The fourth part of the reports of several cases of law argued and adjudged in the several courts at Westminster, in the time of the late Queen Elizabeths reign collected by a learned professor of the law, William Leonard, Esq. ... published by William Hughes of Grayes-Inn, Esq. ; with tables of the names of the cases, and of the matters contained in this book.

THE FOURTH PART OF THE REPORTS OF SEVERAL Excellent Cases , Argued and Adjudged in the several COURTS of Law at WESTMINSTER . In the time of the Late Queen Elizabeths Reign .

Hil. 20 Eliz. I. Launtons Case .

A. Is bound in an Obligation , Emblements . that B. shall enjoy a Lease of black Acre immediately after his death : The Land being sown , the Executors of A. take the Corn ; it was holden , the Obligation was not forfeited , for that by the Laws the Corn did belong to the Executors .

II. Pasc. 23 Eliz.

A Man possessed of a Term devised the same to his Son when he came to the age of 18 years , Devise . and that his Wife should have it in the mean time , and made his Wife his Executrix , and died before the Son came to the age of 18 years the Wife took Husband : It was holden that she should have the Term as Executrix , till the Son came of the age of 18 years .

III. Mich. 23 Eliz.

A Man made a Feoffment in Fee sub Conditione , ea intentione , that his Wife should have the Land for her life , the remainder to his younger Son in Fee : The Feoffee died without making such an Estate ; the Heir of the Feoffor entred ; it was resolved , that it was not a Condition , but an Estate , which was executed presently according to the intent .

Trin. 8 Eliz. IV. Manning and Andrews Case .

Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar. HVsband and Wife Donees in special tail , the Husband levied a Fine of the Lands . It was holden if the proclamations pass in his life time , or before the Wife by her entry had avoided the Fine , the Issue should be barred : otherwise , if the Husband had died before the proclamation had passed .

27 Eliz. In the Common Pleas. V. Buckhursts Case .

Extinguishment . LEssee for 10 years granted a Rent Charge to his Lessor for the said years , the Lessor granted the remainder in Fee to the Lessee for years : It was the opinion of the Iustices , that the rent was gone , because the Lessor , who had the rent , was Party to the destruction of the Lease , which is the ground of the rent .

26 Eliz. VI. Pulmants Case .

Assumpsit . ONe who is indebted promiseth to pay it upon request , in an Action upon the Case upon that Promise , the Party needs not to express the Assumpsit with the request , it being an old debt , but otherwise it is , where there is such a promise , without any duty precedent .

VII . Hill. 26 Eliz. In the Kings Bench.

Assumpsit . A Man in consideration of 20 l. paid him , promiseth to assign to J. S. the Lease of a Stranger : It was adjudged , that an Action would lie upon such a promise , because the Assumor might purchase the House and then assign it .

Hil. 26 Eliz. In the Kings Bench. VIII . Rawson and Browns Case .

A. Being in prison at the suit of B upon an account , Assumpsit . and in custodia Marescalli . The Marshal suffers him to escape : A. being at liberty promiseth to B. that if he will permit him to be at large , and further , if he do such an act , that he will pay to him 10 l. which he doth not pay : whereupon B. brings Assumpsit against him , it was adjudged that the Action would not lie ; for that both the considerations ought to be proved , and A. was at large before .

31 Eliz. In the Kings Bench. IX . Strangborough and Warners Case .

NOte , Assumpsit . That a Promise against a Promise will maintain an Action upon the Case , as in consideration that you do give to me 10 l. on such a day , I promise to give you 10 l. such a day after .

31 Eliz. X. Escrigs Case .

IF an Executor promiseth to a Creditor , Assumpsit . that if he will forbear to sue him until such a time , that then he will satisfie the Creditor his debt ; in that case the Execuor is liable to pay the debt of his own goods ; adjudged .

30 Eliz. In the Kings Bench , Rot. 30. XI . Kirkman and Reignotts Case .

A Lease was made to two , Habendum to them , Occupant . and to two others for their four lives , and the longer liver of them : It was resolved , that the two named in the Habendum should not take any thing , and that if the two first die , there should be no Occupancy , for the lives of the two in the Habendum , was intended an Estate to them , and not a Limitation of the Estate of the first two .

Pasc. 30 Eliz. XII . Barkhouse Case .

DEbt against Lessee for years for rent : Forfeiture . The Defendant claimed Fee in the Land whereas he had no Fee : It was resolved that it was a forfeiture .

XIII . Pasc. 31 Eliz. In the Common Pleas.

Avowry . IT was resolved by the Iustices , that an Avowry might be for part of a Rent .

Mich. 28 Eliz. In the Kings Bench. XIV . Strangden and Burnets Case .

IN an Action of Trover and Conversion of Goods to his proper use in Ipswich : The Defendant pleaded that the Goods came to hands in Dunwich in the same County , and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich , Pleadings . absque hoc that he is guilty of any Trover or Conversion in Ipswich : It was ruled to be a good manner of pleading , by reason of the special Iustification , Vide 27 H. 6. But where a Iustification is general , the County is not traversable at this day , Vide 19 H. 6 , 7.

24 Eliz. In the Common Pleas. XV.

Infant . AN Infant made a Lease for years rendring rent , and when he came to his full age , he said to his Lessee , God give you joy of it : It was holden by Mead Iustice , that thereby the Lease was affirmed and made good .

Pasc. 25 Eliz. XVI . Fullers Case .

ONe is bound to pay his rent at a day certain , payment before the day , adjudged , doth not discharge him .

29 Eliz. In the Kings Bench. XVII . Carter and Martens Case .

Payment . TWo are bound for a Debt , the Principal makes the Surety his Executor who pays the Debt generally : Quaere if it shall be as Executor or as Obligor .

XVIII . Pophams Case .

Bargain and Sale. LAnd was bargained and sold , the Bargainee levies a Fine of the Lands , and afterwards within the six months the Deed is enrolled . It shall pass by the Fine , and the Conusee shall have the Land , for the Enrollment shall relate to the time of the bargain and sale .

18 Eliz. XIX . Henninghams Case .

IT was adjudged in this Case , that he who is special Heir by the Custom , as of Borough English Land , shall have the Writ of Error , and not the Heir at the Common Law.

Hil. 19 Eliz. Adjudge . XX. Parry and Herberts Case .

LEssee for years upon Condition that he shall not grant over the Land by Will or otherwise , Condition . and he deviseth the same to his Executors , who except it only as Executors , and not as Devisees : It was holden , that the Condition was broken : because he had done as much as in him lay to have granted it over .

In the Exchequer . XXI . Sir Thomas Hobbies Case .

A Man hath issue two Sons , and is attainted , Heirs . the eldest Son purchaseth Land , and dyeth without issue , the second Son shall inherit the Land as Heir to him , notwithstanding the attainder of the Father , because the blood is not corrupted between the two Sons .

Mich. 29 Eliz. In the Kings Bench. XXII . Barton and Edmunds Case .

AN Infant and another were bound for the debt of the Infant , Infant . the Infant at his full age promised to save the other harmless , the Infant died ; It was adjudged , that upon this Assumpsit , Assumpsit . an Action upon the Case did lie against his Executors .

XXIII . Mich. 36 Eliz. In the Kings Bench , adjudged .

IF an Executor promise to pay a Debt when he hath not Assets ; It was the Opinion of all the Iustices ; that no Action upon the Case lieth against him ; but if he hath assets , then it is otherwise : And the Heir if he hath nothing by descent , is not subject to an Action upon such a promise .

Mich. 28 Eliz. XXIV . The Lord Pagets Case .

Indictments . AN Indictment was Quare vi & armis clausam A. B. apud D. fregit , whereas A. B. then had a Lease at Will of the land , the matter was for digging of Turfs : the Indictment was holden to be good .

XXV . 25 Eliz In the Kings Bench.

Indictments . INdictment De uno Equo , where it was a Gelding , holden not good : But otherwise it is , where Trespass was brought de Equo castrato , and the Iury found a Gelding , and adjudged for the Plaintiff .

26 Eliz. XXVI . Tucker and Nortons Case .

Execution . AN Infant in Execution upon condemnation in Debt sued a Writ of Error , his Father and Brother bailed him : It was said the Recognisance shall be by them two only that the Infant shall appear , and if the Iudgment be affirmed , that they pay the mony , and not that they shall render his body to prison , for when he is once discharged out of Execution , he shall never be in Execution again .

XXVII . Mich. 29 Eliz. In the Common Pleas.

Nobleman . Recognizance . IT was holden by the Iustices , That a Nobleman shall be bounden with his bail in a Recognizance , that he shall render his body , and that upon the Statute of 13 E. 1. If he hath not goods or lands , his body shall be taken in execution , for the Law in such case excepts only Clarks .

XXVIII . Hil. 26 Eliz. In the Exchequer .

Felo de se . THe Queen granted to one Catalla utlagatorum & felonum de se within such a Precinct , One indebted to the Queen having Goods is felo de se , within the Precinct : Resolved the Queen should have the Goods to satisfie her debt .

26 Eliz. In the Kings Bench. XXIX . King and Cottons Case .

LEssee for life , the remainder in tail , the remainder in fee , Disseisin . Lessee for life makes a Deed of Feoffment of the Land , and delivers it , and makes a Letter of Attorney to another to deliver Seisin , who enters and makes Livery accordingly ; adjudged that the Attorney is a Disseisor .

26 Eliz. In the Kings Bench. XXX . Gerrards Case .

THe Owner of the Lands severed his Tythes , Prohibition . and a stranger took them and carried them away . The Parson libelled in the Spiritual Court against the Owner of the Land for the Tythes ; who thereupon prayed a Prohibition . It was adjudged no Prohibition should issue in this Case ; for that he might plead the same matter in Bar in the Spiritual Court.

Hil. 31 Eliz. XXXI . Willet and Wilkinsons Case .

NOte , it was adjudged , Surrender . that if Lessee for years take another Lease from the Guardian in Soccage , that the same is a Surrender of his first Lease : Note , the second Lease was made in the name of the Guardian .

Trin. 26 Eliz. XXXII . Ould and Conyes Case .

IT was adjudged , Commoner , Conies . that a Commoner cannot kill Conies which destroy his Common , though he hath not any other remedy .

Trin. 29 Eliz. In the Kings Bench. XXXIII . Mayes Case .

ONe sent a Letter by a Carrier to a Merchant for certain Merchandizes to send them to him , receiving a certain sum of mony , the Merchant sent the Merchandizes by the Carrier , without receiving the mony : It was the opinion of the Iustices , that the Buyer should not be charged for the mony , for it was a conditional bargain , and it was the folly of the Merchant to trust the Carrier with the Wares .

Mich. 30 Eliz. XXXIV . Haltons Case .

A Recognizance was acknowledged before Sir N. Read one of the Masters of the Chancery , Recognizance . Inrollment . and the Recognizor died before it was enrolled , it was doubted , if it might be enrolled at the Petition of his Executors ; it was agreed by the Iustices that it might be well enough , for it is like to a Conusans of a Fine before a Iudge , which may be removed out of the hands of the Iudge by Certiorari , and yet it is not a Record till the perfection of it : At the same time it was doubted also , if the Chancery would aid a man , when there wanted the words ( Heirs ) in a Deed where the land was sold for mony . Chancery compel Attornment . But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn.

Hil. 27 Eliz. XXXV . Holland and Hopkins Case .

IN Ejectione firmae it was agreed by the Court , that if a Disseisor be of an 100 Acres , and he lets the same to divers for Years , that the entry into one Acre by the Disseisee is an entry against them all ; but if they had been Tenants for life , Quaere , for that then he might have his Action against them : And it was said , Entre congeable . that if one makes a Lease for years , rendring for the first two years 10 l. and afterwards 30 l. every year , with condition , if the rent of 30 l. or any part of it be behind , that the Lessor enter ; The Lessor enters for not payment of the 10 l. that his entry is lawful , for the 10 l. was parcel of the rent , for it was but one rent .

Trin. 29 Eliz. In the Kings Bench. XXXVI . Clamp and Clamps Case .

Copyholder Surrender . A Copyholder in possession surrendred the Reversion of his land post mortem suam to the Lord to an use , &c. It was adjudged , that thereby nothing passed .

XXXVII . Trin. 21 Eliz. In the Common Pleas.

A Lease was made of a Mannor , with all Gardens , Orchards , Yards , &c. and with all the profits of a Wood , except to the Lessor forty Trees to take at his pleasure : It was a Question , if the Lessee should have the Wood : It was the opinion of Dyer , That the Wood was not comprised within the Lease , but the Lessee should only have the profits , as pawnage , Leases . herbage , &c. And he said it was a Case adjudged ; a man made a Lease of a Wood ad faciendum maximum proficuum meliori modo quo poterit , that the Lessee thereby could not cut the Trees , nor do waste .

Mich. 33 Eliz. In the Exchequer . XXXVIII . Butler and Lightfoots Case .

IT was holden by the Barons , Copyholder Surrender . 3 Leon. 239. That if Tenant for life be of a Copyhold , the Remainder over in Fee to another , he in the Remainder , may surrender his Estate , if there be no custom to the contrary ; for the Estate of Tenant for life , and he in the Remainder , are but one Estate , and the admittance of the particular Tenant is the admittance of him in the Remainder .

XXXIX . Mich. 33 Eliz. In the Exchequer .

IN an Information upon the Statute of 5 Eliz. cap. 4. Upon Statute of 5 Eliz. Apprentices . against one for exercising the Trade of a Chandler , not having been an Apprentice to the same by the space of 7 years : It was holden by the Iustices , That for as much as he had been Apprentice to a Taylor for 7 years , which is one of the Trades mentioned in the said Statute , that the penalty thereof did not extend to him , but Iudgment was given against the Informer : For it was holden clearly upon the said Statute , That if one hath been an Apprentice for 7 years at any Trade mentioned within the said Statute , he may exercise any Trade named in the said Statute , although he hath not been an Apprentice to it . —

Mich. 33 Eliz. In the Exchequer . XL. Sir John Hawkins and Chapmans Case .

IF A. be bounden to B. by Obligation with Condition for the performance of Covenants although the Covenants , Assignment of Bonds to the Queen . or some of them , be for payment of money , yet the assignment of such Bonds to the Queen shall not be received , and if it be assigned , it shall be put out of the Court ; For no Bonds shall be assigned ut supra , but such which are made for payment of money .

XLI . Mich. 33 Eliz. In the Exchequer .

A. Lessee for years , the remainder to B for years ; the term of A. came to the Queen and afterwards the Reversion . Clark Baron said , That the Lease of B. should begin presently , and cited the Case 1 Eliz between Wortesly and Adams , where a Lease for years is made to A. and afterwards a Lease in Reversion is made to B. for years . A. obtains an Estate for life from him in the reversion ; the Lease of B. shall begin presently : But Manwood Chief Baron held that the first Lease was not extinct .

XLII . Mich. 33 Eliz. In the Exchequer .

Upon Stat. 31 Eliz. of Inmates . UPon the Statute 31 Eliz. cap. 7. the Case was this : A Woman having a great Messuage , viz. a Brewhouse alotted to her for her Dower , let the same to another , reserving to her self two or three Rooms of it , and now an Information was exhibited against the Lessee upon the said Statute . Clark Baron , A Cottage proprie loquendo , is where a poor man inhabits , and this being a great Messuage cannot be said a Cottage ; Inmates are , where there are more Families than one . Manwood , Be it a Messuage or a Cottage , for more Families than one makes a Messuage a Cottage , as to this Statute . Gent. The words of the Statute are , There shall not be more Families than one in any Cottage made , or to be made , and I conceive it ought to be a Cottage accounted in Law , before the inhabitations of the Inmates . Clark , If I grant to you all my Cottages in D. my Messuages shall not pass : If I marry my Daughter , and she and her Husband inhabit with me in the same house , are these Inmates ? Manwood . An Inmate is such an one who is at his own finding , and therefore if the Husband and Wife are entertained there at the charge of the Father of the Daughter , they are not Inmates : And if in our Case any Inmate be , the same is the Woman , for she hath the lesser part of the Messuage .

Mich. 33 Eliz. In the Exchequer . XLIII . Cursons Case .

3 Leon : 239. Execution of a Statute binds the King. CUrson acknowledged a Statute to Alderman Starkey of London , and afterwards he acknowledged another Statute to one Hampden , who assigned the same to Fitton , who assigned the same to the Queen : Starkey sued forth Execution upon his Statute , and the Lands of Curson are Extended , and he hath a Liberate of it : Assignment to the Queen . It was agreed by all the Barons , if Starkey had Execution upon his Statute before the Queen , the Execution shall stand against the Queen , and the Queen should not put him out . A. recovers Debt in the Kings Bench , so as he hath Title to sue Execution by Elegit . The Defendant sold his Lands , and afterwards A. assigned his Execution to the Queen : It was holden , that the Queen should not have Prerogative against the Feoffee , to have Execution of the whole Land ; and it was holden by Manwood Chief Baron , If Execution be had upon a puisne Statute , and that is afterward avoided by an elder Statute , and the elder Statute is satisfied by the Execution , now the younger Recognizee shall enter without suing forth a new Execution .

Trin. 26 Eliz. In the Kings Bench. XLIV . Clarks Case .

IN Ejectione firmae , The Case was , the Master . Brothers , Leases by Corporations . Misnosm . and Sisters of the Hospital of the blessed Mariae Virginis , by Indenture , by the name of the Hospital Beatae Mariae , &c. leaving out the word ( Virginis ) leased the Land : It was resolved , that notwithstanding the want of the word ( Virginis ) that the Lease was good : Then it was moved , that the words of the Indenture are , Haec Indentura inter Magistrum , Fratres , & Sorores Hospital . Beatae Mariae , &c. Testatur ; that the said Master , with the assent of the Brothers and Sisters aforesaid , had leased to A. in cujus rei testimonium , the said Master , with the assent of the Brothers and Sisters aforesaid had put their common Seal : Ayliffe and Clench Iustices , held that the Lease was void , for here the Brothers and Sisters , being one entire Body with the Master , are not parties to the Indenture , but give their consent only : And it is not like to the Case , where Abbot or Prior makes a Lease for years , with the assent of their Covent , for the Monks and Friers , being dead persons in Law , cannot be parties to the Lease ; but here in the Case at Bar , the Brothers and Sisters are persons able in Law : And it is not like to the Case of Parson , Patron , and Ordinary , where the Parson with the assent of the Patron and Ordinary , grant a Kent-charge , for there the Parson is the principal Grantor , and the others have not any express interest in the Land charged : Gawdy Iustice contrary , It is more honourable for Iudges to maintain Leases made by Corporations , than for to permit them to avoid the same : And he said for law , If two Ioyntenants be of Lands , and they make the like Indenture , viz. Testatur , that one of them with the assent of the other deviseth the Land , Leases , in witness whereof he , with the assent of the other , hath put his Seal , it is a good demise by them both : But Clench said , that is not like our Case , for the two Ioyntenants are distinct persons and the one of them may assent to the other ; but in our Case , the Master , Brothers , and Sisters are but one person in Law , and a Body cannot be distinct , so as one can consent to the other : which Ayliffe concessit : Wray Chief Iustice was absent in the Star-Chamber .

Trin. 26 Eliz. In the Kings Bench. XLV . Harvey and Harveys Case .

Suit for Legacies . Prohibition . CLare Harvey libelled against Sebastian Harvey , the Executor of Sir James Harvey their Father , for a legacy bequeathed to him by his Father in his Will . By which he willed , that after his death his Goods should be divided and parted betwixt his Children , according to the laudable custom of London , and averred in his libel that the Goods and Chattels whereof the Testator died possessed , amounts to such a sum , and that it belonged unto him , being one of his children , to demand so much , Virtute Legationis praedict . The Defendant came and prayed a Prohibition , and Wray Chief Iustice conceived he ought to have it , for here is not any legacy , but the Testator setteth forth his meaning , that his pleasure is that the custom of London should be observed in the disposition of his Goods ; and the said Clare is put to his Writ de rationabili parte Bonorum . But yet afterwards , a special Consultation was granted .

Pasc. 27 Eliz. In the Common Pleas. XLVI . Sandersons Case .

Leet . NOte , It was adjudged by the Court , that Pound-breach is not inquirable in a Leet , for it is not a common Nusans : But Rhodes Serjeant said that excessive Toll is inquirable in a Leet . Vide Book of Entries 390.

