cornwallies sent unto Loveday to know if Loveday would receive the money which Winter owed to him, at his house, who answered that he was content, and he came there, and the money was told and delivered in bags to Loveday; but afterwards some contention did arise between Winter and Loveday for certain Writings; for which cause Cornwallies said, That if they would not agree betwixt them, That they should not have his money. Whereupon Winter requested Cornwallis, that he might have the money to carry to the said porch of the said Parish Church, who was contented, and there Loveday came to receive it, and Winter would not pay it. Tanfield moved, That the same was a good payment to discharge the Mortgage; for the money was told in the house of Cornwallis, and Loveday there put it up into bags; and the same is a good payment and receipt: Coke contrary, Here is not any payment, for it was not the money of Winter, but of Cornwallis, as appeareth by the words of Cornwallis; (scil.) If they could not agree they should not have his money: Also Winter requested Cornwallis, that he might have the money to carry to the porch of the Parish Church aforesaid, by which it appeareth, that it was not Winter's money. And for that cause, it was also the opinion of the Court, that the same was not any sufficient tender. See for this, 1 Len. 34, 35. the Case of Watkins and Astwick, Hil. 28 Eliz. CCLXIX. Ordway and Parrot 's Case. Trin. 30 Eliz. In the King's-Bench. ORdway brought a Scire facias against Parrot and Hallsey, who were Bail in a Bill of Debt, for one Bennet; and they pleaded, That the said Bennet had paid the money recovered, to the Plaintiff, according to the condition of the Recognizance; and it was the opinion of the whole Court, that it was no Plea without alleging payment upon Record; for if this should be suffered, every man should be enforced twice to try his Action; wherefore the Plea was disallowed. CCLXX. Coniers and Holland 's Case. Trin. 30 Eliz. In the King's-Bench. 3 Cro. 279. 2 Cro. 483. & 620. IN an Action upon the Case upon Assumpsit, by Coniers against Holland, The Defendant pleaded, That after the promise, that the Plaintiff had discharged him of it: And by Wray, chief justice, It is a good Plea, and so it hath been often ruled, and it was late the Case of the Lord chief Baron, against whom in such an Action, such a Plea was pleaded, and he moved us to declare our opinions in Serjeant's-Inn: and there, by the greater opinion, it was holden to be a good Plea; for which cause, The Court said to Buckley, who moved the Case, That the Plea is good, and judgement was entered accordingly. CCLXXI Richmond and Butcher 's Case. Mich. 33 Eliz. In the Common-Pleas. 1 Cro. 217. IN a Replevin, the Case was this; A man made a Lease for years, reserving Rend to the Lessor, his Executors and Assigns, where the Lessor had a Fee-simple in the Lands; it was holden by the Court, That the Rent should go to the heir, notwithstanding the special Reservation, because the words of the Reservation are, During the term, and the other words, To his Executors and Assigns, shall be void, and then the Rent shall go with the Reversion to the heir, which see, 27 H. 8. 19 by Awdley: And it was said by some, That a Rent reserved during the term shall go to the heir with the Reversion: and 12 E. 4. was cited, where a Rent reserved to the Lessor and his Assigns, should not go to the heir; and that these words, During the term, did not mend the matter; for the Lessor might well overlive the term. But in the principal Case, it was said by Periam, justice, That the Executors should not have the Rent, for they have not the Reversion; but if the Lessor grants over the reversion, the Grantee shall have the Rent. And afterwards judgement was given against the Plaintiff; for it was in a Replevin, and judgement was given for the Avowant, who was heir to the Lessor. CCLXXII. Mich. 30 Eliz. In the Common-Pleas. IN an Action of Trespass brought by a poor woman for breaking of her Close; she declared of a Continuando of the Trespass, by six years and upon Nihil dicit pleaded, she had judgement to recover; upon which issued forth a Writ of Enquiry of Damages; and now came the poor woman, and shown to the Court, That the jury had found too little damages, i. e. but 10 s. whereas the Land is worth 4 l. per ann. and the Trespass had continued by six years together, and prayed that the said Writ might not be received, and that the Court would grant her another Writ to have a Melius inquirendum of the damages, but the whole Court denied to grant any such Writ, for so there might be infinite inquiries: But sometimes, at the prayer of the Defendant, when excessive damages are found, or any misdemeanours alleged in the Plaintiff, procuring or using such a Writ of Enquiry of damages, we use to relieve the Defendant, by granting and issuing forth of a new Writ, but to the Plaintiff never, because the suing forth of the Writ is his own act: And by Rhodes, justice, The late Countess of Derby brought a Writ of Dower, and had judgement to recover; and she surmised that her husband died seized, and prayed a Writ of Enquiry of damages, and had it granted unto her; and because too small damages were found, she would have suppressed the said Writ, and procured a new Writ, but she could not obtain it; and at last she was driven to bring in the first Writ, and so it was done. CCLXXIII. Scrog 's and Griffin 's Case. Hill. 30 Eliz. In the King's Bench. IN an Action upon the Case, upon a promise by Scrogs, against Griffin; The Plaintiff declared, That whereas such a day, one Brown and another, did run for a wager, from Saint-John-Street, to Highgate, That he of the said two, that first got thither, and came again, should have 5 l. which wager, the said Brown did win; and whereas after the said match so performed, the said Plaintiff affirmed, that there was deceit and covin in the performance of the said match, upon which the Defendant, in consideration of twelve pence, to him delivered by the Plaintiff, promised, that if the Plaintiff can prove, that any deceit or covin was used, or practised in the performance of the said match, that then upon request, he should pay to the Plaintiff 5 l. And upon Non Assumpsit pleaded, it was found for the Plaintiff, and it was moved by Foster, in arrest of judgement, That here is not any request set forth in the Declaration: and also, that this deceit is enquired of in London, whereas it ought to be in Middlesex where the Race was run: and it was agreed by all the justices, That the proof ought to be made in this Action, as in the common Cases of voyages: and that request now is but matter of conformity, and not of necessity. Wray, justice, It is clear, That always proof ought to be as it is here; if not, that the matter be referred to a special proof, before a person certain. And as to the trial, The deceit is not in issue, but only the promise; and therefore the issue is well tried in London: Also this Action here includes proof and request: for there cannot be made any other proof, and the proof is the effect; for which cause he concluded, that judgement should be entered for the Plaintiff, which was done accordingly. CCLXXIV. Fuller and Trimwell 's Case. Pasch. 29 Eliz. In the Common Pleas. IN a Replevin by Fuller, against Trimwell, who made Conusance, 1 Roll 46. ●… as Bailiff to one house for damage fesance, The Plaintiff in Bar of the Conusance shown, That one A. T. did pretend right to the land where, etc. and the Defendant, in the right of the said A. T. took the , etc. Absque hoc, that he took them as Bailiff to the said House, upon which the Defendant did demur in Law; and it was argued by Shuttleworth, Serjeant, That the traverse is not good, which see, 26 H. 8. 8. 5 H. 7. 2. Not his Bailiff; but if the truth of the Case be so, he may plead of his own wrong, without such cause, etc. And see also, 28 H. 6. 4. The Commandment is not traverseable, but in special Cases, where the Commandment determines the interest of the other party, which see, 13 H. 7. 12, 13. Antea 196. in the Case of the Earl of Suffolk in Trespass, the Defendant pleaded. That before the trespass, the Plaintiff was seized, and thereof enfeoffed one B. by whose commandment he entered, to which the Plaintiff said, That after the Feoffment, and before the trespass, the said B. leased to the Plaintiff, to hold at will, Absque hoc, that the said B. did command him; and that was holden a good traverse; for the commandment determines that Lease at will; and in the principal Case, all the justices were of clear opinion, That the traverse is good; and they all said, That the Custos Brevium had showed to them many precedents thereof, See 15 H. 7. 17. and see also, 7 H. 4. 101, 102. In trespass for taking of , the Defendant did justify as servant to such a one for Rent arrere, due to his Master; The Plaintiff, Replicando said, That the Defendant was not Bailiff at the time of the taking, where it is said by Gascoigne, That if the Defendant takes the , claiming property, as a Heriot due to himself, although that afterwards the Lord agrees to the distress, as taken for Rent arrere; yet he cannot be said his Bailiff at the time of the distress, which was granted by Rhodes, Periam and Windham: and as to that which hath been objected, That if this traverse be allowed, the meaning of the party shall be drawn in question; i. e. the meaning of him who took the , the same is not any mischief, for so it is in other cases; as in the case of Recaption, See 9 H. 6. 1. 45 E. 3, 4. CCLXXV. Humphreston 's Case. Pasch. 16 Eliz. In the King's Bench. More 103. 1 Anders. 40. Dyer 337. Owen 64. Sty. 293. IN an Ejectione firmae, It was found by special Verdict, That W. Humphreston seized of the Manor of Humphreston, suffered a common Recovery to be had thereof by Kinnersley and Fowk in the Writ of Entry in the Post, to the intent that they should make an Estate to the said W. Humphreston, and Elionar his wife for their lives, the remainder, Seniori puero dicti W. and to the heirs of the body dicti senioris pueri legitime procreate. the remainder to the heirs of the body of the said W. Humphreston, with divers remainders over. And afterwards the Recoverers, in December following, by Indenture made an Estate accordingly, and made Livery to W. Humphreston and his wife; and afterwards, in November, 2 E. 6. by Indenture between the said W. Humphreston of the one party, and Kinnersley on the other part, The said W. Humphreston did covenant with the said Kinnersley, to do all such lawful and reasonable things for to assure the said lands unto the use of the said W. Humphreston and Elionar his wife for their lives, and afterwards, to the use of the eldest child of the body of the said W. Humphreston lawfully begotten, and to the heirs of the body of the said eldest child of the body of the said W. Humphreston; and after to divers other uses over; and afterwards, Ter. Pasch. 2 E. 6. W. Humphreston and Elionar his wife, levied a Fine of the said land to C. and B. in Fee, to the use of the said Indenture; Elionar died, W. Humphreston married another wife, and had issue a daughter, named Frances, and afterwards had issue a son, named William, and died. William the son, being of the age of six years, entered into the lands, and leased the same to the Plaintiff for years, who being ejected by the Defendant, brought the Ejectione firmae: And this special Verdict. And the points moved upon it were argued by Atkins, Phetiplace, Fenner, Fleetwood, Plowden and Bromley, and afterwards this Case was argued by the justices: And Gawdy, puisne justice conceived, That judgement ought to be given for the Plaintiff: First, he conceived, that this Lease for years made by the Infant, without Deed and without Rent reserved is not void; so as every stranger shall take advantage of it, but only voidable; for an Infant may make a Bond, and a Contract for his commodity and profit, and the same shall bind him; as for his meat and drink, apparel, etc. But if upon such Lease he had reserved a small Rent, as one penny, where the land was worth 100 l. per ann. such a Lease had been void; and in our Case, this Lease was made upon the land, and was made for to try the title to it, which is a good consideration, and to the profit of the Infant, and for his advancement, and then the Lease is not void. It hath been objected, That here the Recovery being suffered to the intent that the Recoverers should make an Estate, ut supra, etc. that the use shall rise presently upon the Recovery to him who suffered the Recovery, and then the Recoverers could not make Livery unto him; he held strongly, That the use and the possession should be adjudged in the Recoverers, until they made the Estates, etc. for they otherwise could not make the Estates, etc. 2 Roll 789. and these words [To the intent] shallbe construed, that they shall have the lands, until they made the Estates, etc. And he held, that the remainder limited, Seniori puero, where there is not any, in rerum natura, is good enough: as a remainder limited to him who shall first come to Paul's. And he conceived, that the son should take this remainder, and not the daughter: and he conceived, that the Estate tail here, was not executed, i. e. the second entail; Divers Authors of Grammar, have been produced to prove, that Puer, may be taken both ways, Tam puer, quam puella, Desporterius, Calapine, Melancthon, and the Grammar allowed, but I conceive, that Puer is a word proper for a Boy, and Puella for a Maid; and where we have proper words, we ought not to judge but according to them; and because the word is doubtful, we ought to consider the cause upon the circumstances, and therefore it is to be intended, that W. Humphreston had a greater desire that his son should have his Inheritance, than his daughter, if there be not some special matter to prove that the intent of the father was for his daughter. Southcote, justice, agreed with Gawdy in the first point; and also that the Recoverers have convenient time to make the Estates; and that they are to make the same without request for the benefit of the wife, who is a stranger to it, and is to have the lands for her jointure; and he cited the Case of the Abbot of York, 44 E. 3. 