XLVII . Pasc. 37 Eliz. In the Common Pleas.

Abatement of Writ . IN a Quare Impedit by the Queen , exception was taken to the Writ , because the words were quod permittat ipsam praesentare ad Rectoriam de D. where it ought to be ad Ecclesiam : the Court awarded that the Writ should be openly amended in Court by a Clerk of the Chancery . Amendment .

XLVIII . Pasc. 27 Eliz. In the Common Pleas.

Pleadings . IN a Writ of Entry for Disseisin , the Tenant said , that the House in demand is within the City of London , and that the said City is an ancient City , and that King Henry 3. concessit Civibus Civitatis praedict quod non implacitentur de terris , & tenementis suis , &c. extra Muros Civitatis praedict. and said that he himself is a Citizen of London , and demanded judgment of the Writ ; and to the Pleading he further said , Sed illis rectum teneatur infra Civitatem praedictam secundum Consuetudinem Civitatis praedict. Exception was taken to the Plea , because the Tenant did not shew before that by their custom they ought to be impleaded : And by the Opinion of the whole Court , the Tenant ought to have shewed , that the Citizens for their lands there ought to be impleaded in the Hustings , &c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam secundum consuetudinem Civitatis praedict. do not supply the defect aforesaid : And afterwards it was awarded that the Tenant plead Ouster .

Mich. 21 Eliz. In the Common Pleas. XLIX . Hunt and Sones Case .

AN Action upon the Case by W. Hunt against W. Sone . Assumpsit . 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. & 30. ibid. The Plaintiff declared , Quod cum idem Hunt was seised in his Demesn as of Fee , of certain lands , and shewed the same in certain ; praedict. Sone in consideration that the said Hunt permit the said Sone occupare terras praedict. ab eodem die . 20 Julij 27 Eliz. usque ad secundum diem Novembris , which should be in Anno 1589. assumed and promised , that he the said William Sone ad festum omnium Sanctorum proxime sequend . 10 l. 2 s. 6 d. ac ab inde annuatim durante dict. termino . 20 l. 5 s. ad festa Annunciationis Beatae Mariae , ac omnium Sanctorum , per aequales portiones solvend eidem Hunt bene & fideliter contentare vellet , at licet praedict. W. Hunt permisit praefat. Sone occupare terras praedict. a dict. 20 die Julij 27 Eliz. Usque ad secundum diem Novemb. 28 Eliz. Licetque etiam post dict. 20 diem Julij 27 Eliz. & ante praedict. diem secund. Novemb. An 28 Eliz. dict. fest. omnium Sanctorum An. 27. Supradict. ac fest. Annunciationis Beatae Mariae Virginis , ac fest. omnium Sanctorum 28 Eliz. praeterierunt , praedict. tamen W. Sone dict. 10 l. 2 s. 6 d. ad praedict. fest. omnium Sanctorum proxime sequend . post permissionem & assumptionem praedict , ac aliam 10 l. 2 s. 6 d. ad fest. Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest. omnium Sanctorum An. 28. Eliz. superdict . nondum solvit . The Defendant pleaded , that the Plaintiff entred into parcel of the Premises 6 October 28 Eliz. & eadem occupare eundem Sone non permisit ; upon which they were at Issue , and it was found for the Plaintiff ; it was moved in stay of Iudgment , that the Plaintiff had no cause of Action before that all the Term was expired ; for it is an entire Assumpsit , and cannot be severed by action , and therefore it was said , that if I promise to pay you 10 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. there before the last day of payment no Action lieth , for the sum of 20 l. is one sum entire : But if I promise to pay another , at Easter next 10 l. and at Midsummer as much , here they are several Assumpsits , and upon default of payment of the first sum an Action will lie without excepting the latter payment . But at last the Court agreed , That Iudgment , notwithstanding that exception should be given for the Plaintiff , and that the Declaration was good enough , as well in respect of the Exception aforesaid , as also that the word ( Licet ) was effectual enough to set forth the permission .

L. Hil. 31 and 32 Eliz , In the Common Pleas.

A. Disseised B. of two Acres of Land and leased one of them to C. at will , and the other Acre to D. at will , and they entred accordingly : B the Disseisee by Lease leased both Acres to E. for years , and entred into one of the Acres in the name of both , and sealed and delivered the Lease to E. It was holden by the Court to be a good Lease to maintain an Ejectione firmae of both Acres .

LI. Mich. 32 Eliz. In the Common Pleas.

2 Cro. 655 , 656 plus . 2 Roll. 416. Johnson versus Smart . cont . A. Seised of certain Lands and having two Sons , devised part of his Lands to his eldest Son in tail : and the other part of his Lands to his younger Son in tail , with this clause in the Will , that if any of his Sons dyed without Issue , that then the whole Land should remain to a stranger in Fee , and dyed the Sons entred into the Lands devised to them respectively , and the younger Son died without issue , and he to whom the Fee was devised entred : It was adjudged , That this Entry was not lawful , and that the eldest Son should have the Land by the implicative devise .

Mich. 32 Eliz. In the Common Pleas. LII . Frice and Fosters Case .

IN Ejectione firmae , the Plaintiff declared upon a Lease made 14 Jan. 30 Eliz. to have from the Feast of Christmas then last before , for three years ; and upon the Evidence the Plaintiff shewed a Lease , bearing date the 13 day of January the same year , and it was found by Witnesses , that the Lease was sealed and delivered upon the Land the 13 day of January : Variance . Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant , that for that variance between the Declaration and the Evidence of the Plaintiff , that the Iury might be discharged : Evidence good to maintain Issue . But Anderson Chief Iustice said , that the Evidence was good enough to maintain the Declaration , for if the Lease was sealed and delivered the 13 of January , it was then a Lease 14 January , Quod caeteri Justiciarii concesserunt .

LIII . Mich. 32 Eliz. In the Common Pleas.

IN a Quare Impedit against the Bishop of Coventry and Lichfield : The Case was , that A. seised of an Advowson in Fee , Quare Impedit by Executors . the Church voided , the Bishop collated wrongfully , A. dyed , Collation . it was holden that his Executors might have a Quare Impedit upon that disturbance , and that by the equity of the Statute , which gave an Action of Trespass to Executors of Goods carried away in the life of the Testator , 4 E. 3. cap. 7. and that the Clerk should be removed at the suit of the Executors .

Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Case .

THe Case was that the Husband seised of Land in the right of his Wife , made a Lease of it for years , Fine by the Husband where avoids a Lease & ê contra 1 Roll. tit . Charge in Marg. 389. Plow . Quaer. 31. 261. ib. plus . and afterwards he and his Wife conveyed the Land to a stranger by Fine , the Husband died . Wray Chief Iustice was of opinion that the Conusee should hold the Land discharged of the Lease . Gawdy , contrary , In case of a Rent granted , or a Recognizance acknowledged by the Husband , the Conusee of the Fine shall avoid any of them ; But in this Case the Conusee meddles with the Land it self , and an Estate in the Land is conveyed by the Husband , which none but the Wife or her Heirs shall avoid ; and if the Wife , after the death of her Husband , accept the Rent upon such a Lease , by that the Lease is confirmed .

Mich. 33 Eliz. In the Kings Bench , LV. Blaby and Estwicks Case .

IN Assumpsit , It was moved in stay of Iudgment , Assumpsit . that one of the Defendants was dead after verdict ; but notwithstanding that Allegation , Iudgment was given , Attornment . for the Court cannot take Notice of it judicially , nor any of the Parties hath day in Court to plead it , and therefore the Court is not to have regard to such Informations . Wray , It is not honourable for us upon such surmises , which cannot be tryed , to delay Iudgment ; and also the Party is not without remedy , for he may have a Writ of Error .

33 Eliz. In the Kings Bench. LVI . Hore and Briddleworths Case .

HOre brought Trespass against Briddlesworth , Quare clausum & Domum suam fregit ; the Defendant pleaded , and put the Plaintiff to a new Assignment , i. e. a House called a Stable , a Barn ; and another House called a Carthouse and Garnier : And that was assigned for Error for that Assignment is not warranted by the Declaration . Gawdy said it was good enough , for Domus in the Declaration contains all things contained in the new Assignment ; but if the Declaration had been of a Close , and the new Assignment of a Barn , it had not been good . Wray Chief Iustice , Domus est nomen collectivum , and contains many Buildings , as Barns , Stables , &c. And such was the Opinion of the Court.

Mich 33 Eliz. In the Kings Bench. LVII . Mans Case .

Prohibition . MAn was sued before the Commissioners in Ecclesiastical Causes , for an Incestuous Marriage , viz. for marrying his Wives Sisters Daughter , and although it be not expresly within the Levitical degrees , yet because more farther degrees are prohibited the Archbishop of Canterbury , and other the Commissioners gave Sentence against him , Consultation . upon which he sued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be special , that it be not within the Levitical degrees , and therefore a Consultation was granted .

Trin. 26 Eliz. In the Kings Bench. LVIII . Doylies Case .

Appeals . IN an Appeal de Roberie against Doyly ; It was agreed by the Iustices that the Party robbed shall have an Appeal of Robbery 20 years after the Robbery committed , and shall not be bound to bring it within a year and a day , as in the Case of an Appeal of Murder : Vide contr. 22 Ass. 97. vide Stamford 62.

Trin. 26 Eliz. In the Kings Bench. LIX . Ruishbrook and Pusanies Case .

THe Plaintiff brought Trespass for pulling down his Hurdles in his Close : The Defendant justified , by reason that one Beddingfield was Lord of the Mannor of D. and that the said Beddingfield , and all those whose Estate he had in the said Mannor , had had a free course for their sheep in the place where &c. And that the Tenant of the said Close could not there erect Hurdles without the leave of the Lord of the Mannor , and that the said Beddingfield let to the Defendant the said Mannor , and because the Plaintiff erected Hurdles without leave , &c. in the said Close , he cast them down , as it was lawful for him to do : The Plaintiff replyed of his own wrong without cause , &c. It was holden by the Iustices to be an ill Plea , Traverse . for the Plaintiff ought to have traversed the Prescription .

19 Eliz. In the Common Pleas. LX. Par Marquess of Northamptons Case .

PAr Marquess of Northampton took to Wife the Lady Bourchier , Heir of the Earl of Essex : Leases , by a Baron contrary to Act of Parliament , void . 3 Leon. 71. who levied a Fine of the Lands of the Lady sur Conusans de Droit , &c. with a Grant and Render to them for Life , the remainder to the right Heirs of the body of the said Lady . And afterwards by Act of Parliament ●5 H. 8. It was enacted . That the said Lady should retain part of her Inheritance , and dispose thereof as a Feme sole , and that the said Marquess should have the residue , and that he might lease the same by himself without the Wife for 21 years , or lesser term , yielding the ancient Rent , being Land which had been usually demised , &c. The Marquess leased the same for 21 years , and afterwards durante termino praedict . he let the same Land to another for 21 years , to begin after the determination of the former Lease . It was moved that the last Lease was void , for three Causes ; 1. Because the Marquess had but for Life , and then it cannot be intended , that the Statute would enable one , who had an Estate so determinable to make such a Lease , which peradventure could not begin in his Life . 2. The Letter of the Act is 21 years or under ; and the word ( under ) strongly expounds the meaning of the Act to be not to extend to such an Estate , for hereupon the matter is a Lease for 40 years . 3. Because the Land leased is the Inheritance of the Wife ; and it was said that in the Case of one Heydon such a private Act of Parliament was strictly construed , Acts of Parliament . It was enacted that all Copies for three Lives granted by the Lord Admiral , of the Lands of his Wife which was Queen Katherine should be good : The Admiral granted in Reversion for three Lives . It was holden that the Grant was void , and not warranted by the said private Act of Parliament . Dyer , The words are general , omnes dimissiones , therefore not to be restrained to special Leases . Manwood , A Feme covert by duress joyns in a Lease with her Husband , it shall bind her . The Case was adjourned .

LXI . Mich. 19 Eliz. In the Common Pleas.

THe Queen leased for years rendring 10 l. Rent ; the Lessee granted the Land over to A. rendring 20 l. Rent : A. granted the Land over to B. who surrendred to the Queen , and took a new Lease : And Manwood said , that the first Lessee should have an Action of Debt for the Rent of 20 l. against him , Debt for Rent . who was possessed of the Land , and not against A. his Assignee , for it is a Rent issuing out of the Land , and he who hath the possession of the Land shall pay it , and no other ; for if any part of the Land be evicted , the Rent shall be apportioned ; and because it is meerly a Rent , and ensues the privtiy real , viz. the possession of the Land , and not the privity personal , the Person of him who was party or privy to the Contract ; and he said , If the first Lessee , who reserved the Rent , entred upon the Land , the Rent is suspended . Dyer , The first Lessee hath Election which of them he will sue , 18 H. 6. 1. in Debt , against Lessee for years , for the Arrearages of Rent reserved upon it , he needs not declare that the Lessee had entred , for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt against the Lessee , notwithstanding the Assignment .

Mich. 26 Eliz. In the Common Pleas. LXII . Bluets Case .

BLuet granted the next Avoidance to Stell and Brooks , and was bound to Brooks in an Obligation that he should enjoy the said Presentment without any disturbance or claim of the said Bluet : Stell released to Bluet his Interest on the said Advowson ; The Church became void , Bluet ▪ offer'd to joyn with Brook , Obligation forfeited . in presenting to the Avoydance : It was holden in this Case , that the Obligation was forfeited , although that Bluet had a puisne Title to it , after the Obligation was entred into .

Mich. 32 Eliz. In the Common Pleas. LXIII . Shrewsbury and the Inhabitants of Ashtons Case .

Action upon Statute of Huy and Cry. AN Action was brought by Shrewsbury against the Inhabitants of the Hundred of Ashton in the County of Bucks , upon the Statute of Huy and Cry : It was moved by Fleetwood Serjeant , for the Defendants That if upon such Huy and Cry the Inhabitants do their endeavours as much as in them is , to pursue and take the Malefactors , and yet they cannot apprehend them , that in reason they ought not to be charged : But the whole was very strongly against him : For Anderson Chief Iustice said that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons , or to satisfie the Party robbed : and the Party robbed is not bound to give notice to the Inhabitants , nor to direct them which way the Felons took their flight , but the Inhabitants are bound to pursue the Felons without any such instruction . And afterwards the Inquest was taken , and gave a Verdict in this manner : That where the Plaintiff had declared that the Robbery was done in the Parish of D. in the Hundred aforesaid , the Iury found , that the place where the Robbery was done was a Lane within the said Hundred and that the one side of the said Lane was within the Parish of S. and the other side within the said Parish of D. and that the Robbery was done on the side of the said Lane , which was in the Parish of S. and prayed the Opinion of the Court upon the matter : And the whole Court was clear of Opinion . That notwithstanding the Exception , the Plaintiff should have Iudgment , for here is the right Hundred , which ought to be charged , and the mistaking of the Parish was not to the purpose .

Mich. 32 Eliz. In the Common Pleas. LXIV . Josselin and Josselins Case .

IN Debt ; the Plaintiff declared , That he let certain Lands for years to the Defendant , rendring Rent payable at the Feasts of the Annunciation and St. Michael , or within forty days after every of the said Feasts , and that the Rent was behind at the Feast of St. Michael last past , unde actio accrevit : The Defendant pleaded , Nihil debet ; upon which they were at Issue : It was shewed to the Court that here upon the Pleading is a Ieofail , for the Rent is reserved payable at the said Feasts , Jeofails . or within forty days after ; and he declares that the said Rent , upon which the Action was brought , was behind at St. Michael , without respect to the forty days after , which cannot be ; for before the forty days after each Feast , no Action did lie ; whereupon the Court awarded a Repleader .

Mich. 32 Eliz. In the Kings Bench. LXV . The Queen and the Earl of Shrewsburies Case .

THe Queen granted to George Earl of Shrewsbury , Grants of the King. Office of Marshal of the Kings Bench. An. 15 Eliz. the Office of Earl Marshal of England , and now came the said Earl and prayed that J. N. one of his Servants , to whom he had granted the Office of Marshal of the Kings Bench , might be admitted to it , because that the same is an Office incident to his Office , and in his power to grant ; and that Knowles , to whom the Queen had granted the same Office of Marshal of the Kings Bench , which she had by the Attainder of Thomas Duke of Norf. might be removed . And a President was shewed M. 14 and 15 Eliz. between Gawdy and Verney , where it is agreed , That the said Office was a several Office from the said great Office , and not incident to it ; And as to the Case of 39 H. 6. 33 & 34. the truth is , that the said Marshal of the Kings Bench was granted expresly to the Duke , and so he had it , not as incident to his Office of Marshal of England : On the other side were three Presidents shewed ; In the time of Edward 2. That the Office of Marshal of the Kings Bench was appendant to the said Office of Marshal of England . And 8 H. 2. when the said Great Office was in the King , he granted the said Office of Marshal of the Kings Bench : But 26 R. 2. both Offices were rejoyned by Parliament as they were in ancient time before ; and there was also shewed one Patent of 4 E. 4. and another of 19 H. 8. by which it appeared that the said inferiour Office had ever been part of the Grand Office ; Then it was moved , That when the said Office is in the Kings hands , and the King grants the said Vnder Office , If the same was for ever severed from the Grand Office. Wray Chief Iustice , It is a severance of it ; for the chief Office is an Office of Dignity , which remains in the King ; but the under Office is an Office of Necessity , and the King himself cannot execute it , wherefore of necessity he ought to grant it . Another matter was moved , Recital in Grants of the King. If the Grant of the King to the Earl of Shrewsbury was good , because in the Grant to Verney of the Vnder Office , it is not recited according to the Statute of 6 H. 8. cap. 9. As 20 Ass. 6. the King seized of the Honor of Pickering , to which a Forrest was appendant : The Bailywick of which Forrest he granted in Fee rendring Rent , and afterwards he granted the Honor with the Appurtenances , and afterwards the Baily committed a forfeiture , and the same was found in Eyre , for which the Office of Bailywick was forfeited ; the Grantee of the Honor seized it ; yet it was holden that the King should have the Rent : And here in this Case , the Earl of Shrewsbury shall have this Office in his power to grant it , and so much the rather , for that it was granted but for life .

Mich. 32 Eliz. In the Kings Bench. LXVI . Conies Case .

Roll. Abrig . 894. Sale of Goods by the Sheriff upon Execution , where good , where not . IN Debt ; It was holden , that if the Sheriff upon the Fieri facias makes sale of the Goods of the Party , and afterwards doth not return his Writ , yet the Sale is good : The Case went further : That upon the Fieri facias , the Sheriff returned , That he had seized Goods of the Party to such a value , Sed non invenit Emptores , and afterwards before sale of them , he is discharged , and afterwards a Distringas issued to the new Sheriff , to cause the ancient Sheriff to sell the said Goods ; who did so : It was holden , that the said sale of them was void , for the new Sheriff ought to have sold them : Vide 34 H. 6. 36. A Distringas to the old Sheriff to sell and deliver the Goods to the new Sheriff .

Mich. 19 Eliz. In the Common Pleas. LXVII .

NOte , by Dyer and Manwood , A. leaseth to B for years , Remainder where void . the remainder to the right Heirs of the said B. and makes Livery . That the remainder is void , because there is not any person in esse , who can take presently by the Livery , and every Livery ought to have its operation presently : But where a Lease is made to B. for life , the remainder to his right Heirs , there he hath a Fee executed ; and it shall not be in Abeyance , for there he takes the Freehold by the Livery .

Mich. 19 Eliz. In the Common Pleas. LXVIII . Hindes Case .

UPon an Habeas Corpus for one Hinde , Habeas Corpus . the Warden of the Fleet returned , That Hinde was committed to the said Prison by the commandment of the Commissioners in Causes Ecclesiastical . It was holden , that the Warden in his return , Cause of commitment , where must be returned , where not . ought to certifie the cause for which he was committed ; and then upon the return the Court ought to examine the cause if it be sufficient or not . But if one be committed to Prison , by the commandment of the Queens Privy Council , there the cause needs not to be shewed in the return , because it may concern the state of the Realm , which ought not to be published .

LXIX . Hil. 31 Eliz. In the Common Pleas.

IN a Writ of Dower the Demandant recovered by default ; Whereupon a Writ issued to Enquire , if the Husband died seised , and of the damages , and the Sheriff took an Enquest of Office , by which it was found , that the Baron did not die seised , prout eis constare poterit , and that Inquisition was returned by the Sheriff , and filed : It was moved , Return of the Sheriff , where void . That the said Inquisition and Office was not good , for the Office ought to find expresly , that the Husband died seised , or not ; and not doubtfully as it is here , prout eis constare poterit ; and for that cause the Award of the Court was , That the return should be taken off the File , because it was insufficient , and a new Writ was awarded .

Mich. 19 Eliz. In the Common Pleas. LXX . The Lord St. John and Sir John Grays Case .

Grants of Omnia bona , by an Executor , what passeth . NOte , by Dyer and Manwood , upon an Evidence unto a Iury , in Debt , brought against the Defendant , as Executor of his own wrong : That if an Executor gives omnia bona sua , the Goods which he hath as Executor shall not pass , which vide 10 E. 4. 1. by Danby ; But the contrary of that was holden by Wray Chief Iustice of the Kings Bench : And Plowden in the Case of Bracebridge , 18 Eliz. and they said that the said Case of 10 E. 4. was not Law ; for by such grant made by Executors the Goods of the Testator should pass .

Mich. 18 Eliz. In the Common Pleas. LXXI . Taylors Case .

Outlawry , how to be avoided . TAylor was Outlawed in debt , where a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent : It was holden , that the Party should avoid the same by Plea : Then it was moved , if the Plea should be pleaded by Attorney , or in Person , to which it was said by Manwood Iustice , that where Matter in Fact is pleaded in avoiding of an Outlawry , it ought to be pleaded in person ; but a matter of Record might be by Attorney . And so it was said by Ford Prothonotary , it was agreed in Sir Tho. Chamberlains Case , 7 Eliz. and so it was agreed in the Principal Case .

18 Eliz. In the Kings Bench. LXXII . Bettuans Case .

IN Ejectione firmae . The Case was , A Fine was levied to Cook and three others ; and by an Indenture between the Parties to the Fine it was declared , that the said Fine was levied ea intentione , That the Conusees should make an Estate of the said Land to such a person , which the Conusor should name , and in the end of the said Indenture was a Proviso , that the Conusees should not be seized to any other use , but to that which was specified before , and that the Conusees should not incumber the said Lands . And the Opinion of all the Iustices of the Kings Bench was , Fines levied to uses . That upon the said Indenture , the Conusees are seized to their own use until the Conusor hath made nomination ; and if he dieth without any nomination , then the use should vest in his Heir : It was further given in Evidence , that the Conusor named the said Cook one of the Conusees , and willed that the other three Conusees should release to him . Gawdy Iustice held , That that by nomination , the use did vest in Cook , for he said , it had been adjudged , that where before the Statute of 27 H. 8. One infeoffed divers persons to his use ; Feoffment to Uses . and the Feoffor willed that his Feoffees should make estate to such person as his Son and Heir should name , and died ; the Son and Heir named one of the Feoffees ; that the same was a good nomination , &c. Wray and Jefferies to the contrary ; for after this release Cook is in the whole by the Conusor , and not by his Co-Feoffees , and by this limitation the Conusor ought to name such a person which ought to take the estate : and so cannot one Ioyntenant from his Companion , &c. And also the words are so that they four shall take the estate .

14 Eliz. In the Kings Bench. LXXIII . The Bishop of Rochesters Case .

IN Ejectione firmae the Case upon Evidence was , Grant of a Reversion by a Bishop . Attornment . the Bishop of Rochester , 4 E. 6. made a lease for years to B. rendring rent , and afterwards granted the Reversion to C. for 99 years , rendring the ancient rent , Habend . from the day of the Lease without impeachment of waste , which Grant was confirmed by the Dean and Chapter : But B. the Lessee did not attorn ; and in default of Attornment it was holden by the whole Court , that the Lease was void , for it is made by way of Grant of the Reversion : But by Catlin , if the Bishop had granted the Reversion and also demised the Land for 99 years , it should pass as a Lease to begin first after the former Lease determined . And as to the Attornment , it was given in Evidence , that B. after the notice of the Grant to C. had speech with C. to have a new Lease from him , because he had then in his Lease but 8 years to come , but they could not agree upon the price : And the Iustices conceived that that was an Attornment , because he had admitted the said C to have power to make a new Lease : Also the said B. being in company with one R. and seeing the said C. coming towards him , said to the said R. See my Landlord meaning the said C. Bromely Solicitor , Attornment . the same is no Attornment being spoken to a stranger , Barham contrary , because he was present : It was holden by the whole Court that it was a good Attornment : But if the Attornment was not before the Bishop was translated to Winchester the Lease should be void ; and although the confirmation of the Dean & Chapter was before the Attornment , so as no estate was vested in C yet it was good enough : for the assent of the Dean and Chapter is sufficient , be it before or after , by Catlin , Southcoat , and Whiddar Iustices , but Wray held the contrary .

Pasc. 26 Eliz. In the Kings Bench. LXXIV . Russels Case .

Execution , where not good upon a Capias without a Scire Facias . RUssel was condemned in an Action of Debt , and after the year and day , the Plaintiff sued a Capias ad Satisfaciend . against him , and by force thereof he was taken , and committed to the Marshal , as in Execution : It was the Opinion of the Iustices that it was a void Execution , and not only voidable by Error , and therefore the Defendant was discharged ; for it is not any Execution at all ; and the Plaintiff may have a Scire facias when he pleaseth .

Pasc. 26 Eliz. In the Kings Bench. LXXV . Bluet and Cooks Case .

Action for Words . IN an Action upon the Case , the Plaintiff declared for scandalous words ; viz. Lambert . is a Thief , and Bluèt innuendo the Plaintiff , is his Partaker . It was the Opinion of the whole Court that the words were not actionable , because they were too general , for it may be that the Plaintiff is his Partaker in other Matters . But if the words had been . That Bluet , knowing Lambert to be a Thief , was his Partaker , there the Action would have lain . Iudgment was given against the Plaintiff .

Trin. 33 Eliz. In the Kings Bench. LXXVI . Hunt and Gonnels Case .

Bail. HUnt recovered in Debt against Gonnel , and procured against him a Capias ad Satisfaciend . upon which Non est inventus is returned , Execution , but the Writ is not filed . Hunt sued a Capias against the Mainpernors , who are taken in Execution : It was the Opinion of the Iustices , that they should avoid this Execution by Error , and not by Plea or Surmise , &c. But if the Capias returned against Gonnel had been filed , and after imbezelled . Quaere of the Error , for the Court conceived that the matter shall be examined , but Quaere to what intent . Wray said to punish the Deceit , but not to maintain the Execution against the Mainpernors .

Trin. 26 Eliz. In the Kings Bench , LXXVII . Saer and Blands Case .

SAer Parson of the Church of D. libelled in the Spiritual Court against Bland for Tythes ; Bland came to the Kings Bench and shewed , that within the said Parish of D. there is a Hamlet in which the said Bland inhabited , and the said Inhabitants within the said Hamlet , time out of mind , had had a Chappel of Ease within the said Hamlet , because the said Hamlet was distant from the Church of the said Parish , and with part of their Tythes have found a Clark to do Divine Service within the said Chappel , and also had paid a certain sum of money to Saer , Prohibition . Prescription . and his Predecessors for all manner of Tythes ; and prayed a Prohibition , and had it ; and it was holden a good Prescription .

LXXVIII . Pasc. 29 Eliz. In the Common Pleas.

A Copyholder with licence of the Lord made a Lease for years and afterwards surrendred the Reversion with the rent to the use of a Stranger , who is admitted accordingly . Attornment . It was moved if there needed any Attornment : It was the opinion of Rhodes and Windham Iustices , that the Surrender and Admittance ut supra , are in the nature of an Attornment , and so amount to an Attornment , or at least supply the want of it .

Mich. 29 Eliz. In the Star-Chamber . LXXIX . The Lady Newman and Shyriffes Case .

THe Lady Newman , Sister of James Wingfield , 3 Leon. 170. lately deceased , exhibited a Bill of Complaint in the Star Chamber , against one Shyriffe dwelling in Dublin in Ireland , and two others , complaining , That the said Shyriffe had forged a Deed , purporting that the said James had by that Deed given unto him all his Goods , and also that the said James had by that Deed assigned to the said Shyriffe a Lease for years of Lands in Ireland , and also the said Shyriffe had procured the two other Defendants to depose upon their Oaths before the Town-Clerk of London , That the said Deed was Sealed and Delivered by the said James as his Deed. It was moved by the Counsel of the Defendant , that these Matters of Forgery were not within the Statute of 5 Eliz. nor also the Perjury , or the procurement thereof , upon which the Lords of the Council there , Upon the Statute of 5 Eliz. of Perjury . referred the consideration of the said Statute to both the Chief Iustices : who at the next day in Court declared their Opinions upon the said Matters , i. e That the said Matters did not extend to the Forgery of a Deed containing a gift of Chattels personals , which see clearly by the Statute which as to that purpose extends but to Obligations , Bills Obligatorie , Acquittances , Releases or other Discharges , and that also a Deed of Assignment of a Lease of Lands in Ireland is not within the said Statute ; and also they were of opinion , that the said Perjury , and the procurement of it was not punishable by the said Statute , because the Oath was taken coram non Judice , for the Town-Clerk of London could not take an Oath in such a case , Note . no more than a private person . But because that the Bill in the perclose and conclusion of it was , ( contrary to the Laws and Statutes of this Realm ) the two Chief Iustices were of Opinion , That the said Court might punish these Offences as Misdemeanors at the Common Law , but not according to the Statute ; and afterwards Shyriffe was fined , and by Order of the Court to stand upon the Pillory .

Mich. 29 Eliz. In the Exchequer Chamber . LXXX . The Queen and Lord Vauxes Case .

Bills . IN the Exchequer Chamber before the Chancellor , &c. the Lord Vaux brought a Writ of Error upon a Iudgment given against him in the Court of Exchequer , and assigned for Error that a Bill was exhibited against him , that the Lord Vaux had taken certain goods of the Queen at Westminster in the County of Middlesex , and also had intruded into the Rectory of Ethelborough in the County of Northampton ; whereas the Queen ought to have brought several Bills being for several causes , arising within several Counties . But it was resolved by the whole Court , That the Bill of the Queen was good enough , and here is no mischief ; for if the Defendant will plead Not Guilty , two several Venire Facias shall be awarded , one into Middlesex , the other into the County of Northampton .

Mich. 27 Eliz. In the Common Pleas. LXXXI . Owen and Morgans Case .

GEorge Owen brought a Scire Facias against Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conusee and his heirs ; the Conusee rendred the same to the husband and wife , and to the heirs of the body of the husband , ( Note that the husband was the Conusor ) the remainder in Fee to the now Demandant ; and note that the Writ of Covenant was between the Conusee Plaintiff and the husband Deforceant , without naming the wife . And afterwards the husband suffered a common Recovery without naming of the wife ; Common Recovery . the hushand and wife died without Issue , and now Owen , to whom the remainder was limited by the Fine , brought a Scire Facias ; in bar of which the Recovery was pleaded . It was argued by Shuttleworth Serjeant , That the said Recovery had against the husband was a good bar , Feme not party to the Writ of Covenant not bound by a Recovery . and should bar the remainder ; and the wife ought not to be named in , or party to the Recovery , for that nothing accrued to her by the Fine , because she was not party to the Writ of Covenant , and to the Conusans , vide 32 H. 8. Fines 108. None can take by the Fine but those who are named in the Writ of Covenant , but every Stranger may take by way of Remainder , Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is said by Herle , if such a Fine ut supra be taken , it is good as long as it is in force .

LXXXII . Sir Richard Lee and Arnolds Case . Post 93.

SIr Richard Lee Kt. seized of three Manors , made a lease of them to Sir Nicholas Arnold for certain years , reserving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the said rents , or any of them , or any part , &c. be behind , a re-entry into all the Manors ; and afterwards he bargained and sold the reversion of one of the said Manors to William Winter in Fee : and afterwards by Deed indented and inrolled , bargained and sold the two other Manors , and for the rent of one of the said Manors , the Vendee did re-enter into all the Manors . Manwood , Here are several reservations , Reservation of Rents upon a joynt Lease . several rents , and several leases ; for although that the words are joynt , yet by construction they are become several ; as Land given to an Abbot and a Secular man , although here be joynt words , yet they are Tenants in Common , Litt. 296. And if I sell to you two Horses , the one for 5 l. and the other for 5 l. here are two several contracts ; the Parties to whom these reversions are assured , ut supra , are Assignees within the Statute of 32 H. 8. by which it is enacted , that Assignees may take advantage of Conditions ; for such an Assignee is not meerly in by act of law , as the Lord by Escheat , and he is not such an Assignee ; but is in by conveyance : The Lessor enters upon his Lessee , Assigns . and makes his Feoffment , and the Lessee re-enters , now the Feoffee is an Assignee ; and this condition is destroyed in part and continued in part : Condition destroyed in part good in part . If one hath Common in the land of another for 20 beasts , and releases his Common for 10 beasts , the Common for the residue remains ; but if he purchaseth part of the land in which he hath Common , the whole Common is destroyed : A Feoffment to two with warranty , and one of them releases the warranty , all the warranty is gone : As to the condition for as much as it is not collateral , but incident to the reversion , it may be severed and is of the same nature as the rent and reversion . A man possessed of lands for 20 years , and seized of other lands in Fee , Conditions divided . leaseth all the land for 10 years , reserving rent , with clause of re-entry , and dieth , now the Heir hath a reversion for the land in fee , and the executor for the other land , & so the condition is divided according to the reversion ; so if lands were given to one in general tail and others in special tail & he thereof makes a lease rendring rent , and dieth , having several Issues inheritable to each tail , now the condition shall go according to the rent : and he conceived , that the Grantee of parcel of the reversion is an Assignee within the said Statute , Grantee of parcel of the Reversion is an Assignee within 32 H. 8. Of Conditions . as if a Lease for years be made rendring rent , with clause of re-entry . The Lessor grants the Reversion for life , such a Grantee is an Assignee within the said Statute . Jefferies , The Condition is gone : A. leaseth two Acres for years , rendring rent with clause of re-entry : the Lessor accepts a surrender of one Acre , the whole Condition is gone , but the rent shall be apportioned . A Parson leaseth land , whereof he is seized in his own right , and land whereof he is seized in the right of his Church , for years rendring rent , with clause of re-entry , and dieth , the rent shall go according to his respective capacity and the Condition divided : Condition ap●●●●●●ned . So if part of the land so demised be evicted , the Rent shall be apportioned , and the Condition also : And he said that the Bargainee is not an Assignee within the Statute . Barham , If the Reservation doth not make the lease several , yet it shall make the Reversion several , &c. Mead , 6 Eliz. The Court was moved in this Case : A. leased for years rendring rent , with clause of re-entry , and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reversion in Execution ; Condition suspended . and the clear Opinion of the Court was , that the Condition was suspended : If A. let lands for years rendring rent , with clause of re-entry to a Man and to a Feme sole , and afterwards the Lessor intermarries with the Feme , the Condition is suspended . Mounson Iustice , The Demise is joynt , although that the Reservation be several . Cestuy que use is seized of an Acre in possession , and of another in reversion , and makes a Lease for years of both rendring rent , Severance . here are several rents . 13 E. 3. A. seized of two Acres of lands before the Statute of Westminster 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage ; the Tenancy in such case is several , 9 Ass. 24. a lease is made of a Mill. and of a Wood , rendring for the Mill 10 s and for the Wood 20 s. these are several rents : and so here they are several rents and several conditions : Two Tenants in Common make a lease for years rendring rent upon clause of re-entry , the condition is several according to the reversion , for joynt words in the Letter have sometimes as the matter requires constructions in the severalty . As A and B covenant by Indenture , and are reciprocally bound the one to the other to perform all Covenants contained in the said Indenture , the same is to be construed such Covenants , which on the part of A. are to be performed , and so of the other part B. And he conceived that by the distracting of the reversion the condition was gone : a condition by an act in law may be divided but not by the act of the party . Conditions by act in Law divided not by act of the Party . As a man makes a lease for years rendring rent , with clause of re-entry , takes a Wife and dyeth ; The Wife recovers the third part of the land devised for her Dower , now that third part is discharged of the condition during the estate in Dower , but the residue is subject to the condition ; and vide F. N. B. 21 the Heir at Common Law shall have a writ of Error for his part ; and the Heir in Borough English for his part : two Ioyntenants make a lease for life upon condition and one releaseth the condition , Statute of 32 H. 8. of Conditions taken by Equity . the same barred the condition . And he conceived that the Bargainee is an Assignee : for the Statute of 32 H. 8. shall be taken by Equity , &c. As if a man leaseth lands for years to begin at Michaelmas next , and before Michaelmas he makes a Feoffment , and at Mich. the Lessee enters , the Feoffee is an Assignee within the Statute : two Ioyntenants make a lease for years rendring rent with clause of re-entry , and the one releaseth to his companion , he is an Assignee within the Statute . Manwood , He is an Assignee and in by the Bargainor ; The words of the Statute of 32 H. 8. are , Grantees or Assignees to or by any Person or Persons , and here the Bargainee is an Assignee to the Bargainor as to the use ; and for the possession he is an Assignee by him : He who is in by a common recovery is not an Assignee , although the recovery was to his use , for the Writ disaffirms his possession : if Tenant for llfe be disseised and he in the reversion confirms the estate of the Disseisor , and the Tenant for life re-enters , the Disseisor is now an Assignee , but otherwise it is if he in the reversion doth release to the Disseisor : and he conceived , that the Lessor should recover part of the land in an action of Waste , or enter in part of the land for a forfeiture , for an alienation in fee , that the condition remains . Harper , Several reservations do not make several leases , for the reservation is not of the essence of the lease , for it is good without any reservation : and whereas it hath been said , that a Lease is a contract , I say , Difference between a Reservation and a Contract . that there is a great diversity between a reservation and a contract : for if I sell to you a Horse for 40 s. and afterwards I take this Horse out of your possession ; yet I shall have an action of Debt for the 40 s. But if I lease land to you reserving rent , and afterwards enter into parcel of the land demised , I shall not have the rent : and if I lease two Acres for years with several reservations , I shall have but one action of waste , but several Avowries according to the several reservations . And here if any part of any of the said rents be behind , the party may re-enter into the whole , therefore the lease is but una & eadem . And I conceive , that the Assignee of the Assignee is by the Statute to take advantage of the condition even to the twentieth degree , as a warranty to one of his Heirs and Assigns , extendeth to the twentieth Assignee . But here in our case , he is not such an Assignee that shall take advantage , &c. for he is in by the Statute , scil. in the Post , but not in the Per , and here the Bargainee hath but an use by the act of the Party , and the possession of the Statute of 27 H. 8. But admitting that he is an Assignee , yet he is an Assignee but of part , and therefore shall not have advantage , Condition suspended in part is suspended in all . &c. When a condition is suspended in part , it is suspended in all . A. leaseth lands for years upon condition , and afterwards the lessor confirms his Estate in part for life , the condition is gone . Dyer , The Lease is one and entire , although there be several reservations , for here are not several capacities , nor several interests . 42 Ass. Two Ioyntenants lease for life , rendring rent to one of them , yet the rent and reversion shall be to both of them ; but if it be by Deed indented , the rent shall go to one only , according to the literal reservation , Vide Litt. 80. 346. But if the Lease had been made by several Limitations , as Habendum one Manor for 20 s. and the other Manor for 10 s. then the Lease and the Reversion had been several ; but here the rent shall not rule the reversion , but the reversion the rent , and the rent shall be of the same nature as the reversion . Tenant for life makes a Feoffment in Fee upon condition , and re-enters for the condition broken , now by that re-entry the Freehold is reduced to the Lessee for life , and the Fee unto the Lessor ; but the Forfeiture remains . Two Ioyntenants , one of them makes a Feoffment in Fee of his Moiety upon condition , and for the breach of the condition re-enters , the Ioynt Estate is revived : And he conceived that the Grantee of part of the Estate , or part of the Land should not take advantage of the condition ; and he said that the Bargainor is an Assignee within the Statute : If Tenant in Tail makes a Lease for years , and afterwards bargains and sells the reversion , the Vendee hath a Fee simple determinable , and may enter for the condition broken : If a reversion be granted to two , and to the Heirs of one of them , they are Assignees within the Statute , and if he , who hath but an estate for life , surviveth , he also is an Assignee , for the entire reversion passeth out of the Grantor , and that is my Rule . Iudgment was given against the Re-entry .