8. and 9 where the difference is taken between a Feoffment made upon condition to re-enfeoff the Feoffor, or to enfeoff a stranger: And here in our Case the Feoffment is made in convenient time, and here is sufficient consideration, That the Recoverers shall be seized to their own uses, until, etc. And these words, Roll supra Roll 407. [Ea intention] shall be taken for a Condition: And also that this remainder limited, Seniori puero, is good notwithstanding that there be not any Senior puer alive at the time. And as to the word (puer) he held, that it did extend to both Sexes indifferently; and because it is doubtful what Sex the father intended, we are to construe the same upon the circumstances, which appear upon the parts of the Indentures: and here it appeareth upon the Indenture, that he hath explained his mind, (scil.) Eldest child, be it Male or Female: As if I have two sons, named J. and I devise my lands, or limit a remainder to J. my son, the Law shall construe this Devise to extend to my younger son; for without devise or limitation my eldest son should have it. But if J. S. hath two sons, known by the names of A. and I Devise lands to A. son of J.S. there I ought to explain my meaning openly: And he conceived, That the Estate tail is executed defeasiable in W. Humphreston, upon issue afterwards had; and that the daughter should have the lands, and not the son; and if the Fine destroy the remainder in abeyance limited to the eldest child, than the said eldest child shall have it, de novo, by the later conveyance. And as to the Warranty of the Fine, because the possession of the Conusees is removed by the Statute of 27 H. 8. to the daughter, she shall not have the benefit of the Warranty as to vouch, but she shall Rebutt: as 22 Ass. 37. 69. Where a Feoffment in Fee is made to my Villain with Warranty and before that the Feoffor dieth, I enter upon my Villain, so as the Warranty upon the death of the Warrantor is not attached upon the possession of my Villain, I shall not have advantage of that Warranty: A Disseisor makes a Feoffment in Fee upon Condition, the Disseisee releaseth the Feoffee with Warranty, the Disseisor entereth for the condition broken; now the Disseisor shall Rebutt by that Warranty, but not vouch. And here in our Case, the Fine is a discontinuance, so as the son is put to his Action, if he had right, and then the Warranty shall bind him; but contrary, if his entry be lawful. And as to the Lease made by the Infant, he conceived, that it being made without Rent, it was merely void, for it was without consideration. Wray, chief justice, As to the first point, he was of opinion, That the Recoverers shall be seized to their own use, until they make the Estate for that was the use implied, for all uses are directed and ruled by the intent implied or expressed of him, to whom the land is; and his intent was, that such Estates should be made, and to such purpose the Recovery was suffered: As if I enfeoff A. unto the use of B. for his life, there it is implied, That B. shall be seized of the Fee to my use, I covenant, That J. S. shall take the profits of my lands for his life, this is a good use of the lands for his life; and he held, that the Recoverors should be seized to their own use, until, etc. And the Recoverers ought to make the Estates within convenient time, or otherwise the use should be revested again in him who suffered the Recovery; and here the Estate was made within convenient time: And he said, That in every Case where a remainder is limited in abeyance to one by a proper name, the same is not good, but by a general name it is good enough if the party be in esse when the remainder falls: as a remainder limited upon an Estate for life unto the first son, or daughter of J. S. where J. S. at the time hath not any son or daughter, the same is good, if such person shall be in esse, at the time of the death of the Tenant for life, 17 E. 3. A remainder limited Filio primo genito, etc. and 3 E. 3. Fitz. Tail. 8. Land given to J. S. Et uxori quam primo matrimonio duxerit in uxorem, and afterwards he taketh a wife, she shall take by the same Conveyance. And as to the Warranty, This Fine with Warranty was levied to C. and B. unto the use of himself for life, the remainder to the use of the eldest child, etc. and he intended, That the daughter should not have the benefit of this Warranty; for by the Statute, the possession is removed, and transferred in the Post before the Warranty could attach; and therefore the same shall not bind the son, neither by Voucher, nor by Rebutter: But Tenant by the Courtesy shall have benefit of the Warranty; for although he be in the Post, yet he continueth the Estate which was made to the wife. And as to the point in question, we ought to consider, that the Statute of 27 H. 8. of Uses is, That Cestuy que use shall have the lands in such plight as he had the use, which was without Warranty; and therefore it shall be transferred into possession without Warranty: As to the Lease made by the Infant without rent, profit, or other recompense, he conceived the same to be utterly void; as if he grant a Rent, or an Advowson, he may say, that he did not grant, etc. for the thing included in the Deed, doth not pass, although he delivereth the Deed of Grant, with his own hand: Two joint-tenants within age, one makes a Lease of years, and dieth, the other shall avoid it; for the Lease is utterly void, of which every stranger may take advantage; but of acts voidable, it is otherwise: As two Infants joint-tenants, the one Leaseth for life, and makes Livery in person, and dieth, the other shall not avoid it: Two joint-tenants, the one maketh a Feoffment upon condition, and dieth, the other shall not take benefit of the condition: But here the Lease is merely void, of which every stranger shall take advantage, and therefore upon this point the Plaintiff shall be barred. And also he was of opinion, That this remainder in abeyance limited, Seniori puero, was not destroyed by the Fine, for it is in the consideration of the Law, and so preserved by the Law; and therefore a descent in the time of vacation of an Abbot, shall not bind the successor; and so where the party is beyond the seas; for such persons and their estates, the Law privilegeth and preserveth: So a remainder limited to the right heirs of J. S. And where the King seizeth by reason of a Ward, and during such seisin of the King, a descent is cast, the same shall not bind him who hath right; for he could not enter upon the possession of the King: and by the Statute of 32 H. 8. A Recovery had against Tenant for life, the remainder unto the right heirs of J. S. who is alive at the time of the Recovery, is not helped by the Statute of 32 H. 8. For the words of the Statute are, To whom the reversion or remainder shall then appertain: See 11 R. 2. Fitz. Detin. 