LXXXIII . Pasc. 30 Eliz. In the Kings Bench.

Surrender . LEssee for 21 years took a Lease of the same Lands for 40 years to begin immediately after the death of J. S. It was holden in this case , that the same was not any present Surrender of the first term ; but if J. S. dye within the term , then it is a Surrender , for it may be that J. S. shall survive the first term .

Pasc. 30 Eliz. In the Kings Bench. LXXXIV . Anderson and Heywoods Case .

Copyholder . A Copyholder of an Inheritance of a Manor which is in the hands of the King is ousted of his Copyhold . It was holden that he hath not gained any Estate , so as he may make a lease for years , upon which the Lessee may maintain Ejectione firmae ; but he hath but a possession against all Strangers : And it was holden in this case , that if a Copyholder dyeth , 1 Leon. 100. Rumny and Eves . his heir within age , he is not bound to come to any Court during his Nonage , to pray admittance , or to tender his Fine ; also if the death of his Ancestor be not presented , nor proclamations made , he is not at any mischief , although he be at full age .

Pasc. 30 Eliz. In the Kings Bench. LXXXV . Cook and Songates Case .

IN Assumpsit , Assumpsit . the Plaintiff declared whereas Lis & controversia had been moved between the Plaintiff Lord of the Manor , &c. and the Defendant , claiming certain Lands parcel of the said Manor , to hold the same by Copy , &c. And both the said parties submitted themselves to the Iudgment and Arbitrement of Mr. Godfrey , a man learned in the Law. concerning the said Land , and the title of the Defendant to the same : The Defendant in consideration that the Plaintiff promised to the Defendant , that if the said Mr. Godfrey should adjudge the said Copy to be good and sufficient for the title of the Defendant , that then he would suffer the said Defendant to enjoy the said Land accordingly without molestation , the Defendant reciprocally promised to the Plaintiff that if the said Mr. Godfrey should adjudge the said Copy not to be sufficient to maintain the title of the Defendant , that then he would deliver and surrender the possession of the Land to the Plaintiff without any Suit. And shewed further that the said Mr. Godfrey did award the said Copy utterly to be insufficient , &c. Yet the Defendant continued the possession of the said Land : It was moved that the same was not a good and sufficient consideration to ground an Assumpsit . But Gawdy Iustice , said it was a good and sufficient consideration , because it was to avoid Controversies and Suits : And afterwards Iudgment was given for the Plaintiff .

Trin. 26 Eliz. In the Kings Bench , LXXXVI . Taylors Case .

IN Assumpsit , the Case was : Assumpsit . That the Defendant promised to carry certain Apples for the Plaintiff by Boat from Greenwich , in the County of Kent , to London ; and the Apples being in the Boat , the Boat in which they were , by a great and violent Tempest was sunk in the River of Thames , so as the said Apples perished , &c. It was holden to be no Plea in discharge of the Assumpsit , by which the Plaintiff had subjected himself to all adventures .

LXXXVII . Trin. 26 Eliz. In the Kings Bench.

Devise . A. Seized of Lands in Fee , and having Issue two Sons , Richard and Gilbert , by his Will willed , That if his Son Richard dye before Issue , so that the Land descend to my Son Gilbert , then I will that my Overseers shall have the Government of my Lands and of my Son Gilbert . Richard took a wife and dyed , she being young with Child with a Daughter , the Devisor died , the Daughter was born . It was adjudged in this Case , that by this Devise the Daughter was excluded from the Inheritance , and that Gilbert should have the Land .

Trin. 32 Eliz. In the Kings Bench. LXXXVIII . Lukes Case .

LUke Esq of Tedcaster , was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vsurious Contract ; for which he encurred a Praemunire . Who pleaded Not Guilty , upon which they were at Issue , and at the day of the Return of the Distringas , the Iurors appeared , and the same day that the Iury was to be taken , Popham Attorney General sent for the Distringas , and for certain causes for the Queen , would not proceed . Note that the Attorney was informed , that the Iury was partial . It was moved by Cook that the Attorney could not stay the Proceedings , the Writ being returned , and the Iury appearing , he could not stay the Tryal , for no President is thereof . Popham , The Entry shall be in this case . Vicecomes non misit breve . Cook , That is false , and the Sheriff is sworn to make a true return ; but by consent of the Parties , such a thing may be done , for Consensus tollit Errorem , Quaere .

33 Eliz. In the Exchequer . LXXXIX . The Queen and Painters Case .

Accompt of the King against a Stranger . SIr William Pelham was Surveyor of the Ordnance , and delivered the money of the King to Painter , Clerk of the Ordnance . It was holden in this case , That for the said money the Queen might have Accompt against Painter , although he wanted a privity , which cannot be so in case of a common person ; for if any Receiver make one his Deputy , I shall not have an Accompt against him . Popham Attorney General , If one of the Exchequer lend unto another 500 l. of the Queens money , and takes a Bond for it in his own name , yet the Queen shall have an Accompt against the Borrower .

Mich. 29 Eliz. In the Exchequer . XC . Pelhams Case .

IN the Exchequer Chamber , before the Chancellor , Treasurer , Savile Rep 43. Grant of Office of Sheriff . and Barons there , in the Case of Pelham , the Case was , That the Queen had granted by her Letters Patents , that Pelham should not be Bailiff , Constable , nor other Officer or Minister , Licet eligatur ; yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal , as Grants of Amercements do not extend to Amercements Royal ; and also the Office of Sheriff doth not lye in Election ; but if the words had been , Licet eligatur per nos , then it should have been otherwise : And such was the Opinion of Bromley then Lord Chancellor .

Trin. 19 Eliz. In the Kings Bench , XCI . Godbolts Case .

IN the Case of one Godbolt , It was agreed , Sales ▪ that the sale of a Bailywick of a Hundred , was not within the Statute of 5 E. 6. cap. 16. For such an Office doth not concern the Administration of Iustice ; nor is it an Office of Trust .

XCII . In Temps Eliz.

A. Granted to B. a Rent-charge out of his Lands , to begin when J. S. died without Issue of his Body , J. S. dyes having Issue , which Issue dyes without Issue . Dyer held that the Grant shall not take effect , for J. S. at the time of his death had Issue , and therefore from thence the Grant shall not begin , and if not then , then not at all . And Manwood said , that if the words had been , to begin when J. S. is dead without Issue of his Body then such a Grant shall take effect when the Issue of J. S. dies without Issue , &c. If Donee in Tail hath Issue which dies without Issue , the Formedon in the Reverter shall suppose that the Donee himself died without Issue , for there is an Interest , Difference between an Interest and a Limitation . and there is a diversity between an Interest and a Limitation ; for if I give Land between A. and B. for term of their lives , if any of them dye , the Survivor shall hold the whole ; but if I give Lands to A. for the lives of B. and C. now if B. and C dye , the whole Estate is determined , because it is but a Limitation , and B. and C. have not any Interest . Vide to this purpose 34 Eliz. Brudnels Case in Cook 5. p. 9.

XCIII . Temps Roign Eliz. In the Common Pleas.

A. Seized of a Manor , leased the same for years , rendring rent , with clause of re-entry ; and afterwards levied a Fine Sur Conusans de droit , &c. to the use of himself and his Heirs the rent being demanded is behind . Dyer , A. cannot re-enter , for although the rent in right passeth without Attornment , yet he is without remedy for the same without Attornment , and it would be hard without Attornment to re-enter ; It was here moved further , if the Conusor be an Assignee within the Statute of 32 H. 8. Manwood , The reversion of a Termor is granted by Fine , there wants Privity for an Action of Debt , Waste and Re entries : But if the Conusee dieth without Heir , although that in right it was in the Conusee , yet the Lord by Escheat shall make Avowry , and yet the Conusee by whom he claims could not : And in the Case at Bar , the Conusee himself could not ; but the Conusor being Cestuy que use , who is in by Act of Law , shall Avow , and re-enter without Attornment , for the Conusor is in by the Statute of 20 H. 8. Harper , The Heir of the Conusee shall Avow and re-enter before Attornment . Dyer , 13 H. 4. The Father leaseth for years rendring rent , with clause of re-entry , the Father demands the rent which is not paid , the Father dyeth , the Son cannot re-enter , for the rent doth not belong unto him ; and therefore in the Case at Bar , the Conusor cannot Avow for the rent before Attornment , therefore not re-enter : And in Case of Bargain and Sale , the Bargainee is Assignee within the Statute , but not the Conusor in this Case .

Temps Roign Eliz. XCIV . 15 Eliz. Sir Francis Leak and Sir Walter Hollis .

Upon Attainder of Treason , who shall seize the Goods for the Queen . AT the Assizes , the Opinion of Dyer and Stamford was demanded upon this matter : One seized of Lands and Tenements , and possessed of Goods within the Duchy of Lancaster , was Attainted of High Treason , and a great Question arose between Sir Francis Lake Kt. Bailiff of the Duchy , and Sir Walter Hollis Sheriff , which of them ought to seize for the Queen ; and their Opinion then was , that the same did appertain to the Office of the Sheriff , if in the Patent of the Sheriff there were not special words to the contrary .

XCV . 15 Eliz. In the Common Pleas.

TEnant at Will made a Lease from year to year , Lease by Tenant at Will if a Disseisin . Dyer conceived that it was not a Disseisin but the Lease was void ; and he said , that the Book of 12 E. 4. 12. was not Law. For he who disseiseth a man ought to claim Inheritance in the land , whereof the disseisin is done . Harper conceived that the said Book of 12 E 4. 12. was good Law , for a Lease at Will is a Lease at the will of both parties , and therefore when the Lessee makes a Lease for years , his will is determined , and he will not hold at will . Manwood agreed with Dyer ; for if Tenant at Will lease for years , rendring rent , before that the Lessee for years entreth , the Tenant at Will shall not have any rent for it was not a perfect contract ; otherwise it is where a man seized of Lands leaseth the same , ut supra . If one entreth into my land , and occupieth the same of his own head , claiming to hold the same at my will , and afterwards I demand of him a certain rent for the occupation of my land , he is now my Tenant at Will ; which all the Iustices granted .

Mich. 30 Eliz. In the Kings Bench. XCVI . Cutter and Dixwels Case .

ACtion upon the Case , for that the Defendant exhibited a Bill to the Iustices of Peace against the Plaintiff , containing and complaining , That the Plaintiff is an enemy to all quietness , seeking by all means to disquiet his neighbours , and hath used himself as a lawless person , and having Process to serve upon one in the Parish , ( scil. J. S. ) did keep the Process , and would not serve it but on the Sunday in the time of divine Service , not having regard to her Majesties laws or the quiet of his neighbors . Vpon which Bill the Iustices to whom it was exhibited awarded Process against the Plaintiff to find Sureties for his good behaviour , by virtue of which he was taken and imprisoned . It was the Opinion of all the Iustices in this Case , that upon this Matter , an Action upon the Case would not lie .

Mich. 27 Eliz. In the Kings Bench. XCVII . Baspoles Case .

THe Father seized of Lands is bound in an Obligation , 3 Leon. 118. 2 Leon. 10 1. Stiles 148 Devise to his Son and Heir . and devised his Land to his Wife until his Son shall come to the age of 21 years , the remainder to the Son in Fee ; and no other Land descends to the Son from his Father . It was moved , that the Heir in this case at his Election might wave the Devise , and take by descent , or è contra , Vide 9 E. 4. 18. per Needham . It was the Opinion of Gawdy and Fenner Iustices , that the Son should be adjudged in by descent : Clench held the contrary .

Mich. 27 Eliz. In the Kings Bench. XCVIII . Onions Case .

IN an Action upon the Statute of 5 Eliz. for hunting in his Park , the Statute gives treble damages : It was the Opinion of the Iustices , that notwithstanding that the Statute gives treble damages , Costs . that the Plaintiff should have Costs also .

XCIX . Mich. 27 Eliz. In the Kings Bench.

IN Debt the Plaintiff had Iudgment to recover , and a Scire Facias issued against the Bail before any Capias issued against the Principal , Bail. and the Bail was taken ; and now they came and shewed this matter to the Court , and prayed to be discharged . Wray Iustice said , They shall be put to their writ of Error , for being but Error in Process , we may reverse our own Iudgment .

C. Mich. 14 Eliz In the Common Pleas.

A Man seized of a Pasture , within which are two great Groves and Wood , known by the name of a Wood , leased the same by Indenture for years , and also in the same Pasture were certain Hedgrows and Trees there growing sparsim , & by the same Indenture bargained and sold to the Lessee all Woods and Vnderwoods in and upon the Premisses ; and further , that it shall and may be lawful to the Lessee to cut down and carry away the same at all times during the term . Harper said the Hedg-rows did not pass by these words , for they are not known by the name of Woods , 14 H. 8. 2. Manwood held the contrary . Mounson contrary to Manwood for the words of the Grant may be supplied by other in it , viz. Woods . Dyer held that these Hedgrows should pass , for the Grant is general . It was further moved , if by these words the Lessee might again cut them &c. or but once . Harper , Manwood and Mounson , three of the Iustices held . That he might cut them but once . But Dyer held the contrary & said so it should be , if the words had been ( growing upon the Premisses ) and this word ( growing ) although it sounds in the present tense yet it shall be taken also in the future tense : if not that the word tunc be laid , for that is a word of restraint . The case which was argued in the Chancery , 27 H. 8. where I was present , was this , The Prior of St. Johns let a Commandry ; Provided that if the said Prior , or any of his Brethren there being Commanders , will dwell thereupon , then the said Lease to be void . And it was doubted if that Proviso did extend to the Successor ; for this word ( being ) in the present tense , and yet it was holden by Fitzherbert , that it should be taken in the future tense , and so to extend to the Successor , but otherwise if the words had been ( nunc ) being .

15 Eliz. In the Common Pleas. CI. Conies Case .

A Man seized of Lands in Fee devised , Devises . that his wife should take the profits of his Lands , until Mary his daughter and Heir should come to the age of sixteen years ; and if the said Mary died , that J.S. should be his Heir . Manwood said , Tail. That the daughter , after she had attained the age of sixteen years , should have the Lands in Tail , for Devises shall be construed , according to the interest of the Devisor ; if they have any certainty or reason ; but no intent shall be taken against reason and certainty . It is certain the daughter shall not have Fee-simple , for that should have descended to her without any Devise ; and these words ( if she dye ) cannot be intended a condition , for it is certain that she shall dye ; but if the words had been , If she dye before the age of sixteen years , J. S. should be his Heir , that had been a condition ; and if the words had been , That after the death of Mary , J. S. should be his Heir : So as the Estate Tail remains in the daughter . Mounson and Harper contrary . And that she shall have but for life ; Mounson said , That if Mary had been a Stranger to the Devisor , she had taken nothing : Devisee , who shall first take . And this case was put by Barham Serjeant , A man devised 100 l. to his youngest daughter , and 100 l. to his middle daughter , and 100 l. to his eldest daughter , and that all these sums should be levied of the Profits of his Lands , It was holden by the better Opinion , that the youngest daughter should be first paid , and then the middle , and then the eldest daughter , &c. and that he said was Conies Case .

CII . 6 Eliz. In the Common Pleas.

A Man made a Lease for life , and afterwards made a Lease to another for years to begin after the death of the Tenant for life : the Lessee for years died intestate , the Ordinary committed Letters of Administration to A. the Tenant for life and A. joyned in the Purchase of the Fee-simple of the Land demised ; It was holden by the Iustices in this Case , that the Fee was executed for one Moiety , for the remainder for years , Estate executed . was not any impediment to the execution of it . Manwood conceived that the Term was not extinct , for the same is not properly a term , Extinguishment . but only an Interest of a Term , which cannot be surrendred . Mounson , He hath the Term in auter droit as Administrator , and therefore it cannot be extinct . Dyer , If an Executor hath a Term , and purchaseth the Fee-simple , the Term is determined . A woman Termor for years takes Husband , who purchaseth the Fee , the Term is extinct by Manwood , for the Husband hath done an act , which destroys the Term , scil. the Purchase . But if a woman being a Termor , marrieth with him in the Remainder , the Term continueth ; for here it is not the act of the Husband , but the act of Law. It was the Opinion of Dyer , Tenants in Common . that in this case the Tenant for Life and the Administrators should be Tenants in Common of the Fee.

CIII . Mich. 17 Eliz. In the Common Pleas.

THe husband is seized in right of his wife of certain customary lands in Fee , and he and his wife , by licence of the Lord make a Lease for years by Indenture , rendring rent , have Issue two daughters , and the husband dyeth the wife takes another husband , and they have Issue a son and a daughter , the husband and wife dye , the son is admitted to the Reversion , and dyeth without Issue ; and by Manwood , that Reversion shall descend to all the daughters , notwithstanding the half blood , for the Estate for years which is made by Indenture by license of the Lord is a demise , and a Lease according to the order of the Common Law , and according to the nature of the demise the Possession shall be adjudged , which possession cannot be said possession of the Copyholder , for his possession is customary , and the other is meer contrary , therefore the possession of the one shall not be the possession of the other , therefore there shall be no Possessio Fratris in this case : Possesso Fratris . But if one had been the Guardian by custom , or the Lease had been made by Surrender , there the Sister of the half blood should not inherit . And Mead said the Case of the Guardian had been adjudged . Mounson agreed : And it was said , that if a Copyhold doth descend to the Son , he is not a Copyholder before admittance , but he may take the profits , and punish a Trespass before admittance .

CIV . Pasc. 19 Eliz. In the Common Pleas.

A Parson let his Rectory for three years , and covenanted , that the Lessee shall have and enjoy it during the said term , without expulsion , or any thing done or to be done by the Lessor , and is also bound in an Obligation to the Lessee to perform the said Covenant . Forfeiture . Quaere . Afterwards for not reading of the Articles he was deprived ipso facto , by the Statute of 13 Eliz. The Patron presented another , who being inducted ousted the Lessee ; wherefore an Action was brought upon the Obligation . It was the Opinion of all the Iustices , That this matter is not any cause of Action ; for the Lessee was not ousted by any Act done by the Lessor , but rather for Non feasans ; and so out of the compass of the Covenant aforesaid ; as if a man be bound that he shall not do any waste , permissive waste is not within the danger of it .

Pasc. 26 Eliz. In the Common Pleas. CV . King and Cottons Case .

IN Ejectione firmae , the Case was : Lessee for years , the Remainder for life , the Remainder in Tail to Lessee for years , Lessee for years made a Feoffment in Fee with warranty , and dyed , he in the Remainder for life dyed , the Issue in Tail entred , and made a Lease to the Plaintiff . It was clearly resolved by the Court in this Case , Entre Congeable . That the entry of the Issue in Tail was lawful , notwithstanding that the disseisin was done to another Estate than that which was to be bound by the warranty , scil. to the Estate for life , Vide 50 E. 3. 12 ▪ & 13 , 46 E. 3. 6. Fitz. Garr. 28.

Pasc. 26 Eliz. In the Common Pleas. CVI. Scot and Scots Case .

BArtholomew Scot brought a Writ of Accompt against Thomas Scot : Accompt . Thomas Scot sum' fuit ad respondend . Barth . Scot quod reddat ei rationabilem computum suum de tempore quo fuit receptor denariorum , &c. And declared quod cum the said Thomas Scot fuit receptor denariorum , &c. & recepisset , so much by the hands of such a one , &c. Cumque idem Thomas habuisset & recepi●●et diversa bona . and shewed what , ad merchandizand . &c. Exception was taken to the Declaration , because the Writ and Declaration is general against the Defendant as Receiver , whereas for such goods as the Defendant had received ad merchandizand . he ought to have been charged as Bayliff , Quod Curia concessit , Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traversed severally both the Charges , whereupon several Issues were joyned , and both found for the Plaintiff : And as to the monies , with the Receipt of which he was charged as Receiver , the Plaintiff had Iudgment ; and as to the others , Abatement of Writ . which he received ad Merchandizandum , the Writ abated . And it was said by the Court , That the Writ should have abated in the whole , unless the several Issues had helped the matter , because the Plaintiff might have had an Action for part in other manner , Vide 9 H. 7. 4. by Brian .