46. and so he concluded, because that this remainder is in the custody of the Law, and not in esse, it is privileged and preserved and not destroyed by the Fine; and upon issue had, the remainder shall be executed, notwithstanding the said act done by the father; and without any entry to be made by the Conusees to raise the use, for the remainder limited, Seniori puero, neither was, nor could be discontinued: As to the principal point of the Case, viz. How these words, Seniori puero, shall be expounded, although divers authorities have been cited out of Latin Authors, That this word (puer) shall be taken for the Male or Female; yet I conceive, That more commonly, it shall be taken for the Male than for the Female, and we ought to judge according to the intent of the parties, and not according to the strict signification of the word in Latin, especially where it is doubtful how it shall be expounded: 9 H. 7. 16. A. was bound in a Bond upon condition to pay, decem libras auri puri; although there be not any such phrase in Latin, yet because it appeareth so to be the meaning of the Obligee to have fine gold, it was so taken: 39 H. 6. 10. and 11. The word (uterque) id est, quilibet pro parte sua, See the Book: so it was lately adjudged in the Court of Common-Pleas, where three were bounden, Et eorum uterque, which was construed to be, Quilibet, for we ought always in construction of Deeds, to have regard to the meaning of the parties, and not to argue the aptness of the Latin word. And I conceive, That if a Lease be made for life, the remainder puero of J. S. who hath a son and a daughter, the son shall have the land, etc. for the most worthy shall be preferred; and therefore, if a Freeman marrieth a Neife, she is enfranchised for ever, according to the opinion of Fitzherbert, which I hold to be good Law, for the husband is the more worthy: So if the Lease for life be made 〈◊〉 J. S. the remainder to the right heirs of A. B. who hath issue three daughters, and dieth, the eldest shall have the remainder, and not the other with her, because she is the more worthy; and so a remainder upon an Estate for life of lands in Gavelkind limited to the right heirs of J. S. who hath issue two sons, the eldest shall have it: So here in the principal Case, (Puer) shall be expounded son, because he is the more worthy: But here are other circumstances, which give occasion of another construction; for this doubtful word (Puer) is explained by the English Indenture, which the father, W. Humphreston, caused to be made; [Unto the use of the eldest Child] which is a good exposition of the former Conveyance: and I am of opinion, that the same aught to be meant of the daughter, for so soon as she is born, the remainder vests in her, and by the birth of the son after shall not be devested: Land is leased to A. for life, the remainder to T. son of A. who hath two sons of the same name, the eldest shall have it, because the more worthy; but, if afterwards the Donor declares his meaning to the contrary, the same shall stand, etc. And afterwards judgement was given against the Plaintiff, and that the daughter should have the Lands. CCLXXVI. Pasch. 16 Eliz. In the King's-Bench. Poph. 182. Hugh's Abr. Tit. Devise. 657. Case 5. Savile 72, 73. Dy. 371. b. Shep. Touch. 449. 15 H. 7. 12. Ante 43. Perk. 547. A Man devised his Lands to his Wife for life, and because he was in doubt whether he should have issue or no, he farther willed by his Will, That if he should not have any issue by his Wife, that then after the death of his Wife, the lands should be sold, and the money thereof coming, distributed to three of his blood, and made his Wife and another his Executors, and died; The Executors proved the Will, The other Executor died, and the Wife sold the lands; and it was the opinion of Wray and Southcote, justices, That the sale was good, although it be not expressed in the Will, by whom the Lands should be sold; for the moneys coming of the sale, are to be distributed by his Executors, to persons certain, as Legacies, and it appertains to Executors to pay the Legacies, and therefore they shall sell, etc. As if a man willeth, That his lands shall be sold, and that the moneys coming thereof, shall be disposed of for the payment of his debts; now the Executors shall sell the Lands, for to them it belongs to pay debts: Also they held, 3 Cro. 278. 3. More 341. 1 Inst. 113. a. 1 And. 145. that the Lands should be sold in the life of the Wife, otherwise it could never be sold; and also the surviving Executor shall sell the lands, because the authority doth survive. CCLXXVII. Pasch. 16 Eliz. In the King's-Bench. THree men were bounden by Recognizance, jointly and severally, against all which the Conusee sued forth Execution by Scire facias; and upon issue joined, it was found for the Plaintiff in the King's-Bench, and Execution awarded by Capias ad Satisfaciend. And because the same erronicè emanavit, being upon a Recognizance, it was drawn off the File; and now the Conusee brought an Action of debt upon the judgement against one of them, and the opinion of the whole Court was, that it would not lie, because the judgement was joint against them all three. CCLXXVIII. Pasch. 16 Eliz. In the King's-Bench. A. Brought an Action upon the Case, and declared, That the Dean and Chapter of Westminster, did lease unto him a house for years by Deed indented, of which Indenture he was possessed, and afterwards lost it, and by Trover it came to the hands of the Defendant, who sold it, and converted the money thereof coming to his own use; The Defendant pleaded, Not guilty; and the Plaintiff gave in evidence, That the said Lease was made to him, and to one B. and that the said Indenture was delivered to the said B. (And that was agreed to be the possession of them both) and afterwards B. died, and afterwards A. the Plaintiff, was the sole owner of it: and that was holdden to be good Evidence on the part of the Plaintiff; and if the Plaintiff can prove the other part of his Declaration; i. e. that the Indenture came unto the hands of the Defendant, and that he sold it, that then he should recover. But it was given in Evidence on the Defendants parts, that the said B. sold to the said Defendant his part and interest in the said Lease, and also the said indenture; so as now he is become Tenant in common with the Plaintiff, and then his sale doth not give any cause of Action to the Plaintiff and that was holden by the whole Court to be good evidence without pleading of it; The Case went farther; That A. being within age, his father leased the lands for 20 years, and afterwards the son at his full age upon the back of the Indenture did release to the Defendant all his right; and it was holden by Wray, justice, That when the father leased, he did it as Guardian to his son; and it was not any Ejectment of the son, but it was a Lease in the behalf of the son, although the son might avoid it, and then when the endorsment is ut supra, the same is a good assignment; and afterwards the Plaintiff was Nonsuit. CCLXXIX. Pasch. 16 Eliz. In the King's-Bench. IN an Action upon the Case, the Plaintiff declared, That B. by his Will did devise to each of his daughters, he having two daughters, 200 l. and that the survivor should have the whole; and shown farther, that one of his two daughters died, and that B. made his Wife his Executrix, and that the said wife took to husband the Defendant; and farther declared, That the Defendant in consideration of all that, and that the Defendant should take the surviving daughter to wife, and in consideration that the Defendant had Assets to pay all Debts and Legacies, etc. did promise to pay to the Plaintiff 400 l. at four several days: The first day of payment incurred, and no money was paid, whereupon the Plaintiff brought the Action; the Defendant pleaded, That he made no such promise; and it was found for the Plaintiff, and damages were assessed for the default of payment at the first day; and that was moved in arrest of judgement, because the Assumpsit was entire, and the Plaintiff ought to have forborn his suit until all the days of payment were passed, and then to have one entire Action for the whole; but the opinion of the whole Court was against that; for they said, It is not like unto a Debt upon a Contract, or a Bill, where the debt is to be paid at several days; for here no debt is to be recovered but only damages for the debt; and this default of payment is a wrong, and therefore the Action will well lie, and so it was adjudged. CCLXXX. Pasch. 16 Eliz. In the King's-Bench. A. Devised, that his lands should descend to his son, but he willed, 1 Cro. 252. Hob. 285. Dyer. 251. a. Dy. 210. a. 3 Len. 9 79. Yel. en Ayleff & Choppins Case. Vaugh. 184. That his wife should take the profits thereof until the full age of his son, for his education and bringing up, and died; the wife married another husband, and died before the full age of the son; and it was the opinion of Wray and Southcote, justices, That the second husband should not have the profits of the lands until the full age of the son; for nothing is devised to the wife but a confidence, and she is as Guardian, or Bailiff for to help the Infant, which by her death is determined; and the same confidence cannot be transferred to the husband; but contrary, if he had devised the profits of the land unto his wife until the age of the Infant to bring him up and educate him, for that is a Devise of the land itself. CCLXXXI. Bawell and Lucas 's Case. Pasch. 16 Eliz. In the Common-Pleas. IN a Replevin by Bawell against Lucas; It was agreed by all the justices, viz. Mounson, Manwood, Harper and Dyer, That if a man seized of a Manor, leased part of the Demeans for years, or for life, That the reversion doth remain parcel of the Manor, but such a Reversion by the Grant of the Manor, doth not pass without Attornment of the Lessee: And where a Manor is granted by Feoffment unto another, and afterwards the Tenants attorn, the services pass by the Livery and not by any Grant; and although in the first Grant the Lessee doth not attorn, but a long time after, yet the Reversion is not severed from the Manor; for the Attornment, as to that intent, shall have relation to the Livery to make the Reversion to pass from the time of the Grant, but not to charge the Lessee with Waste: and Dyer said, That if a Feoffment in Fee be made of a Manor, with an Advowson appendent, and the Tenants do not attorn, yet the Feoffee shall have the Advowson; for the Advowson is appendent to the principal part of the Manor, (scil.) the Demeans, and cannot be appendent to the services: and Dyer said, That if A. maketh a Feoffment in Fee of a Manor, part of which is in Lease for years, Habendum to the Feoffee and his heirs, to the use of the Feoffee and his heirs upon condition that the Feoffee shall pay to the Feoffor within ten days, 1000 l. and if he fail, then to the use of the Feoffor for life, the remainder to the use of his son in tail, and the money is not paid, the Lessee attorns after the ten days to the Feoffee, 2 Leon. 265, 266. the same is a good Attornment to raise secondary uses, although that the first uses did not take effect; for the condition is not annexed to the Estate of the Land but unto the use only: and the meaning was, that the Feoffor should never have again the Inheritance: A Feoffment is upon condition, that the Feoffee shall give the Land in tail to a stranger, who refuseth the gift, there the Feoffor may re-enter; but a Feoffment upon condition to enfeoff a stranger, or to grant a Rent-charge, if the stranger refuseth, there the Feoffor shall not re-enter, for his intent was not, that the Land should revert, etc. CCLXXXII. Vavasor 's Case. Hill. 16 Eliz. In the Common-Pleas. THE Case was, That Nicholas Ellis seized of the Manor of Woodhall, leased the same to William Vavasor and his wife, for the life of the wife, the remainder to the right heirs of the husband: The husband made a Feoffment in Fee to the use of himself and his wife for their lives, the remainder to his right heirs, the husband died, the wife held in, and committed waste in a Park, parcel of the Manor; It was moved, If the Writ of Waste shall suppose that the wife holdeth in, Ex dimissione Nichol. Ellis, or Ex dimissione viri: and the opinion of all the justices was, That the Writ upon this matter ought to be general; viz. That she holds in, de haereditate, J. S. haeredis, etc. without saying, ex dimissione hujus, vel illius, for she is not in by the Lessor, nor by the Feoffees, but by the Statute of Uses; and therefore the Writ shall be, Ex haereditate, etc. And also the opinion of the justices was, That the wife in this case, is not remitted, but that she is in according to the form of the Feoffment: Dyer, The Formedon brought against Manures, rehearsed in the Writ, a Will and divers Conveyances, by reason of which, the Writ was of exceeding length; and in such cases the Writ is good; yet if the Writ be general, it is sufficient. Note in this Case, That the Plaintiff assigned the waste in destroying of Dear in the Park: And Mead, Serjeant, said, That waste cannot be assigned in the Deer, unless the Defendant hath destroyed all the Deer, and of that opinion was Dyer: Manwood, If the Lessee of a Pigeon-house destroy all the old Pigeons but one or two couple, the same is waste; and if the Keeper doth destroy all the Deer, so as the ground is become not Parkable, the same is waste, although he hath not destroyed the whole: See 8 R. 2. Fitz. Wast. 97. If there be a sufficient store left in a Park; Pond, etc. it is well enough, etc. CCLXXXIII. Mutton 's Case. Hill. 16 Eliz. In the Common Pleas. JAne Mutton brought a Writ of Entry, Sur disseisin, 1 Anders. 