17 Eliz. In the Star-Chamber . CVII . Morgan and Coxes Case .

MOrgan exhibited a Bill of Perjury in the Star-Chamber , against one Cox , setting forth , that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench , and he in discharge of the said Recognizance had obtained a Writ De Fama & gestu , to enquire of his Conversation , and therefore at the Sessions in the County of Devon , where the said Morgan was dwelling , the grand Iury charged with the said Matter , the said Cox gave Evidence to the said grand Iury in maintenance and continuance of the said Recognizance , and upon the Evidence given by Cox the said Bill was conceived . It was moved by the Counsel of the Defendant , That that Bill upon the matter did not lye , for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance , and that to the grand Iury which was charged for the Queen : But as to that it was said , by the Lord Chancellor and both the Chief Iustices , that the Writ De fama & gestu , Brief de Fama & gestu . is an especial Writ at the Suit of the Party , and not of the Queen , and the Court cannot deny it to him who asketh it ; and the grand Iury , as to that matter , shall be accounted a special Iury , &c.

Mich. 16 Eliz In the Common Pleas. CVIII . Jackson and Darcys Case .

Tail barred by a Fine . 3 Leon. 57. IN a Writ of Partition betwixt Jackson and Darcy , the Case was , Tenant in Tail , the Remainder to the King , levied a Fine , had Issue and dyed , it was adjudged that the Issue was barred , and yet the Remainder to the Queen was not discontinued ; for by the Fine an Estate in Fee-simple determinable upon the Estate in Tail , passed to the Conusee .

Trin. 17 Eliz. In the Common Pleas. CIX . Stroads Case .

Tenures . IN a Replevin , the Case was , Lands holden of a Subject came to the possession of the King by the Statute of 1 E. 6. of Chauntries . The King granted the Lands over unto another : it was holden in this Case that the Patentee should hold of the King according to his Patent , and not of the ancient Lord ; but the Patentee should pay the rent , by which the said Land was before holden , as a Rent-seck distrainable of Common right to the Lord and his Heirs , of whom the Land was before holden .

CX . Mich. 19 Eliz. In the Common Pleas.

A. Seized of Lands in Fee devised them to his Wife for life , and after her decease , Estate . she to give the same to whom she will : He had Issue two daughters , and died ; Devises . Leon. 121● the wife granted the Reversion to a Stranger and committed waste , and the two daughters brought an Action of waste . In this Case it was holden , that by that Devise the wife had but an Estate for life , but she had also an authority of giving the Reversion by her Will to whom she pleased ; and such a Grantee shall be in by A. and his Will ; for A. hath given expresly to his wife for life , and therefore by Implication she shall not have any further Estate : But if an express Estate had not been appointed to the wife ; by the other words an Estate in Fee should have passed .

Mich. 19 Eliz. In the Common Pleas. CXI . Sir Thomas Kemp and Windsors Case .

SIr Thomas Kemp was outlawed at the Suit of one Windsor , who had against him four Capias utlagat' , and none of them were served , and afterwards he sued out a fifth Capias : It was moved by Mead , that the said Sir Thomas keepeth open House , and yet the Sheriff had not served the Capias . Dyer , The Sheriff may justifie to break the House to take his body , and seize his Goods for the Queen , for this Process is in Law at the Suit of the Queen ; but contrary where the Process is sued at the Suit of a Subject : And the Iustices commanded Ford Prothonotary to make a special Capias for Body and Goods ; and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly .

CXII . Mich. 19 Eliz. In the Common Pleas.

THis Case was moved by Anderson Serjeant at Law , Improvement of Common . if in case of Common appurtenant by Prescription without number , the Lord of the waste might improve , for it is not admeasurable , therefore not improveable , for the Common being without number , the sufficiency cannot be proved . Dyer and Manwood Iustices , although it be without number , yet it may be reduced to a certainty being by Prescription ; as the number of the Cattel , and the best and most substantial Tenant of the said Tenement at any time within time of memory had kept upon the said waste , and then the Plaintiff the Lord might improve leaving sufficient , according to such Rate .

Mich. 19 Eliz. In the Common Pleas. CXIII . The Earl of Derbys Case .

Debt not against the Husband upon a Contract by the Wife . DEbt by a Merchant of London against the Earl of Derby and his Wife , and declared upon a Contract for Silks , and it appeared upon the Evidence , that the Countess during the Coverture had bought of the Plaintiff certain Silks for her own wearing ; and for the mony , which the Countess agreed to pay for the same , the Action was brought . It was the Opinion of Dyer , Manwood , and Mounion , that the contract by the Wife , during the Coverture , should not bind the Husband ; but admit that the Husband should be bound yet this Action is not well brought against the Wife , for she ought not to be mentioned in the Writ .

CXIV . Mich. 19 Eliz. In the Kings Bench.

Indictments . ONe was indicted in the Country , because he commanded J.S. to take up a Bridge , being in Regia via , leading from such a Town to such a Town ; and also the said J. S. was indicted for executing the command of the other : Exception was taken to the first Indictment , because no place of the commandment is alledged in the Indictment , and for that cause the Indictment was taken insufficient , although Mr. Plowden strongly insisted upon the contrary , as in Trespass the Defendant justifies by the commandment of J. S. the same is good without any place of the commandment , for in the first Case the commandment is traversable , but contrary put by Mr. Plowden , Vide 3 H. 7. 11. Markenfields Case . Another Exception was taken to the Indictment , because it is not there alledged , that the Bridge was a common Bridge , but because there was other words in the Indictment which supplyed the same , scil. in via Regia , the Indictment was holden good enough .

CXV . 19 Eliz. In the Common Pleas.

IN a writ of Partition between Tenants in common upon the Statute , of 20 Acres of Land ; the Defendant as to part , scil. 10 Acres , pleaded Non tenet pro indiviso , and as to the residue confessed the Partition ; and by Manwood , and Ford chief Prothonotary , the confession ought to be in the beginning of the Plea , and Non tenet pro indiviso , in the second place last , so as that part of the Plea which agrees with the Demand , ought to preceed the part which denies demand : And the truth of the Case was , that the Defendant had but 10 Acres in all , and of them was sole seized . Manwood , If your Case be such you may safely plead to the whole Non tenet pro indiviso .

20 Eliz. In the Common Pleas. CXVI . Duffams Case .

A Man made a Lease by Deed indented for 20 years to begin after the expiration of a former Lease thereof made to one Duffam , in an Action brought by the second Lessee against the Lessor ; the Lessor said there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam . It was said that such a Plea did not lye for the Lessor , Estoppel . for he is estopped to say against the Indenture , that no such Duffam was , &c. And also , if no such person was , then the first Lease was void , and the second Lease should begin presently , which Mounson and Manwood concesserunt And Manwood said that the Defendant should be estopped by the recital of the first Lease , to say that no such Duffam was ; and although that the common ground is , that a recital is not any estoppel , yet where the recital is not material , as it is here . for the second Lease is to be begun upon the expiration of the Lease recited , there is an estoppel . Recital .

Trin. 29 Eliz. In the Common Pleas. CXVII . Brown and Fulsbyes Case .

UPon the Statute of 5 Eliz. of Vsury , the Case was this , Stat. 5 Eliz. of Usury . A. borrowed of B. 80 l. and was bound in an Obligation to pay to him . 90 l. at the end of the year : It was the Opinion of the Iustices , that although the 90 l. was tendred , and B. the Lender did tell the same , yet if he take and except but of 80 l. it is not Vsury within the Statute to make a treble forfeiture ; but yet in that Case the Obligation it self is void .

CXVIII . Trin. 29 Eliz. In the Exchequer .

NOte in the Case of the Tenants of Owning and Northmaston . It was holden by Manwood Chief Baron , That he who hath vesturam terrae cannot dig the Land . And Gent Baron said , where many have Lot-Meadow to be divided , every year by lot , who shall have the Grass of such an Acre , and who of such an Acre , &c. and so change every year according to Lots , they have not any Freehold therein , but only Vesturam terrae .

Trin. 32 Eliz. In the Exchequer . CXIX . Sir Walter Wallers Case .

3 Leon. 259. Execution . a Leon. 77. IN the Case of Sir Walter Waller , it was moved , if one hath Iudgment in Debt , and thereupon within the year and day sueth a Capias ad satisfaciend . although he doth not prosecute the same in two or three years , yet when he pleaseth he may proceed upon it , and shall not be put to a Scire facias , and of that Opinion was Philips . Manwood Chief Baron , I agree that if one hath sued a Writ of Execution , and the same be continued two or three years by Vicecomes non misit breve , yet the Plaintiff may proceed upon it , Discontinuance of Suit. and shall not be put to a Scire facias . But if such Writ be sued forth , but not continued , but discontinued for a year and a day , he shall be put to a Scire facias , for it is the negligence of the Plaintiff not to continue it , which within the year and day he might do without Order of the Court ; but not after the year by any Order of the Court.

32 Eliz. In the Exchequer Chamber . CXX . Russel and Prats Case .

RUssel as Executor of Russel brought an action upon the Case against Prat and his Wife , of Trover and Conversion of Goods and 700 l. in money , and declared that the Testator was possessed of these Goods , 6 Feb. 1 Eliz. at which day they came to the hands of the Defendant dum ipsa sola fuit , and converted them , &c. and Licer the Wife dum sola fuit was required and the said Prat and she after their marriage , to deliver them , yet they not only refused so to do , but knowing the said Goods and Money de jure to belong to the Testator in his life , and to his Executors after his death machinantes ●psum inde call●de decipere & defraudare , the said Wife dum ipsa sola fuit converted them to her use the said 6 day of February . And Error was assigned in the Declaration , because it is not alledged there , whether the said conversion was in the Life of the Testator , or after his death , for that ought to be shewed certainly ; for if it was in the life of the Testator , then it was not punishable by the Common Law or Statute Law , and the conversion is the principal point of the action . This action is personal & moritur cum persona ; for it is grounded upon a personal wrong , and ariseth upon a disceit and wrong , and if there was no conversion , then an Action of Detinue should lye 7 E. 3. Replevin by Executors of Goods taken in the time of the Testator , Fitz. Exec. 106. And it was said that this Action here doth not lye upon the Statute of 4 E. 3. which gives to Executors an Action of Trespass De bonis asportatis in vita Testatoris , for the said Statute gives remedy in Cases , where there was no remedy before , but here the Plaintiff might have Detinue . And in our Case it appeareth not whether the Conversion was in the life of the Testator , or after his death , therefore for the incertainty it is not good . Also here is a repugnance in the Declaration , scil. Sciences the said Goods de jure pertinere to the Testator , in his life , and after his death to his Executors , & machinantes ipsum inde decipere & defraudare , the said wife dum ipsa sola fuit , converted them to her use , which cannot be , &c. Popham Attorney General contrary . And he agreed , that the Executor should not have an accompt against one who was accomptable to the Testator , because the privity was gone . But it hath been granted on the other side , that here upon the matter Detinue lieth , and if , &c. then also this Action lieth , for this is the nature of it . If the Testator lends a Horse to a special purpose , scil. to ride to such a place , and the party rideth further , and the Testator dyeth , the Executor may have Detinue , or this Action , be the Conversion in the life , or after the death of the Testator ; and yet the damages recovered , for the Goods converted shall be Assets . Two Ioyntenants possessed of Goods , lose them and they come to A. by Trover , who converts them to his use , be it in life , or after the death of one of them , is all one . Anderson , The Conversion may be well intended after the death ; and as to the Exception for the Repugnancy , it was said by the Iustices , that the words ●ciente● , &c. are but surplusage , and not traversable . Cook. If I deliver Goods to a Carrier , being in a Chest , and he breaks it and takes them out , in that Case Trespass lieth vi & armis , notwithstanding the delivery . Anderson , praedicta tamen ; i. e. Non obstante , that the Testator was dead , did not redeliver them , &c. which proves that the Testator was dead : Periam , praedicta tamen , refers to the Non deli●eravit , not to the Conversion . Cook , I find your Goods and use them , the same is a Conversion : and in the Case of Knight against Vinchcomb , it was holden that a Conversion is traversable , therefore it ought to be certainly alledged : and in our Case the Executor might have detinue or Trespass for the personal wrong ; where the thing it self certain is to be recovered , there the Executor is sure to have an Action , as Detinue , Replevin , &c. but where damages only , or things uncertain , there the Executors shall not have Action ; and that difference was in a manner agreed by all . Anderson , Where it is said , That upon the Assumpsit of the Testator , the Executor shall have an Action upon the Case , the reason is , because the duty upon the Assumpsit is certain : and the Statute of 4 E. 3. shall not be taken by Equity ; for by the said Statute , the Executor of an Executor shall not have an Action before the Statute of 25 E. 3. Also there is not any wrong , for then moritur cum Persona : If one finds my Goods , and denies the having of them , the same is not Trespass . Periam , This Case is not within the Statute of 4 E. 3. for the Statute is to be intended , where Goods are taken vi & armis , and if it be at all within the Statute , it must be within the Equity of it . Manwood , Where one takes my Horse and dies , I shall not charge his Executor , and that is our Case . At another day some held , That the Action did not lye against Executors , therefore not for Executors : And Executors of Executors shall not be charged with a Devastavit made by the first Executors . Manwood , The Executor of the Gaoler shall not be charged in an Escape . Anderson , It is not within the Equity of the Statute of 4 E. 3. Cook. A Smith pricks my Horse , my Executors shall not have an Action for it . Anderson , If one takes my Goods , I shall have Detinue for it , therefore this Action . Cook , If one take my Goods he is a Trespasser , and I shall have Detinue , for that affirms a property . Manwood , If my Goods be taken from me , I cannot give them to a stranger , but if my Goods come to another by Trover , I may give them over to another .

CXXI . Trin. 32 Eliz. In the Exchequer .

Attaint . IT was holden by all the Barons , That where the Queen is sole Party against the Subject , and the Iury find for the Queen , no Attaint lyeth ; contrary where the Suit is Tam pro Domina Regina , quam pro seipso .

CXXII . Trin. 32 Eliz. In the Exchequer .

Debt : IF Rent-corn be reserved upon a Lease for years , and it is behind for two or three years , the Lessor may have Debt for the Corn , and shall declare of so much Corn , and it shall be in the Detinet , but yet he shall not have Iudgment to have Corn , but so much mony as the Corn was worth , every several year being accompted . Clark Baron doubted if he shall recover the price of the Corn , as it was at the time when it was payable , or it was at the time of the Action brought . Manwood , The Law is clear , that the Lessee shall pay according to the price it was at the time of the payment and delivery limited by the Lease . Clark said , A is bound to pay and deliver to the Obligee 10 Bushels of Wheat , and no place is appointed where the payment shall be made , the Obligor is not bound to seek the Obligee in what place soever as it is in Case of payment of mony , for that the importableness therefore shall excuse him , which Manwood granted .

CXXIII . Trin. 27 Eliz. In the Exchequer .

NOte , It was holden by the Barons , Fine for Alienation without Licence . that for Fines for Alienation without licence , not only the Land aliened , but the other Lands of the Alienor shall be chargeable .

Mich. 30 Eliz. In the Exchequer . CXXIV . Prowses Case .

IT was holden in the Case of one Prowse by Egerton Solicitor , Tythes . upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate , and also Land within the same Parish , &c. and so paid no Tythes , because he could not pay them to himself , and for no other cause was discharged ; and after the Dissolution , the Rectory is granted to one , and the Land to another , that in such Case the King nor his Patentees should not be discharged of Tythes , for the Lands were not discharged in Right ; but if the Lands in the hands of the Abbot were discharged in Right , as by composition or lawful means , there the King and his Patentee should be discharged from payment of Tythes . And it was said by Burliegh Lord Treasurer , that if the Composition or Custom was that the Abbot and his Successors should be discharged without extending to Farmors or Lessees , if the Abbot made a Lease , and the Lessee paid Tythes , as he ought ; and after the Reversion cometh to the King , the Lessee should pay Tythes during his Lease , but after the Lease determined , the King and his Patentee should not pay , but should be discharged by the said Statute ; and said , the like matter was in the Chancery . Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury , 11 H. 7. purchased Lands within the said Parish to him and his Successors , Unity no discharge of Tythes . after the dissolution the King granted to G. the Rectory , and to W. the Lands ; and if W. should pay Tythes , was referred to Manwood and Periam , who gave their Resolution , that Tythes were payable .

Trin. 30 Eliz. In the Kings Bench. CXXV . Ropers Case .

ROper was robbed by Smith , and within a week after the Robbery , he preferred an Indictment against him , and within a month after the Robbery , he sued an Appeal against Smith , and prosecuted it until he was out-lawed , and thereupon Cook moved to have Restitution , and they of the Crown Office , said that the Fresh-suit was not enquired , for upon an Appeal one shall not have Restitution without Fresh-suit . Restitution . Cook , The Books are , if the Defendant in the Appeal of Robbery be attainted by Verdict , Fresh Suit. the Fresh-suit shall be enquired of : But here he was attainted by Outlary , and not by Verdict , and so the Fresh-suit could not be enquired of ; and here the Indictment is within a week , and the Appeal within a month after the Robbery , is a Fresh-suit . Wray Chief Iustice , In our Law he is to pursue the Felon from Town to Town ; but the suing of the Appeal is no Fresh-suit , vide 21 F. 4.16 . Restitution grounded upon Outlawry , and Appeal of Robbery without Fresh-suit enquired of 1 H. 4. 5. if he confess the Felony , and so is 2 R. 3. 13.

Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leversuches Case .

IN Ejectione firmae by Piers against Leversuch . It was found by Verdict that one Robert Leversuch , Grandfather of the Defendant , was Tenant in Tail of the Land whereof , &c. and made Lease for years to Purn , who assigned it over to Piers the Plaintiffs Father . Robert Leversuch died , W. his Son entred upon Piers , who re-entred ; W. demised the Lands without other words to P. for life , the remainder to Joan his wife for life , the remainder to the Son of P. for life , with warranty , and made a Letter of Attorney to re-enter and deliver seisin accordingly . P. died before that the Livery was executed , and afterwards the Attorney made Livery to Joan , W. died , Edward his Son and Heir entred upon his Wife , she re-entred and let the Land to the Plaintiff , who upon an Ouster brought the Action . Heal Serjeant , When P. entred upon W. Leversuch , the Issue in Tail , he was a Disseisor , and by his death the Land descending to his Heir , the entry was taken away of W. Leversuch . Cook contrary , P. by his entry was not a Disseisor , but at the Election of W. for when P. accepted such a Deed of W. it appeared that his intent was not to enter as a Disseisor ; and it is not found that the said P. had any Son and Heir at the time of his death , and if not , then no descent , and there is not any disseisin found that P. expulit Leversuch out of the Land , and Iudgment was given against the Plaintiff . And Cook cited a Case which was adjudged in the Common Pleas ; it was Skipwiths Case . Grandfather Tenant in Tail , Father , and Son , the Grandfather died , the Father entred and paid the rent to the Lessor , and died in possession , and it was adjudged the same was not any descent , for the paying of the rent explained by what title he entred , and so shall not be a Disseisor , but at the Election of another .

Trin. 33 Eliz. In the Kings Bench. CXXVII . Penhalls Case .

PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church against J. S. without saying , that he drew it with intent to strike the Party , and for that cause the Indictment was holden void , as to the Statute . It was moved , if it should not bee a good Indictment for the Assault , so as he should be fined for the same : By Sands Clerk of the Crown , and the whole Court , the Indictment is void in all ; for the conclusion of the Indictment is contra formam Statuti , and then the Iury cannot enquire at the Common Law.

Trin. 33 Eliz. In the Kings Bench. CXXVIII . Weshbourns Case .

WEshbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was taken to it , because in the Margent was written Middlesex , and in the Indictment they both were named of London , and afterwards in the proceedings the words are , That Weshbourn and Brown entred in such manner in Com. praedict . and that is incertain what County is intended , Middlesex or London ; but the Exception was not allowed , for London before is not expressed to be accounted , but only implyed . Another Exception was , because they had not any addition ; but it was not allowed , for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Restitution upon such Indictment should be granted if ●he party indeed had had the Occupation , or had been in quiet possession for three years next before the day of the Indictment , and in the Case at Bar the Master hath been in possession by three years , but the Parties indicted being his Servants , had been with him but for one year ; it was thereby holden by the Court , that upon the matter Restitution should not be granted , for the possession of the Master in this Case , takes away all Restitution , and that by the Statute .