42. More 96. against Anne Mutton who pleaded, That one John Mutton was seized, and levied a Fine to the use of himself, and such wife and wives as the said John should after marry, by what name or names they should be called, for term of their lives, and afterwards to the use of the same Jane, now Demandant in tail, the remainder over to the right heirs of the said John Mutton, and afterwards the said John Mutton took to wife, the now Tenant, upon which Bar the Demandant did demur in Law. And it was argued by Jeofries, Serjeant, 13 Co. 48, 49 & 54, 55, 56. 1 Co. 101. 3 Len. 253. That here the wife taketh nothing by this limitation, because she was not capable thereof at the time of the limitation; But if the use had been limited especially to John Mutton, until he took a wife, and then unto the use of him and his wife for their lives, the same had been a good use to the wife; But in our Case, the use is limited to the wife in praesenti, and not upon a contingent; and because the wife at the time of the limitation was not capable, she shall never take after; and yet it may be said, That a joint Estate may be in esse, and yet to begin at several times: as 18 E. 4. 12. A Feoffment is made to three, and Livery is made to one of them; and first one of them agrees to the Livery, and a year after, another agreeth, and afterwards the third; although they take nothing until agreement, yet when they have agreed, the agreement shall have relation to the time of the Livery; but in truth, the reason thereof is, because the Freehold shall be adjudged in them all, until they have disagreed. And if a disseisin be to the use of A. B. and C. And first A. agrees to it, and afterward B. and after C. although they took nothing until agreement, yet when they have agreed, their agreement shall have relation to the time of the first disseisin; and if in such case the Disseisor had made a Lease before agreement, the party to whose use after agreeing, shall avoid such Lease. CCLXXXIV. Stamford 's Case. Hill. 16 Eliz. In the Common Pleas. THE Case was, A. took a wife, and afterwards married Elizabeth Stamford, living his first wife, and by Deed gave part of his goods to the said Elizabeth; and as to the residue of his goods, being but of small value, he made the said Elizabeth his Executrix, and died; she refused the Executorship, for which the Ordinary committed Adminstration to B. Gawdy, Serjeant, asked the advice of the Court, against whom the Action of Debt should lie? for, if the Creditor impleadeth the Administrator, he hath not Assets; if the Executrix herself, she will plead that she hath renounced the Cxecutorship, and that Administration is committed to B. And the opinion of Dyer, justice, was, That the Gift is void by the Common Law, and also by the Statute of 13 Eliz. and then, if the Gift be void any way, the Creditor may have an Action of Debt against the said Elizabeth as Executor of her own wrong: And see that such a Gift is void by the Common Law, 43 E. 3. 2. And by Manwood, justice, He who takes the goods of the dead, shall not be charged as executor of his own wrong, unless he doth something as Executor: as to pay Debts, make Acquittances, etc. See 41 E. 3. 31. 32 H. 6. 7. Dyer, If one takes the goods of the dead, and converteth them to his own use, he is chargeable as Executor, and so it hath been adjudged in the time of this Queen, in the Case of one Stokes, which was affirmed by Bendloes and Harper: See now Co. 2 Part. 53. Read's Case; where no lawful Executor, or Administrator is, there, if a stranger takes the goods of the dead into his possession, the same is a good Administration to charge him as Executor of his own wrong. CCLXXXV. Hill. 19 Eliz. In the Common-Pleas. Ante 178. THE Case was, A man made a Feoffment in Fee to the use of himself for life, and afterwards to the use of his eldest son in tail; and after, to the use of his right heirs, not having at the time of the Feoffment any son; afterwards he suffered a common Recovery, had issue a son, who died in the life of his father, having issue a son, and afterwards he himself died; It was holden by the justices in this Case, That the son and heir of the son should not avoid this Recovery by the Statute of 32 H. 8. for there was not any remainder in him at the time of the Recovery had, and the words of the said Statute are; That such Recovery shall be void against such persons to whom the reversion, or remainder shall then appertain, i. e. at the time of such Recovery. And it was said by one of the Sergeants at Bar; That if lands be given to E. for life, the remainder to B. in tail, the remainder to C. in Fee, B. dyeth, his wife young with child, with a son; a Recovery is had against E. with the issue of C. and afterwards the son is born, he shall not be helped by this Statute of 32 H. 8. for that remainder was not in esse, at the time of the Recovery. But it was holden in the principal Case, That the heir might avoid the said Recovery by the Common Law; for the recompense cannot extend to such a remainder, which is not in esse. CCLXXXVI. Sidenham and Worlington 's Case. Pasch. 27 Eliz. In the Common Pleas. 1 Cro. 42. IN an Action upon the Case upon a Promise, the Plaintiff declared, That he at the request of the Defendant, was surety and bail for J. S. who was arrested in the King's Bench, upon an Action of 30 l. and that afterwards, for the default of J. S. he was constrained to pay the 30 l. after which, the Defendant meeting with the Plaintiff, promised him for the same consideration, That he would repay that 30 l. which he did not pay, upon which the Plaintiff brought the Action; the Defendant pleaded, Non assumpsit, upon which issue was joined, which was found for the Plaintiff. Walmsley, Serjeant, for the Defendant, moved the Court, That this consideration will not maintain the Action, because the consideration and promise did not concur and go together; for the consideration was long before executed, so as now it cannot be intended that the promise was for the same consideration, As if one giveth me a Horse, and a Month after, I promise him 10 l. for the said Horse, he shall never have Debt for the 10 l. nor Assumpsit upon that promise; for there is neither contract, nor consideration, because the same is executed: Anderson, This Action will not lie; for it is but a bare agreement, & nudum pactum, because the contract was determined, and not in esse at the time of the promise; But he said, it is otherwise upon a consideration of marriage of one of his cousins; for marriage is always a present consideration: Windham agreed with Anderson, and he put the Case in 3 H. 7. If one selleth a Horse unto another, and at another day he will warrant him to be sound of limb and member, it is a void warrant, for that such warranty ought to have been made or given at such time as the Horse was sold: Periam, justice, conceived, That the Action did well lie; and he said, That this Case is not like unto the Cases which have been put of the other side: For there is a great difference betwixt Contracts and this Case, for in Contracts upon sale, the consideration, and the promise, and the sale, aught to meet together, for a Contract is derived from con and trahere, which is a drawing together, so as in Contracts every thing which is requisite, aught to concur and meet together, viz. the consideration of the one side, and the sale or the promise on the other side; But to maintain an Action upon an Assumpsit, the same is not requisite, for it is sufficient, if there be a moving cause or consideration precedent, for which cause or consideration the promise was made, and such is the common practice at this day: For in an Action upon the Case, upon a promise, The Declaration is laid▪ That the Defendant, for, and in consider action of 20 l. to him paid, (posted scil.) that is to say, at a day after super se assumpsit, and that is good, and yet there the consideration is said to be Executed; And he said, that the Case in Dyer, 10 Eliz. ●72. would prove the Case; For there the Case was, That the Apprentize of one Hunt, was arrested when his Master Hunt was in the Country, and one Baker, one of the neighbours of Hunt, to keep the said Apprentize out of prison, became his ball, and paid the Debt; afterwards Hunt the Master, returning out of the Country, thanked Baker for his neighbourly kindness to his Apprentize, and promised him, that he would repay him the sum which he had paid for his servant and Apprentize: And afterwards, upon that promise, Baker brought an Action upon the Case against Hunt, and it was adjudged in that Case, that the Action would not lie, because the consideration was precedent to the promise, because it was executed and determined long before. But in that Case, it was holden by all the justices, That if Hunt had requested Baker to have been surety or bail, and afterwards Hunt had made the promise for the same consideration, the same had been good, for that the consideration did precede, and was at the instance and request of the Defendant. Rhodes, justice, agreed with Periam; and he said, That if one serve me for a year, and hath nothing for his service, and afterwards, at the end of the year, I promise him 20 l. for his good and faith full service ended, he may have and maintain an Action upon the Case upon the same promise, for it is made upon a good consideration; but if a servant hath wages given him, and his Master, ex abundanti doth promise him 10 l. more after his service ended, he shall not maintain an Action for that 10 l. upon the said promise; for there is not any new cause or consideration preceding the promise; which difference was agreed by all the justices, and afterwards, upon good and long advice, and consideration had of the principal Case, judgement was given for the Plaintiff, and they much relied upon the Case of Hunt, and Baker, 10 Eliz. Dyer, 272. See the Case there. CCLXXXVII. Higham 's Case. Trin. 25 Eliz. In the Common-Pleas. 1 Cro. 15. More 221. 3 Len. 130. IT was found by special Verdict, That Thomas Higham was seized of 100 Acres of Lands, called Jacks, usually occupied with a House; and that he let the said House, and 40 of the said 100 Acres to J. S. for life, and made his Will, by which he devised the said House, and all his Lands called Jacks, then in the occupation of the said J. S. unto his Wife for life, and that after the decease of his Wife, the remainder thereof, and of all his other Lands belonging to Jacks, should be to R. his second son, etc. And by Mead, The Wife shall not have by implication the residue of Jacks; for she had an express Estate in the House and 40 Acres of Lands, and having expressed his Will concerning the same, it shall not be extended by implication; and he said, It had been adjudged between Glover and Tracy, That if Lands be devised to one, and the heirs Males of his body, and if he die without heirs of his body, that then the Land shall remain over, that the Donee hath but an Estate in tail to the heirs Males of his body: Anderson, 1 Roll. 839. in the time of Sir Anthony Brown, it was holden that if a man seized of two Acres of Lands, deviseth one of them to his Wife for life, and that J. S. shall have the other Acre after the death of his Wife, that the Wife hath not any Estate in the latter Acre. It was also moved, What thing shall pass to his second son by this Devise? and by the Lord Anderson, The words, usually occupied with it, amount to the words, the Lands let with it; but these 60 Acres are not let with it, therefore they shall not pass: Windham contrary; Although they do not pass by the words, occupied with it, yet they shall pass by the name of Jacks, or belonging to Jacks; and afterwards, Anderson, mutata opinine, agreed with him. A TABLE OF THE Matters in this Book. A Assize, 11 55 94 Action upon the Statute of 5 Eliz. for Perjury, 18 Abatement of Writs, 18 64 Action upon the Statute of 13 E. 1. of Winchester, 19 109 212 Actions of Slander, 34 74 120 127 146 Assignment of a duty to the Queen for a Debt if good, 79 Account, 91 245 Appeal of Burglary, 111 Award, where good, and where not, 130 145 Action not good upon a Lease, until the whole term be expired, 137 In Appeal of Robbery, one shall not have restitution without fresh suit, 183 Attaint of Felony, 169 Appeal of Murder, 195 Action against an Executor who refused the Executorship, 221 Assumpsit upon an agreement to become bound in a Bond for the sum promised, 223 Action upon the Statute of 5 Eliz. concerning Perjury. 249 C COvenant, 5 17 60 153 155 164 237 268 Covenant to levy a Fine, 114 Custom, 10 140 Costs none, upon Nonsuit in an Action upon an escape, 12 Conversion by the Executors of the goods of the Testator, 42 Challenge of Jurors, 53 141 Common Recovery, 61 89 169 170 275 Costs upon the Statute of 28 H. 8. not allowed, 71 Copyholds and Copiholders, 97 142 264 Capias ad satisfaciendum sued out, and not prosecuted within a year and a day, if Scire facias must be sued out, 101 Condition in a Lease void, if repugnant to the Demise, 176 Conveyance of Lands to Feoffees with condition, etc. 175 Capias ad satisfaciendum sued out after a Release: an Audita quaerela lies, 215 Case, for disturbing him of his Common, 229 Case, for Toll, 240 Case, for misusing of the Plaintiff's Horse, to which the Defendant pleaded, that the Horse was waved within his Manor, etc. 242 Case upon a promise, whereas one became surety and bail to J. S. and afterwards, for default of J. S. he was constrained to pay the money: J. S. promised for the same consideration to repay the money. 