Mich. 32 Eliz. In the Common Pleas. CXXIX . Canons and Osborns Case .

A. Seized of a Rent in Fee , granted the same by Fine to B. to the use of C. It was moved to whom the Ter-tenant should attorn. And by Walmesly , Periam , and Windham , there needs not any Attornment to the Conusee , because all the right of the Rent is out of the Conusor , Attornment . and transferred to Cestuy que use instantly : And Walmesly cited this Case to have been lately adjudged . A Reversion in Fee upon a Lease for years was granted by Fine to A. to the use of B. B. without Attornment brought an Action of Waste , and it was adjudged that the Action did well lye .

CXXX . Mich. 32 Eliz. In the Common Pleas.

A Lease for years is made by Deed Indented rendring Rent , and the Lessor covenants that the Lessee paying his Rent shall enjoy the Land demised for the whole term , the Lessee did not pay the Rent , and afterwards is ejected by a Title peramount : By Walmesly and Windham Iustices , that the Covenant is conditional , and that the Lessee should not have advantage of it , if he did not perform the Condition , which is created by this word ( paying . ) Periam Iustice , was strongly to the contrary , viz. that the word ( paying ) did not create a Condition .

Mich. 32 Eliz. In the Common Pleas. CXXXI . Thetford and Thetfords Case .

THe Case was an Action of Debt for Rent reserved upon a Lease for years ; the Plaintiff declared that Land was given to A. and B. his Wife , Leases . and the Heirs of their Bodies , and that he and his Wife leased for years to the Defendant , Baron and Feme . and that the Donees were dead , and that the Plaintiff as Heir , &c. for Rent behind , &c. And upon Non dimiserunt , the Iury found , that the Husband and Wife dimiserunt by Indenture , and that after the Husband died , and the Wife entred and within the term died : Agreement . Disagreement . Now upon this matter , Anderson Iustice , conceived clearly that the Iury have found for the Defendant , scil. Non dimiserunt , for it is now no Lease ab initio , because the Plaintiff hath not declared upon a Deed , and also the Wife by her disagreement to it , and Occupation of the Land after the Death of her Husband , had made it to be the Lease of her Husband only .

Trin. 31 Eliz. In the Common Pleas. CXXXII . Acton and Pitchers Case .

IN a Writ of second Deliverance by Acton against Pitcher . Leases within 32 H. 8. It was moved , if a Lease made by a Prebendary were within the Statute of 32 H. 8. cap. 28. because the said Statute speaks of men seized in the right of their Churches , and a Prebendary is seized in right of his Prebend , and not in right of the Church : But it is the Opinion of the whole Court , that he was within the Equity of the Statute .

Trin. 32 Eliz. In the Common Pleas. CXXXIII . Curtises Case .

IN a Writ of Error it was holden in the Common Pleas , Amendment . that if a Writ of Error be brought and delivered to the Chief Iustice de Communi Banco , and allowed by him under his hand ; that afterwards the Record cannot be amended by Prothonotary , Attorney , or Clerk of the Court , although that no Record be entred upon the Roll , upon which the Writ of Error is brought .

Mich. 31 Eliz. In the Common Pleas. CXXXIV . Scots Case .

SCot brought a Formedon against A. who made default after default , Resceit . Anders . 133. and now came B. and surmised to the Court that C. was seized of the Land in Demand , and gave the same to A. in Tail , the remainder to the said B. in Fee , and prayed to be received ; and afterwards the Court , upon advice , ousted him of the Resceit .

28 Eliz. In the Common Pleas. CXXXV . Terrets and the Hundred of &c. Case .

IN an Action upon the Statute of Huy and Cry against the Hundred of , &c. the Defendants pleaded Not Guilty : Action upon Statute of Huy and Cry. And in Evidence , the Plaintiff to prove that he was robbed , offered to the Iury his Oath in verifying his Declaration , which Anderson and Periam utterly refused to accept of ; but Windham Iustice affirmed , that such an Oath had been accepted of in the Case of one Harrington , Oaths . where the Plaintiff could not have other Evidence to prove the Cause in respect of secresie ; for those who have occasion to travel about their occasions , would not acquaint another , what monies or other things , which they have in their journey : and we see that the Law doth admit of the Oath of the Party in his own cause where the Oath shall make an end of the cause , as in Debt , where the Defendant wageth his Law. Periam , That 's an ancient Law ; but we will not make new Presidents , for if such an Oath be accepted of us in this case , by the same reason in all causes where is secrecy and no external proof , whereupon would follow great inconvenience ; and although such an Oath hath been accepted of , and allowed here , yet the same doth not move us , and we do not see any reason to multiply such Presidents . The Declaration is , that the Plaintiff was robbed of 10 l. de Denariis ipsius querentis , and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich , and had received the said mony for the use of the said Lady : And Exception was taken to the same by Shuttleworth , but it was not allowed of , for the Plaintiff is accomptable to the Lady Rich for the said mony . And it was agreed , that if he which was robbed after he had made Huy and Cry , doth not further pursue the Felons , yet his Action lyeth .

Mich. 26 Eliz. In the Kings Bench. CXXXVI . Townsend and Pastors Case .

Feoffment by Coparceners Cestuy que uses . NOte , It was holden in the Common Pleas by all the Iustices in the Case between Townsend and Pastor , two Coparceners are in the use of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor , that this Feoffment is not only of the moiety of the Manor , whereof she might lawfully , and by the said Statute make a Feoffment , but also of another moiety by disseisin .

Mich. 26 Eliz. In the Kings Bench. CXXXVII . Bulwer and Smiths Case .

BUlwer brought an Action upon the Case against Smith , and declared , how that H. H. had recovered against the Plaintiff in the Common Pleas 20 l. and before Execution died , and that the Defendant knowing that , at D. in the County of Norfolk , malitiose & deceptive machinans , to Outlaw the Plaintiff upon the said Iudgment , in the name of the said H.H. &c. in performance of his said purpose , at W. in the County of Middlesex , took out a Capias ad satisfaciend . in the name of the said H.H. against the now Plaintiff upon the said Iudgment directed to the Sheriff of London , and Non est inventus being returned upon that , took out an Exigent , in the name of the said H.H. which Writ by the procurement of the Defendant was retorned , and then the Plaintiff was Outlawed , and afterwards the Defendant in the name of the said H. H. took out a Capias utlagatum against the Plaintiff directed to the Sheriff of Norfolk ; by force of which the Plaintiff was arrested and imprisoned for two months , until he had gotten his Charter of Pardon , by reason of which Outlawries the Plaintiff had forfeited all his Goods and Chattels : and upon the said Declaration , the Defendant did demur in Law , and the principal cause of the demurrer was because that the Action might have been laid in Middlesex , where the wrong began , scil. the Capias ad satisfaciend , the Outlawry for this imagination at D. in the County of Norfolk , set forth in the Declaration , cannot give to the Plaintiff this Action : But if divers conspire in one County for to indite one , and they put the same in Execution in another County , the Party aggrieved may lay his Action in which of the said two Counties he pleaseth 22 E. 4. 14. for a Conspiracy is more notorious , than an imagination , imaginatio est unius , conspiratio plurimorum : And in this Case the Deliverance of the Capias at D. in Norfolk is but accessary , and the suing of the Process aforesaid at Westminster is the principal : upon the part of the Plaintiff it was said , that such an action might be laid in the County , where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter , which was but conveyance to the said wrong , was done . A imprisoned upon a Capias ad satisfaciend . in Middlesex escapes into Surrey , the Action upon the escape shall be laid in Surrey . Reteiner of a Servant in one County , who departs in another County , the Master shall lay his Action in which of the said Counties he will , 15 E. 4. 18 , 19. 41 E. 3. 1. A Writ of Disceit was brought in the County of York , and the Case was , that in a Praecipe quod reddat of Land , the Tenant shewed forth a Protection at Westminster , the which was allowed for a year , and within the year the Tenant stayed in the County of York upon his own occasions , the said Writ of Disceit was holden to be well laid , for there the wrong began , notwithstanding that the Original : i. e. the casting of the Protection was in Middlesex ; for the disceit is , that the Tenant contrary to the pretence of the Protection continued at York , for the Protection was quia Moraturus . And always where the cause of the Action consists of two things , whereof the one is matter of Record , and the other is matter of Fact : there the Action shall be laid in such County , where the matter in fact may be more properly tried , Vide 11 R. 2. Fitz. Action sur le Case 36 Br. Lieu 84. in the principal Case at Bar , the Court was of Opinion , that the Action was well brought in the County of Norfolk . Another Exception was taken to the Declaration , because the Plaintiff hath there set forth whereas his true name is John Bulwer , by which name he now sues , he was sued and outlawed by the name of John Buller , and then the now Plaintiff upon that matter was never sued , nor outlawed , and then is not grieved by the Defendant , but John Buller ; for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the same , and not divers Persons : But the Exception was disallowed , for the whole Court held , that for As much as the Plaintiff hath declared that he , by the name of John Buller , was sued and Outlawed , the same is an averment in Law , &c. and amounts to so much . Another matter was objected , because it appeareth in the Declaration that H. H. was dead before this Process was sued , and then the Outlawry was erronious , and so the Plaintiff is not at any mischief , but that he may reverse the Outlawry by Error ; as in Conspiracy , the Defendant pleads , that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and so his life was never in jeopardy . But as to that , it was said by the Court , that the erronious proceedings of the Defendant shall not give advantage to himself , but because the Plaintiff was vexed by colour and reason of the Outlawry , and put to his Writ of Error , which cannot recompence the loss and damage by him sustained by reason of the Outlawry aforesaid , it is reason that the Plaintiff have his Action ; wherefore Wray Chief Iustice , ex assensu Sociorum , gave Iudgment for the Plaintiff .

CXXXVIII . Mich. 27 Eliz. In the Kings Bench.

Upon the Statute of 23 Eliz. of Recusancy . CErtain Persons were indicted upon the Statute 23 Eliz. for refusing to come to the Church , and upon the same were Outlawed , and now they came to the Kings Bench ready to make their submission , and to conform themselves according to the said Statute ; and thereupon they prayed to be discharged . But the Court would not receive such Submission , but advised them to purchase their Pardon for the Outlawry , and then to tender their Submission , which they did accordingly , and at another day came again , and shewed to the Court their Pardon ; whereupon the Clerk of the Court asked them if they would conform themselves according to the said Statute ; who said they would , wherefore they were discharged .

Mich. 27 Eliz. In the Kings Bench. CXXXIX . Christian and Adams Case .

Action for words . AN Action upon the Case was brought for speaking these scandalous words of the Plaintiff , scil. the Plaintiff did conspire the death of the Defendant ; it was found for the Plaintiff , and moved in Arrest of Iudgment , that upon the matter the Action did not lye ; for the bare conspiring of the death of a man is not punishable by the Law of the Land , no more than if many conspire to indict one , but do not put it in Execution it is not punishable ; but if A. saith that B. lyeth in wait to kill him , or rob him , there an Action lyeth , for insidiatores viarum are punishable . But the Opinion of the whole Court was , that because these words sound in great discredit of the Plaintiff , it is reason he have his Action , and so Iudgment was given for the Plaintiff .

Mich. 27 Eliz. In the Kings Bench. CXL . The Lord Stafford and Sir Rowland Heywoods Case .

THe Lord Stafford brought an Action upon the Case against Sir Rowland Heywood Kt. Abatement of Writ . Exception was taken to the original Writ , viz. ad respondend . &c. Quare colloquium , quoddam habebatur , inter Dominum Stafford & Row. Heywood de assurando Castrum , to the said Lord Stafford by the said Sir Rowland , &c. Dictus Rowlandus Castrum illud non assuravit , &c. where the said Writ said cum colloquium quoddam habebatur ; for the cause of the Action is not colloquium habitum , but the not assurance of the Castle according to the promise made super colloquium praedictum ; and for that cause the Writ was abated .

CXLI . Mich. 27 Eliz. In the Kings Bench.

NOte , by the Court , If one who is not a common Informer , be barred in any Information or Action upon a penal Statute , he shall pay costs , notwithstanding the Preamble of the Statute of 18 Eliz. cap. 5. be , for the redressing of divers Disorders in common Informers ; but if pars gravata be barred , in such case he shall not pay costs .

Trin. 32 Eliz. In the Exchequer . CXLII . Robinsons Case .

GEorge Robinson Lessee for years of the Manor of Drayton Basset , the Reversion to the King , devised his term to his wife , as long as she should keep her self a Widow , with the Remainder over , if she married or died , and made his Wife and his Son William his Executors , the said William being within age , and therefore the administration was committed to the Wife alone , and she only proved the Will , and afterwards the Wife granted all her Interest to the said William , and dyed ; And by Cook nothing passed by this Grant , for William had the same before , for every Executor hath the whole Interest . Popham contrary ; for at the time of the Grant the Son was within age , and had not administred nor proved the Will , therefore in effect the wife was sole Executrix ; and by Egerton Solicitor , if during the said Executorship by the wife , one doth trespass upon the Lands , the wife only shall have the Action of Trespass without naming her Co-Executor , which Cook denied ; and he cited the Case 10 H. 7. 4 where two Executors are , and the one only is possessed of goods of the Testator and a Stranger takes them our of his Possession , to whom the other Executor releaseth , and after the Executor , out of whose possession the goods were taken , brings an Action of Trespass against the Trespasser , who pleads the Release of the other Executor , and it was holden a good Plea , for the possession of the Plaintiff was also the possession of his Companion : The Case was further , that Thomas Robinson in pleading , shewing that G. Robinson was possessed , and the same devised to his wife , who granted to William Robinson , who devised it to the Defendant : And the other side shewed , that the said Thomas granted the said term to Paramour , and upon that grant they were at Issue ; if now against his own pleading Thomas might give in evidence , that Thomas could not grant , for that he had not any thing to grant ; for if the gift made by the wife to William was void , and he had the term as Executor , then he could not devise it , but his devise to Thomas was void , and then Thomas could not grant it , and so Ne grant pas . It was also shewed , that the said Thomas granted the same to Paramour by Indenture ; if now against that Indenture he might give in evidence such special matter ; ut supra ; and if the Party shall be concluded , if the Iury shall be concluded to give the Verdict Secundum veritatem facti , for they are sworn to say the truth , and by Popham and Egerton , as well the Iurors , as the Parties , are bound and concluded by the confession of the Parties on the Record ; and here all confess that William devised to him , virtute cujus he was possessed . The Queens Attorney to that said , That true it is that Thomas Robinson was possessed ; but further said , that the said Thomas granted it to Paramour , and so the Interest of Thomas is confessed on both sides . Therefore the Iury shall not be received to say the contrary . And by Manwood Chief Baron , if the Parties admit a thing by not gainsaying it , Jurors , where bound by confession of the parties , where not . the Iury is not bound by it ; but where upon the pleading a special matter is confessed , the Iury shall be bound thereby . And afterwards the Issue was found against Robinson the Defendant .

33 Eliz. In the Kings Bench. CXLIII . Applethwait and Nertleys Case .

IN an Action upon the Case , the Plaintiff declared , that the Defendant promised in consideration that the Plaintiff at the request of the Defendant would marry his Daughter , to give to the Plaintiff 40 l. and said he had married his Daughter , and yet the Defendant Licet saepius requisitus would not pay it . It was moved by Cook in stay of Iudgment , that the Declaration is vitious because there is not set forth the place and time , when the request was made , for the Assumpsit being general , it is by Law to be paid upon request . Fenner , If the promise was expresly to be paid upon request , the Declaration was not good . And afterwards Iudgment was given for the Plaintiff .

Hil. 30 Eliz. In the Common Pleas. CXLIV . Wats and Kings Case .

SAmuel Wats Plaintiff in Ejectione firmae against W. King , upon a Special Verdict it was found that W. Wallshot was seized in Fee , and he with one Oliver Shuttleworth Octab. Mich. 3 & 4 Phil. & Mary , levied a Fine Sur Conusans de droit , &c. to John Hooper , who granted and rendred by the same Fine to Oliver for a month , the remainder to the said W. Wallshot , and to one Anne Cook , and the heirs of their bodies , &c. the remainder to the right heirs of the said W. Wallshot in Fee , and that with Proclamation . William and Anne intermarry , have issue John now alive : W. Wallshot 4 & 5 Phil. & Mary , levy a Fine with Proclamation to Edward Popham Esq to the use of the said Edward and his heirs : W. Wallshot 18 Eliz. died , Anne took to husband Richard Stephens , and they in the right of the said Anne entred , and by Indenture demised the said Land to Richard Hoose the Father , Richard the Son , and Mary his wife , for the term of their lives , rendring to the said Richard Stephens and Anne his wife , and to the heirs of the body of the said Anne , and of the right heirs of the same W. Wallshot . Anne died ; and if this Lease should bind the Conusee was the question , for it was agreed by all that the Issue in Tail was bound by the Fine , Quaere ; the Case was only put , but not resolved .

CXLV . Trin. 30 Eliz. In the Common Pleas.

UPon a recovery in a writ of Entry sur disseisin of two Acres of Lands , an Habere facias seisinam was awarded ; the Sheriff as to one Acre returned Habere feci , and as to the other tarde . And that return was shewed to the Court , Amercement of the Sheriff . and all the Iustices but Periam held that the Sheriff should be amerced for that return , being contrary & repugnant in it self ; but Periam said , it may be that the Acre of which no seisin is had was so distant from the other Acre whereof the seisin was had , that the Sheriff in time could not make execution of both being so remote the one from the other . To which it was answered , That if the truth of the case was such , Then might the Sheriff make Execution in one Acre in the name of both Acres . And if upon a Capias ad satisfaciend . against two , the Sheriff retorn as to one a Cepi , and as to the other Tarde , he shall be amerced , for his several retorns cannot stand together .

Mich. 29 Eliz. In the Common Pleas. CXLVI . Lees and Lord Staffords Case .

COmpton made Conusans as Bayliff to Edward Lord Stafford , and shewed that Henry Lord Stafford , Father of the said Edward , and Ursula his Wife , were seized of the place where , and let the same for years to Edward Lees the Plaintiff , Robert Lees , and Elizabeth Atwood , upon Condition they , nor any of them , should alien the said Term , nor any part of the same without the leave of the Lord or his Heirs . Henry Lord Stafford and Ursula died , and that the Reversion thereof descended to Edward Lord Stafford ; and shewed further , that the said Edward Lees the Plaintiff had aliened : To which the Plaintiff in bar of the Conusans said , that the said Edward now Lord Stafford gave License , that the said Edward Lees , Robert , or Elizabeth might alien , and that was without Deed. It was conceived by some , that this Licence was not of any force to dispense with the Condition , because it is uncertain and doubtful in the disjunctive ; and it was resembled to the Case of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty : But all the Court was to the contrary . For here the thing which is given is but a Liberty , and is not to be resembled to a Gift or Interest ; and the intent of the Lord Stafford was , that one of them might alien , but not all of them , and afterward Iudgment was given for the Plaintiff .

Trin. 31 Eliz. In the Kings Bench. CXLVII . Limver and Evories Case .

LImver as Administrator of one A. brought Debt against Evory , and the case was , F. made G. his Executor , and G. made H. an Infant his Executor and died , and during the minority , Administration was granted to the Plaintiff , who as Administrator of G brought an Action of Debt upon a Bond made to the first Testator , and that was assigned for Error , for the Plaintiff ought to bring his Action as Administrator of the first Testator , vide 10 E. 4. 1. 26 H. 8. 7. and for that Cause the Iudgment was reversed ,

Mich. 33 Eliz. In the Kings Bench. CXLVIII . Knevit and Copes Case .

KKnevit brought Ejectione firmae against Cope , and declared , 3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May , 32 Eliz. had let to him a House and two yard Lands , containing forty Acres of Land , Meadow , and Pasture , at Tithingham de forecomb , in the Parish of Steep , &c. and upon Not Guilty , the Visne was of Tithingham de Forecomb : Exception was taken by Cook , that the Declaration had not certainty ; for it is not shewed certain , how much Meadow Land , and how much Pasture is contained in the said two yard Lands , and the Iury may find the Defendant Guilty , as to so much Land , but not to the residue ; also he hath not shewed in the Declaration when the Lease was made , but only saith , that by Indenture bearing date 20 May , &c. but doth not shew any day of delivery of the Indenture , for then is the demise . To which Exception it was said by the Iustices , That the Declaration as to that was good enough , for it shall be intended to be delivered at the day of the date . Another Exception was taken to the Visne , because that the Visne ought to have been from the Parish , and not from Tithingham , 11 H. 7. 23 , 24. Forcible Entry in the Manor of B. in B. the Visne shall not be from the Manor of B. but of B. Gawdy , You shall never have a Visne of the Parish , for divers Towns may be in one Parish ; but here the Visne is well of Tithingham , for it may be that it is a Town . Cook , It is but a Vill conus , from which a Visne cannot come .

CXLIX . Trin. 28 Eliz. In the Common Pleas. Rot. 1027.

MIlbourn brought an Action upon the Statute of Winchester , against the Inhabitants within the Hundred of Dunmow in the County of Essex , it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis , inter horam secundam & matutinam tempore nocturno , & ante Lucem ejusdem diei ; and the Opinion of the Court was clear , that the Plaintiff should be barred , for the said Statute provided for ordinary Travel : as in the Case of Archpool , who came to his Inn post Sunset & ante noctem in tempore diurno , which is an usual time for travelling to come to his Inn ; but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours , for it is the folly of the Traveller to take his journy so out of season , and the Inhabitants are not bound to leave their Houses , and to attend the ways tempore nocturno : and another reason was alledged by the Iustices , because the said Statute appoints watch to be kept in the time of night , à Festo Ascensionis usque ad Festum Sancti Michaelis , and this Robbery was done the 23 of April , so as it was out of that time ; and afterwards Iudgment was given against the Plaintiff .

Mich. 26 Eliz. In the Common Pleas. CL. Barkers Case .

Estrepement in Partition . A Writ of Partition by Barker heir of Gertrude , Marquess of Exceter , who devised all her Lands to Blunt ; by which the third part was descended to the Plaintiff , and he prayed a Writ of Estrepement ; and it was the Opinion of the Court , that the Writ ought not to be granted , for that the Plaintiff might have a more proper remedy upon the Statute cum duo & tres , &c. and in a Writ of Partition , no Land is demanded .

Trin. 29 Eliz. In the Kings Bench. CLI . Megot and Davies Case .

Assumpsit . MEgot brought an Action upon the Case against Broughton and Davy upon Assumpsit ; and it was found by Nisi Prius for the Plaintiff , and afterwards before the day in Bank Broughton dyed ; and after Iudgment given , Davy the other Defendant brought a Writ of Error in the said Court , scil. in the Kings Bench , where Iudgment was given , and assigned an Error in fact , scil. the death of Broughton depending , the Writ , vide 2 R. 3. 21. and this Case is not like to Trespass ; for Trespass done by many are several Trespasses , but every Assumpsit is joynt : If the Court may reverse their own Judgment . and if the Court upon this matter might reverse their own Iudgment , was the Question ; the Case was not resolved , but adjourned .

CLII. Trin. 31 Eliz. In the Common Pleas.

IT was found by Office , that J. S. held by the Queen , and dyed without Heir , whereas in truth he had an Heir , scil. A. S. who leased the Lands for an hundred years , and afterwards traversed the Office , Office trove . and had an Ouster le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner , in behalf of the Sheriffs of London , before whom the matter depended , to whom it was said by Anderson Chief Iustice , Conveyance by the Heir ; upon Entrusion . That where the King is entituled by an Office to a Chattel , as to a wardship ▪ &c. there if the Heir without any intrusion bargain and sell , levy a Fine , or lease for years during the possession of the King , it is void against the King , but shall bind the Heir ; but where the King is intituled to the Fee-simple , as in this Case , such a Conveyance is meerly void .

Hil. 31 Eliz. In the Kings Bench. CLIII . Samuel Starkeys Case .

HOmine replegiando by Samuel Starkey to the Sheriffs of London . Who returned , that the said Starkey was indicted to be de mala fama & deceptione Domini Regis , with divers other general words , and namely that he had deceived J. S. a Clothier , and that he was a common Cozener ; and thereof being found guilty , Iudgment was given by the Mayor and Recorder , That he should be disfranchized of his Freedom , and should be fined and imprisoned for a year ; and further said , that he had not paid his Fine , nor the year expired . Cook , Such Return hath not been seen , and it is directly against the Statute of Magna Charta . Wray Chief Iustice gave a Rule that the Sheriffs should make their Return at their perils before such a day .

Hil. 31 Eliz. In the Kings Bench. CLIV. Bushy and Milfeilds Case .

IN Error brought by Bushy and Milfeild , It was assigned for Error , that where in the first Action the Iury gave four pence Costs , and the Court gave de incremento three and twenty shillings , that in the Iudgment the four pence was omitted . Error . It was the Opinion of the Court , That for that Cause the Iudgment should be reversed , although it be for the advantage of the Party , so where the Iudgment is quod sit in misericordia , where it ought to be Capiatur .

Hil. 29 Eliz. In the Common Pleas. CLV . Bingham and Squires Case .

BIngham brought Debt upon an Obligation against Squire . Obligation . 3 Leon. 151. The Condition was , If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the said Bingham , so as the said Bingham , at the said next Avoidance may present , that then , &c. The Case was , That afterwards by the means and endeavour of Squire , the Grant of the next Avoidance was made to Bingham : but before the next Avoidance , the present Archdeacon was created a Bishop , so as the presentment of that Avoidance belonged to the Queen : It was adjudged in this Case , that the Condition was not performed , and that by reason of these words , scil. So that Bingham may present . And afterwards Iudgment was given that the Plaintiff should recover .

Hil. 26 Eliz. In the Common Pleas. CLVI . Mansors Case .

A. Man bound himself in an Obligation to make an Assurance of Lands the first day of Jan. and the last day of December , he to whom the Assurance was to be made , scil. the Obligee , the said last day before Sun-setting , came to the Obligor with a Deed ready to be sealed , and prayed him to seal it ; who said to him that he was a man unlearned , and said he would shew the same to his Counsel , and then he would seal it . And if the Obligation was forfeited or not , because he did not seal it presently ▪ was the question : And Fenner argued that it was not ; for when a thing is to be done upon request , then he who makes the request , ought to give sufficient and convenient time to perform the Condition . I agree , That where the Condition is absolute , there if the Condition be not performed , he shall not be excused by the default of another . As if a man be bounden to marry A.S. and she will not marry him ; or to enfeoff J. S. and he refuseth , as 3 H. 6. is , the Obligation is forfeited ; Yet in these Cases if the Obligee himself be the cause that J. S. will not take the Feoffment , or he will not marry A. S. the Obligation is not forfeited : So in our Case , for by his late request it is impossible for me to perform the condition ; for before my Counsel shall have perused it , the time will be past . If a man be bound to enfeoff one of Lands in Barwick , request ought to be made so long time before , that after that he may go to Barwick . So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender so long time before the last instant of the last day , that the mony may conveniently be told . This Case was in question . A man made a Feoffment of the Manor of D. with the Appurtenances , to which an Advowson was appendant , and covenanted that the Manor upon request should be discharged of all manner of Incumbrances , and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died , the Clark of the Grantee was instituted and inducted , the Feoffee requested the Feoffor to discharge the Incumbrance . The opinion of many Sages of the Law was , that he had not made his request within convenient time . So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. shall have Issue of his Body ; If the Obligee demand Assurance after the death of J. S. without Issue , yet the Obligation is not forfeited . In 22 E. 4. if Lessee for the life of another continues possession for two or three weeks after the death of Cestuy que use , where he could not have more speedy notice of his death , he shall not be a Trespassor . In 15 Eliz it was holden in Wottons Case , That where he was bound to make a Feoffment to J. B. and J. B. came to him in Westminster Hall , and tendred to him a Writing , and prayed him to seal it . And Wotton said that he would not , that the Obligation was forfeited ; contrary if he had not denyed to seal it , but had shewed the same to his Counsel , as in our Case . But the Opinion of the Iustices was , that the Obligation was forfeited . For when he knew the last instant of the time , he ought to have had his Counsel there ready with him . Vide the Case of Arbitrement 18 E. 4. 21. At another day the Case was argued again by Andrews , and he said that the Obligation was not forfeited ; For he said it is a Rule in Law , Sic utere tuo , ut alienum non laedas , and in E. 4. a man was bound upon request to relinquish and renounce Administration ▪ and there it was holden , that after the request he ought to have convenient time to go to the Ordinary , before it shall be said that he had forfeited his Obligation . In 33 E. 3. it is said that if J. S. be bound , That if A B infeoff C. that then he shall pay to the Obligee 10 l. Now if the Feoffment be made after Sun-setting as it well may be , yet it is sufficient to save his Obligation , if he pay the mony the next day : And 19 H. 6. an Annuity was granted to an Infant until he was promoted to a Benefice , if a Benefice be offered unto him before he be of sufficient age , and he refuseth it , the Obligation is not forfeited . If a man be bound to enfeoff and make Livery and Seisin of the Manor of D to one upon request , and afterwards the Party is made King , in which Case he cannot take Livery , now if upon request the Party refuseth , yet it is no Forfeiture : And it hath been holden here by you all , That if a man unlearned seals a Deed which is written contrary to the intent of the Parties , the same not being read unto him , by that he shall not be bound for ever . But the Opinion of the Court was as before , That the Obligation was forfeited .

CLVII . Pasc. 26 Eliz. In the Common Pleas.

NOte that Mead and Windham ( the other Iustices being absent ) were of Opinion , That a Copyholder in Fee , who by Custom may surrender in Fee , may make a surrender in Tail , without any Special Custom to warrant it ; and he who may prescribe to make a Feoffment in Fee , may make a Lease for Life , and it shall be good , because Omne majus continet in se minus .

Trin. 27 Eliz. In the Kings Bench. CLVIII . Trecarram and Friendships Case .

1 Leon. 287. TRecarram made a Demise by these words : This Indenture between Trecarram , &c. of the one part , and Friendship his W●●e , and their Children lawfully begotten , at the Assignment of the said Friendship of the other part . The Question was , if L. the Daughter , which the Husband and Wife had at the time of the Lease made , was Party to the said Indenture , and so took by it . Or if another Son of Friendship , which after he made his Executor , should have the Term. Hamon , 30 E. 3. If a Gift be made to Infants of such a man , it is a good Name of purchase , and if he hath but one Infant , it is good to him : and so in our Case , where Friendship had Issue a Daughter , at the time of the Lease , that she should take only ; otherwise where he had many . And the words , viz. at the Assignment of Friendship , are mere surplusage , as 20 Ass . where a man gave twenty loads of Wood in such a Wood ( whereof fourteen he hath of the gift of such a one , ) these words ( whereof he hath of the gift of such a one , ) are surplusage . Cook conceived that the Daughter , who was in esse at the time of the demise , should have the Term : For if a man make a grant to two , as the one of them is not Capax , he who is capable shall have the whole . As a Feoffment to J. S. and the right Heirs of J. D. J. D. being alive , J. S. shall have the whole . So Ass . a gift to a man , and to such a wife which he shall have he shall have the whole , and the wife nothing : The words At the Assignment , &c. are void , for there is not a Person able to take at the time of the grant , therefore he shall not take afterwards ; and because the Daughter is able , she shall . Wray Iustice , conceived that these words , At the Ass●gnment of Friendship were not void , but that he had reserved to him liberty to make his Son party , or not ; and because he had not assigned him , that he took nothing . Ayliffe , If Lands be leased to me , my Wife , and William my Son , whereas his Name is John , it is void as to the Son for the Misnomer , but if he had said Son , without more , it had been good to the Son : and so here if he had not mentioned any Assignment , then the Daughter should have had it ; but contrary by the words of the Assignment . Clench , The intent of the parties is to be considered : As if I grant to you Common within my Manor of D. it shall be construed to be within my Lands commonable , and not in my Orchard : And here it shall be intended those Children which he shall name when the sealing was ; and if he name others after , it shall be void ; as a Lease to you , and to her who you shall take to wife , is void , for there ought to be such a person at the time of the commencement of the Deed , which might take . And the Opinion of the whole Court was , That the Defendant , who claimed by the Executor , should have the term , and not the Plaintiff who claimed by the Daughter , and therefore Iudgment was entred , that the Plaintiff nihil capiat per Billam .

Pasc. 24 Eliz. CLIX. The Countess of Sussex and Worths Case .

IN 4 and 5 Phil. and Mary , 1 Leon 35. ● 3 Leon. 132. Co. 6 Rep. 33. Fitz-williams Case . a private Statute was made by which the Manor of Barnham was assured to the Countess of Sussex for her Ioynture . Proviso that it should be lawful for the Earl of Sussex to make a Lease , or Leases for 21 years . The Earl made a lease for 21 years , and afterwards he made another lease for 21 years , within a year before the first lease ended and the second lease was to begin at the end of the first lease , and if the second lease was good , and within the intent of the Act , was the question . Popham Attorney , That it was not : 1. Because it is to begin at a day to come . 2. Because it is made during the first lease . But it may be objected , that it is said ( lease or leases ) : It is not the sense of the Act , for by it he might only make leases in possession , and not in futuro , and so he might make a lease for 21 years , to begin after his death , which should be a great prejudice to the Countess , and against the intent of the Act , which was made for her advantage . The Lord Treasurer and W. Mildmay had a Commission to make leases for 21 years of the Lands of the Queen , because the Queen should not be troubled with it : They could not make leases but in possession only by virtue of their Commission ; but all others which exceed 21 years , and in Reversion passed by the hands of the Attorney of the Queen , and not by them only by their Commission . 2. Because he cannot make a lease upon a lease , for by the same reason that he might make one future lease , he might also make 20 leases in ruturo , and so make void the Act : It was Marshals Case upon the Statute of 1 Eliz. of leases to be made by Bishops . The Bishop of Canterbury made a lease for one and twenty years , and afterwards he made another Lease for 21 years to begin at the end of the first Lease . It was holden that the second Lease was not good . Leases by spiritual persons , as Bishops , &c. But in the great Case upon that point in the Exchequer Chamber , there the second Lease was in possession , and to begin presently , and ran with the other ; and therefore it was adjudged a good Lease , because the Land was not charged with more than with 21 years in the whole ; and if it had been so done here , it had been good . Wray said that if the second lease had been made two or three years before the expiration of the first lease , then clearly it had been void , but because , but one , two , or three days , or a month before , he doubted if it should be void , or not . The Statute of 32 H. 8. Leases made for one and twenty years to be good from the day of the date thereof , and one makes a lease to begin at a day to come , and by two of the Iustices of the Common Pleas it is good ; but the two other Iustices held the contrary . Clench Iustice , There is no difference , if it be by one Deed or several Deeds ; and therefore he held , that if the Earl had made a lease for one and twenty years , and within a year another , it is a void Lease , whether it be by one Deed or two Deeds , for he exceeds his Authority : And so in the principal Case ; If there had been no Proviso , he could not have made any lease , therefore the Proviso which gave him Authority ought precisely to be performed . At another day it was argued by Daniel for the Lessee in Reversion to begin at a day to come , and by him words only are not to be taken or considered in a Statute , but the meaning of them , and they are not to be severed : Also Statute Law is to be expounded by the Common Law , and by the Common Law if one give Authority to another to make leases of his Lands , he may make leases in Reversion , because an Authority shall be taken most beneficially for them for whom it was given . So if one grant an Authority to make Estates of his Lands , by that general word , he may make leases for years or life , or gifts in tail , Feoffments , or other Estates whatsoever . If one gives a Commission to another to make leases for One and twenty years of his lands , he may make a lease in Reversion : and that Case was in the Duchy between Alcock and Hicks . Leases . 2. It is good by Statute Law : For the Statute of Richard 2. which gives Authority to Cestuy que use , to make leases , he may thereby make leases in Reversion . The Statute of 27 H. 8. which gives Authority to the chief Officer of the Court of Surveyors to make leases , if it had stayed there he might have made leases in Reversion , but the said Statute goes further , and says , Proviso that he shall not make a lease in Reversion , vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leases to be made by Husbands of the lands of their Wives by the general words of the said Statute , they might make Leases in Reversion . But the Statute goes further Proviso , that there shall not be any former Lease in being above 21 years before the making of the said Leases . In all Cases of Statutes which are with Provisoes , the Law upon them shall be taken generally , if not in such particulars which are restrained by the Proviso , as here , the Proviso goes to the ancient Rent to be reserved , that the Countess shall have remedy against the Lessees for the said Rent , &c. therefore it is at large in all other points but in these : As if the Wife be within age , and she and her Husband joyn in a Lease , yet this Lease is good by the Statute of 32 H. 8. because the Law is general , and doth not restrain these Imperfections expresly : So a Feoffment in Fee with warranty , Proviso that he shall not Vouch ; yet that is a restraint as to the Voucher only , and he is at large to Rebutt or have warrantia Chartae : A Lease for life , Proviso he shall not do voluntary waste , he is at large to do other waste , but otherwise it were if there were no Proviso . Therefore a Proviso makes the words precedent to be expounded more liberally . The words of the Statute of 33 H. 8. cap. 39. of Surveyors , which gives authority to the chief Officer to devise , set , or let for 21 years , he might have made a Lease for 21 years in Reversion , if the Proviso had not been . But the words of the Act in our Case are demise ; demises therefore shall be taken most liberally . 3. As to the intent of the Act , this Lease is within it , for the intent is to be collected out of the words , and shall not be drawn to any private intent against the words which should be done here ; for by such Exposition the Earl , his Heirs , Executors , &c. should be prejudiced , and the Countess only should be benefited : Also Remedy is given to the Countess by this Act against such Lessees , that she should have the Rent by Debt or Distress , as it she had been party or privy , therefore it is reason via versa , that they have remedy against her for their Leases : Also he said that the same remedy should be for them as against the Earl himself if he had lived , therefore they shall have remedy against her , who might have had it against the Earl in his life . Also the Statute is to be expounded according to the words , where such Exposition is not rigorous nor mischievous . Also private Laws are to be expounded by the Letter and strictly , as the Deed of the party , as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor , calling to him one of the Iustices , might award a Subpoena between A. and B. and end the matter between them ; there , by all the Iustices but Littleton , he shall not award a Subpoena general , but a Subpoena making mention of the Act , for he shall pursue the particular Act strictly , and a common Act for the common profit shall be construed largely . Also a Statute shall not be construed largely by Equity to the overthrow of an Estate ; as the Statute which gives , That if a Woman consent to a Ravisher , that the next Heir shall enter , if the Daughter entreth , and afterward a Son is born , he shall not put out the Daughter , because the Statute shall not be drawn to a private intent to the overthrow of an Estate vested before lawfully in the Daughter : Therefore neither in our Case the Act shall not be drawn to a private sense for the benefit of the Countess to overthrow the Lease for years ; and it is not like to the Case which hath been put : If he make a Lease for twenty years , and for other twenty years , the same is not good by the Act , which Case I agree , for that is a Lease for forty years . Egerton Solicitor contrary : 1. As to the word Demise from dismission , the same is nothing else but a letting of the Land . Lo Lease is from ( Laiser ) a French word , and such a Demise at a day to come is an Interest of a Lease , and not a Lease it self , for he hath not let the Land : As if I say , I let you my Land for 21 years : When shall you have my Land ? Shall you have my Land at a day to come , or presently ? If I fell you Land , and Covenant that it is discharged of all other Incumbrances than Leases for 21 years , and there is a Lease to begin afterwards for 21 years . I have broken my Covenant . If I am bound to make you a Lease for 21 years , and I say to you , I make a Lease to you to begin 200 years after , I have forfeited my Obligation . If the custom of a Manor be that Dominus pro tempore may make Leases for 21 years , may he make a Lease to begin 20 years after ? Truly not , if there be not a Special Custom to make it good . If I give authority to my Steward to make Leases of my Lands for 21 years , he cannot make a Lease to begin at 100 years hereafter . As to the Case of the Duchy , there the Condition is that he shall make Leases according to his discretion , therefore there he may make such Leases as he pleaseth . As to the Statute of Richard 2. which enables Cestuy que use , it is not like to our Act or Statute , for that is , that Feoffments , Estates , &c. therefore he may make such Leases without doubt . If I devise that my Executor shall make Leases of my Lands for 21 years , he cannot make a Lease for to commence 100 years after ; and if they do not make them within convenient time , the Heir shall avoid their Authority : So the Statute Law hath such Exposition that the precise time ought to be observed , as the Statute of 14 E. 3. Cap. 18. 1. Receit to Voucher , 8. If the Tenant vouch to warranty a dead man , and the Demandant will aver that the Vouchee is dead , or that there is none such , there the Averment shall be received without more delay . Vpon that Statute the Case in 21 E. 3. where one vouched to warranty , and a Summoneas ad Warrantizandum issued , and then came the Demandant , and would have averred that the Vouchee is dead , the Tenant said he ought to aver the same upon the Voucher to warranty , and that now he had surceased his time to take advantage of the time ; and the Demandant said , That the Statute did not bind him to that , nor prescribed any time , but left the same generally , yet by the Court it was awarded that he should have the Averment the time of the Voucher , or not at all . So the Statute of 11 H. 7. cap 20. If a woman who hath a Ioynture for life or in Tail , and suffers a Common Recovery , according to the Statute of 11 H. 7. cap. 20. and afterwards the Issue in Tail , releaseth all his right by Fine and dieth , his Issue may enter , for the assent ought to be by Voucher in the same Action , and the like , for if there be a mean instance between the Recovery and the Assent , then any Assent after is nothing to the purpose ; for the Recovery being once void by the Statute , it cannot be made good by assent afterwards , Vide Dr. & Student 54. and yet the Statute saith , Provided that the Act shall not extend to any such Recovery , Discontinuance , &c. if the next heir be assenting to the same Recovery , &c. so as the same Assent or Agreement is of Record or enrolled ; and doth not say , If the Assent ought to be at one time , or at another . But to come to Leases upon Statutes . Before the Statute of 2 E. 6. cap. 8. if Leases were not found by Offices , they should be ousted and put to their Traverse . But put case that after that Statute a Lease to begin at a day to come is not found by Office , shall it be aided by that Statute ? No truly , and so it is holden in the Court of Wards at this day . And the Lord Chief Iustice of England so held in his Reading at Lincolns Inn : The Statute of 1 Eliz. of Leases to be made by Bishops is , that Leases other then for 21 years from the time that they begin , that is , when they take effect as a Deed , and when they take effect not to be executed ; for so they might make infinite Leases : Quaere the further part of Egertons Argument in this Case ; And vide in Cooks 1 part of his Reports , where this Case is reported to be adjudged ; that the Lease made in Reversion by the Earl was a void Lease .