286 D DIminution, 3 Distress for Rent, 8 Debt, 10 26 33 49 88 90 122 126 136 150 153 162 163 172 181 189 200 208 248 Debt for Rent, 14 28 67 121 Dower, 15 85 174 238 Devise, 16 92 123 165 171 198 239 243 276 279 280 287 Debt upon Recognizance 24 Descent no plea, nor any title against the Queen, 37 Debts of the King by the Statute of 33 H. 8. 39 Disseisin, 80 Distress, 179 Detinue, 201 Discharge of a promise a good plea upon an Assumpsit, 270 E ERror, 2 3 4 77 86 100 115 132 135 160 161 222 231 244 251 255 256 263 Entry of Records, 3 Estopell, 3 17 Extent, 20 75 167 Exceptions to a Writ, 47 Extendi facias sued out, and the Liberate not returned, if good, 65 Escape, an Action of Debt brought upon it, 112 Execution upon a Statute, and the Sheriff voluntarily sets him at large, 117 Execution, 202 Enquest taken at the instance of the Plaintiff, 203 Ejectione firm, 250 Exposition of Statutes do belong unto the Queen's temporal Courts, 267 F FEoffments to Uses, 7 25 118 183 194 218 233 257 282 285 False imprisonment, 43 Fine, 38 73 139 169 191 206 263 Formedon, 84 196 Feoffment in Fee of Lands parcel of the Duchy of Lancaster, how, and of whom the Tenure shall be, 184 Fines in Courts, 219 G GRant, the Advocatione Ecclesiae, what passeth, 106 Grant of Lands of the Duchy of Lancaster by the King unto another, Tenend. in Fee-farm if this Land shall be holden of the King in Capite, or holden of the Duchy, 197 Gift, where void, both by Common-Law and the Statute of 13 Eliz. 284 H HEriot, 10 Habeas Corpus not well returned, day given to amend it, 213 I Judgement against Bail, 2 Indictment upon the Statute of 23 Eliz. of Recusancy, 6 Justicies no Original, but a Commission to the Sheriff, 41 260 Information upon the Statute of 18 H. 6. cap. 17. concerning the gauging of vessels of wine, 52 In consideration that the Plaintiff would stay an intended suit in Chancery, promised, that if the Plaintiff can prove, that the father of the Defendant took the profits of the Lands in question, that he would pay to him for all the said profits, 133 Information upon the Statute of Usury, 144 In consideration of marriage, the Defendant promised to pay to the Plaintiff 100 l. 146 Joint-tenants in Fee, grant a Lease for years, rendering Rend, and one dies, how the Rent shall be divided, 148 In consideration that the Testator would forbear the payment of a sum of money for a week, he promised to pay him within a week, if the Action will lie for the Executors, 149 Judgement not to be reversed but by Error or Attaint 154 Information upon the Statute of 27 Eliz. cap. 4. by the party grieved, The Plaintiff was nonsuit; yet shall not pay costs and damages, 156 Indenture delivered at another day, and not the day of the date 157 Indictment for enclosing of Common vi & armis, etc. not good, 159 Intruder dying in possession; the same descent taketh not away an Entry, 182 Indictment upon the Statute of 23 Eliz. of Recusants, 204 Indictment upon the Statute of Praemunire of 13 & 15 R. 2. 225 Indictment upon the Statute of 8 H. 6. of forcible entry, 226 232 Indictment for not repairing of a Bridge, 227 Indictment for an unlawful assembly and entry, 228 Indictment upon the Statute of 5 E. 6. cap. 4. for drawing of his dagger in the Church, 234 Indictment upon the Statute of 5 Eliz. of Perjury, 262 Judgement joint against three, will not lie against one of them in particular, 277 L LEases, 1 40 78 96 102 110 116 119 131 134 169 178 192 207 236 252 253 261 Leet, how holden, 31 98 266 Love is no consideration upon which to ground an Action, 35 Letters Patents, Bona & Catalla felonum, etc. 81 Letters Patents of Offices not to be repealed after the death of the Grantor, 128 Limitation and Condition with their difference, 52 M MAintenance in returning a partial Jury, 177 N Nuisance, for stopping a River with earth, by which land was drowned, 129 222 Nudum pactum quid, 187 O OUtlawry, 23 166 Obligation for appearance upon a Latitat, where void, 103 220 Office found, 169 Obligation that the Obligor shall not exercise his Trade within a Town, nor within a certain precinct of it, void, and against Law, 259 P PArtition, 3 Prescription, 13 Property, 35 113 Partitione facienda, 69 Privilege is not for an Attorney against an Attachment by the custom of London, 190 Presentments several, make the Church litigious, 205 Privilege pleaded for a Lord of Parliament, 209 Prohibition prayed to the Court of Admiralty, 224 Payment no good Plea without alleging it upon Record, 269 Proof, how to be made, 273 Q QVare Impedit, ●● 83 Quo Warranto, 266 R Receipt of the wife, 11 Rectory, Quid, 13 Rent charge, 21 185 186 Replevin, 29 58 82 87 107 158 168 170 211 274 281 Rents and Services, 57 Reparations, 72 Replicando, of his own wrong, how construed, 108 Remainder in tail, who was attainted of Felony, 169 Recognizance of good behaviour, 199 Recovery in a Writ of Entry, 214 Return of a Devastavit upon a Fieri facias, a motion to have an Elegit, 235 Replication, where good by Executors, 265 S SEals, 27 Special Plea to an English Bill, if it may be relinquished, 38 Sheriff must deliver all the prisoners in his custody over to his successor, 76 Scire facias against the bail in an action of Debt, to which was pleaded the death of the Defendant before Judgement given against him, 125 T TEnancy several, where no good Plea, 9 Trover and conversion, 22 50 217 278 Tithes, 30 32 93 95 98 105 124 180 216 Tail. 51 54 63 170 247 Trespass against the Warden of the Fleet brought in the King's Bench, 56 Tenant per altar vye, after the death of Cestuy que use holdeth over, if he be a Disseisor, 59 Tenant at will, if he may grant Copyhold Estates to Copiholders, 59 Trespass upon the Statute of 8 H. 6. of forcible entry, 70 Trespass for an assault and battery, 104 Tender of rent if refused, where good and where not, 173 Trespass by one Administrator against another for taking away the goods of the intestate, 188 Trespass Quare clausum fregit, and new assignment pleaded, 230 Toll, no lands to be discharged of it, but lands Socage only, 240 Trespass, Quare clausum fregit, 241 Trespass for taking of goods, and the Defendant justifies as Bailiff to J. S. 246 Trespass for breaking of the Plaintiffs close, and for killing his Coneys, 254 Trespass for cutting down of four Oaks, and the Defendant pleads, that he, and all those whose Estate he hath, etc. Habere consueverunt rationabile estoverium suum, for fuel, etc. 258 W WRit of entry in the Per, 9 Will of the Request of Land, and the name of the Devisor not in it, if good, 44 Waste, 45 46 62 210 282 Writ of Annuity, 68 Wager of Law, 143 Writ of Enquirie of damages, if too little damages be found; no other Writ, pro meliore Enquir. can be granted, 272 Writ of Entry Sur Disseisin, 283 FINIS.