Mich. 29 Eliz. In the Common Pleas.

DEbt brought upon an Escape in L. the Defendant said , That he suffered him to escape in C. by the commandment of the Plaintiff , without that , that he escaped in L. It was holden to be no Plea. But in an Action upon a false imprisonment in L. he may justifie , That he was Sheriff of C. and took him by force of a Writ , without that , that he imprisoned him in L. Rodes Iustice . One brings an Action upon an Escape in L. and in truth he never was in L. after the Escape , in an Action he shall recover . Periam and Rhodes , Where the matter of Iustification is tied to a place there the place is traversable . And Rhodes said , There was a Case adjudged , in an Action , by Davage , against the Mayor of Lynn , where the Defendant justified as a special Iustice within the Town , and traversed the place alledged by the Plaintiff .

Mich. 29 & 30 Eliz. In the Kings Bench. CLXI . Scot and Scots Case .

Common Recovery . 2 Leon. 128. 3 Leon. 225. 1 Cro. 73. GEorge Scot the Elder sued a Replevin against George Scot the Younger : The Case was this , One Georgo Scot 20 H. 8. being Tenant in Tail of certain Lands , suffered a Recovery to the use of his last Will , and 25 H. 8 by his Will declared . That he willed that the Recoverers make a good and favourable Lease to Hugh Scot his younger Brother , and 25 H. 8. they make a Lease to Hugh Scot for ninety nine years , reserving 11 l. 5 s. 8 d. rent payable at the Annunciation and Michaelmas by equal portions , and that to the Recoverers , their Heirs and Assigns . And further it was covenanted , that after the death of the Recoverers , the rent should be paid to Cestuy que use , and his Heirs and Assigns , any thing in the Indenture to the contrary notwithstanding . Proviso that if the Lessee make his Heir-male his Assignee of the Term , that then he pay the rent to the Recoverers , their Heirs and Assigns , and he did not pay the rent to the Heirs of Cestuy que use , and thereupon was a Distress and a Replevin . Drew argued for the Plaintiff ; and first he spake to the performance of the Condition , and when a Condition is created , the Law says it shall be taken favourable for him who is to perform it , Conditions . as 3 H. 7. One is to make Appropriation of such a Church , and he grants a rent out of it , and then makes the appropriation , it was holden that he had performed the Condition . So 27 H. 8. a Lease upon condition to scowre the Ditches ; if he once doth it , it is sufficient , and he cited another Case out of 37 H. 6. As to the creating of a condition , there are some words which are conditional of themselves , as in Litt : Ita quod , sub conditione , Ad effectum , 38 H. 6. 34. in Case of the King : In some Case ( Pro ) makes a condition , in some Cases not . Proviso also sometimes makes a condition , sometimes it is taken for the enlargement of an Estate , 45 E. 3. 8. One had the ward of Land , and of the Body , and granted the same to W. P. his Servant , Pro bono servitio , and he departed from his service , the other may enter in the wardship and land therefore , ( Pro ) makes a condition . 41 Eliz. One granted an Annuity to another Pro concilio inpendendo , if he doth not give counsel , the Annuity is forfeited for he hath no means to compel him to give counsel , and therefore it is a condition : But in some cases ( Pro ) doth not make a condition , as if before the Statute of Quia emptores terrarum , one makes a Feoffment of lands pro homagio suo , there if the homage be not done , he may distrain for it . 9 E. 4. 21. Where Tythes are exchanged for Annuity , or Annuity for Tythes , there it is not a condition . ( Si ) in the Case of Colthirst is a condition , in some other Cases no condition . ( Proviso ) in our Case doth not make a condition . 7 H. 6.44 . A man made a Feoffment with warranty , Proviso semper , that he should not vouch him nor his heirs . So a grant of a rent , Proviso that he shall not charge his person : these are not conditions but foreprises . 9 H. 6. a Lease was made without impeachment , Proviso that he should not do voluntary Waste ; this Proviso went to a Covenant , and not to the overthrowing of the Estate . So if one granted a Manor , Proviso that his grant shall not extend to a Wood upon the Manor , the same is not a condition but a foreprise or exception . 35 H. 8. Br. Conditions 195. Note for Law , Proviso Condition . That Proviso semper put on the part of the Lessee , upon the words of the Habendum , makes a condition , but contrary of a Proviso on the part of the Lessor ; As it is covenanted after the Habendum and after the Reddendum , that the Lessee shall scowre the Ditches , Proviso that the Lessee carry the Dung to such a place or field , the same is not a condition to forfeit the lease for not doing of it . Contrary if the Proviso be put immediately upon the Habendum , which makes the Estate , or after the Reddendum . The Case 27 H. 8. of Martin Dockery is left at large . In 5 Eliz. there was a Case of one Etherel , where the Bishop of York made a lease for years reserving rent to him and his Successors , Proviso that during the time of every vacation , the rent should be paid to the Dean and Chapter of York , and it was not paid to them after the death of the Bishop , during the vacation : It was holden to be no condition , but a limitation . Also if the Proviso here shall be a condition , then it is a favourable lease according to the will , for a conditional lease is not a favourable lease . 2. Point . If it be a Condition ; yet the Plaintiff ought to recover the rent for which the demand shall be , where the Entry is only the moiety of an annual rent , and he demands the whole , therefore his demand is not good ; for if a Feoffment be pleaded made by one , and the Deed is shewed , by which it appeareth that it was made by many , although he was one of them , yet it is not good , nor warranted by it . Also the conclusion which they make doth destroy the whole , for it is , Et quia praedict. redditus was not payed , &c. Which was that ? the rent of the whole year , scil. 11 l. 6 s. 8 d. and that is false ; for if the moiety was paid , he had no cause to enter ; but by their conclusion , if all was paid but a penny , yet they might enter , and therefore the Rejoynder is not good . Cook contrary , for the Avowant : he said , It is a condition , and he put this as a general Rule , That where a Proviso is parcel of the sentence which contains Covenant , or abridgeth parcel of the Covenant , that it doth not make a Condition , but an Exception . As Litt. a rent granted , Proviso that he shall not charge his person , the same is not a Condition , because it abridgeth parcel of the Grant , and controuls the Sentence precedent . So 9 H. 6. Proviso that he shall not do voluntary Waste , for it abridgeth the first impeachment of Waste . So a Feoffment with warranty , Proviso that he shall not vouch , abridgeth parcel of the force of the warranty ; for by warranty he may rebut , vouch , or have Warrantia Chartae : Therefore there where it is parcel of the Sentence which contains Covenant , it is not a Condition : and that difference was holden and agreed in the Lord Mountjoyes Case . But in our Case there is not a qualification of the Sentence , or Covenant contained in the Sentence , nor participant at all with the Sentence , but it stands substantivè , for there was a full Sentence before , and therefore it is not parcel of it . Also it varies from the Sentence precedent in the person who shall pay the rent , and to whom it shall be paid , and therefore it is a new Sentence , and strange to the first : and it is not like to the Case of 9 H. 6. before , Br. Warranty , he shall not vouch , for there it controuls the precedent Sentence : But if I make a Feoffment in Fee with warranty , that he shall not vouch J. S. who is a stranger , there it is a Condition ; but if it is that he shall not vouch the Feoffor , there it is not a Condition . And the Case of the Bishop of York , was Pasc. 4 Eliz. Rot. 460. Com. Banc. he conceived , that during the vacation , the rent should go to the King , and therefore perhaps he especially limited it to be paid to the Dean and Chapter of York , and there the Proviso did not make a Condition : For although it was limited to be paid to the Dean and Chapter in the time of the vacation , with a Proviso , or by way of Promise , yet there it is a Condition , for all is one Corporation ; for the Dean and Chapter are part of the Corporation to whom it was reserved before for it was reserved before to the Bishop and his Successors . But 15 and 16 Eliz. Andrews and Cromwells Case , where John Blunt sold a Manor to Andrews , and his Heirs , and Blunt covenanted to suffer a Common Recovery for the better assurance thereof , and afterwards there was a Proviso , Provided always , That Andrews re-grant the Advowson which was appendant to the Manor to Blunt for his life ; and because there it stands substantivè by it self , therefore it was holden to be a Condition ; and yet truly it was not the meaning , that for not granting of a pelting Advowson , that the whole former Estate of the Manor being of great value , should be defeated ; yet notwithstanding , it was holden to be a Condition : and there also the Opinion of Br. 35 H. 8. is controuled , That where also the Opinion of Br. 35 H. 8. is controuled ; that where a Proviso is jumbled amongst Covenants , that it doth not make a Condition : Proviso never makes a Covenant , therefore , either the Sentence shall be void , or it shall be a Condition . As if a Lease for years be made , Proviso that the Lessee for years do not commit Waste , it is no covenant . He said as to the second point , that the same was adjudged between Andrews and Cromwel , where a rent was payable every half year , and there , as here , the whole rent was demanded , and it was good , for he is not to pay the one moiety ; and he is at his peril to pay the one moiety ; and he who denies the whole , denies every part ; Et quicquid dicitur de toto , dicitur de partibus . It was adjourned .

Hil. 29 Eliz. In the Common Pleas. CLXII . The Lord Mountjoyes and Barkers Case .

IN an Ejectione firmae upon a Special Verdict , the Case was this , King Ed. 6. granted the Manor and Hundred of Tremington in Fee , rendring rent , to hold of the Manor of East Greenwich in Socage , reddendo annuatim 136 l. Queen Mary reciting the first Grant ; in the first year of her reign , granted the rent and fealty and the Manors of Cauford , D. S. Et etiam Manerium nostrum , & Hundredum de Tremington ( although she had not the Manor ) to the Marquess of Exceter ; after which the Marchioness being seized of the Manor of Cauford holden in Capite , and of other Lands 4 and 5 Philip and Mary , devised the Manor of Cauford , D. S. and whereas she had nothing in the Manor of Tremington , but the rent and fealty out of it ; she devised the same with the others to the Lord Mountjoy : and also she devised divers Legacies and Annuities to her Servants and others . And devised by the same Will , that they should be levied of the Manor of Tremington , and of the Manors of D. S. whereas D. S. were not Manors but Farms . And one Barker was found Heir to the Devisor , who claimed to have the third part : The first question was . If the rent and fealty here holden in Capite , passed by the name of the Manor , or not ; and if they passed , what quantity passed . Walmsley , They do not pass by that name ; for this rent , nec in rei veritate , nec in reputatione , was ever taken for a Manor . Also she hath named it in her Will , between those which are very Manors , by which it appeareth , that her intent was not to pass it , unless it was a Manor , as the other , which sense is also fortified that they shall be levied , parcelled , and taken ; by which I conceive her meaning was , that there should be some place to which the Devisees might resort to levy it . Further , It is taken for Law in Wills ; that a thing implyed shall not destroy a thing expressed : But if by implication , the Rent should pass , then the Manor of Cauford should not pass , which was her express will to pass . As 16 Eliz. Dyer 330. where a man deviseth his Lands to one and his Heirs Males , and if he dye without Heir of his Body , &c. Here he shall not have Tail general to the Heirs of his Body , but to the Heirs males of his body , for that was the express limitation , and the other after but implication . So 16 Eliz. Dyer 333. in Chapmans Case : But our Case is better , for that there are not words sufficient to warrant any implication , for nec in veritate , nor in common speech was it ever taken for a Manor . 27 H. 6. 2. 22 H. 6. 39. Green Acre may pass by the name of a Manor , although it be but an Acre of Land , because it is known by such name . In 27 H. 8. a man having suffered a common Recovery to his use , willed that his Feoffees should sell , &c. So in Chapmans Case , a man in his Will limited a Remainder to his Family , there it is taken , the same is a Remainder to those which are his next of Blood. So 41 E. 3. a man deviseth Land to A. his Daughter , in truth she being a Bastard , she shall have it , because she is known by the name of Daughter . So if there be Grandfather , Father and Son , the Father dyeth and the Son gives Lands to his Father and his Heirs , the Grandfather shall have it , for that the Son so called him . 19 H. 8. Lands are devised to the right Heirs of J. S. who is attainted , having Issue a Son , the Son shall not have the Land , for the word ( Heir ) intends one who may inherit , but he cannot , because a man attainted cannot have an Heir : And that is a stronger Case than our Case , in which there is not any affinity with a Manor , for it is but a sum in gross , but if it had been an Acre of Land , peradventure it should have passed , but being Rent , Common , Estovers , or other Profits , they cannot pass , for they have not any resemblance to the Mannor ; but peradventure a man having a Manor parcel in Demesn , and parcel in Services if he alieneth his Demesns , and afterwards deviseth his Manor , the Services will pass . Gawdy , All the difficulty of the Case is this , If by the Devise , the rent out of Tremington shall pass , for if not , then the third part thereof cometh to Barker . And I conceive clearly , That the rent shall pass ; for Wills shall have a favourable construction according to the intent of the Devisor , and no part thereof shall be void , if by any means it may be made good ; for intent then appeareth , that something should pass out of the Manor of Tremington , for otherwise a Clause in her Will would be frivolous . For it is precisely found by the Iury , that neither at the time of the Will , nor at the time of her death , she had nothing of the said Manor of Tremington , but the said Rent of one hundred thirty and six pounds . Also it may be taken that she who devised was ignorant of the Law , and conceived that it was a Manor when she had Rents and Services out thereof , notwithstanding that , those who are learned in the Law know , that a Manor could not pass without there was two Suitors at the least , 21 R. 2. Devise 27. Lands are devised to one for life , the remainder Ecclesiae Sancti Andreae in Holborn , there it is holden in an Ex gravi Querela , that the Parson should recover , for otherwise the Devise should be void , if the Parson should not have the Lands ; and in Wills , shall subserve and give place to the intent of the Party ; and therefore if a man deviseth , that his Lands shall be sold for the payment of his debts , his Executors shall sell them , and to that intent the naming of them Executors is sufficient . Plow . Com. 523. in Weldens Case it is vouched to be adjudged ; that if one after the Statute of 27 H. 8. deviseth that his Feoffees shall be seized to the use of A. in Fee , that it was a good Devise of the Lands to A. and yet then he had not , nor could have any Feoffees , &c. But the Party was ignorant of the Statute , and his intent to pass the Land was apparent , in that Case the words were as much impertinent to the matter , as in our Case , for there he had not any Feoffees , as here she hath not any Manor . Br. recites , That in 38 H. 8. it was holden by Baldwin , Shelly , and Morgan , that if a man who had Feoffees to his use would , after the Statute of 27 H. 8. that his Feoffees should make an Estate to J. S. that the Land should pass to J. S. 26 H. 8. Feoffments & Faits 12. Land cannot pass by the Deed of an House , for it cannot be parcel of an House ; but an Acre of Land may be given by the name of a Carve , and a Carve of Land by the name of a Manor ; and yet a Carve can be no more a Manor , than this rent : yea , Rents and Services more resemble a Manor , than a Carve of Land . It cannot be intended that her Will was here to pass the Manor it self , which was not in her , but in another . Also she by four years before had the rent , and therefore it shall be intended , that it was her meaning to pass the same , which she her self received , and no other thing : and although in the Devise the rent be specially named , and the Manor also yet the same shall not alter the Case ; for if a man grant the Reversion upon an Estate for life , and by the said Deed grants the Land , and the Tenant attorns , and the Grantee deviseth all his Land , the Reversion shall pass without all question . If a man grant the Advowson of D. and in the same Deed , the Church and Rectory of D. and the Grantee deviseth the Rectory of D. the Advowson shall pass . In Adams Case , Plow . Com. 195. a man leaseth his Capital Messuage rendring rent , there the question is , If the Reversion or Rent shall pass : It was adjudged , That all which he had passed . As to that , that it cannot be levied out of the Rent , for that no place is therein of Distress ; I say , that she did not know whether a lesser rent might be paid out of a greater rent , and 1 H 4. Multure was granted reserving rent , and the Grant was good . The words of the Will are , All which Manors , Lands , and Tenements , &c. she devised to the Lord Mountjoy , and these words expound her meaning , for although the word ( Rent ) be not within the word ( Manor ) yet the words ( Lands and Tenements ) do comprehend it , and words subsequent in Wills may express the Premisses . As 16 Eliz. Dyer 333. Chapman seized in Fee of two Houses , having three Brothers , devised the House in which A. inhabited to his three Brethren , and A. to dwell there , and they not to raise the rent , and devised the House in which B. his Brother dwelt to him , and that he pay to C. his Brother 3 l. for to find him at School , and otherwise to remain to the House ; Proviso that the Houses shall not be sold , but shall go to the next of the Name and Blood which are Male , and dyed . B. his brother dyed without Issue , the eldest of the two middle brothers entred , and had Issue a Son and dyed . It was a Question , If the Son or the middle brother should have the House : And it was holden that the Son of the eldest should have it in Tail , which Exposition was by reason of the words in the Proviso , that it should not be Sold , and that it should go to the Heirs Males . Shuttleworth , The rent shall not pass by the Devise , for the construction of a Will ought to be according to the words , or according to the intent collected out of the words , and not by a thing out of the Will ; for then a stranger shall be the maker of the Will of another : And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to pass , it ought to have apt words , and not the name of a Manor . And thereupon he put the Case , that where one deviseth certain Lands to one , and afterwards his Goods , Leases , and other things to another : All his Goods and Terms shall pass , but not his Lands , for that there wanteth apt words to pass them , for the word ( other things ) shall not pass them , and this set order ought to be observed , for the avoiding of confusion : And the Rent and Services shall not pass for the two parts , admitting the words sufficient , for they cannot be divided : But Periam said , That the rent might be divided . Anderson said , That it should be but a Rent-seck : Periam said it was a Rent distrainable of Common Right , but Anderson doubted of it ; but they all agreed that it might be divided , but there should not be two Tenures . Fenner , The Rent should pass by the Devise of the Manor , for there is do difference betwixt a Manor and a Seigniory in gross amongst Lay-men ; and then their intent shall be taken , although it was not written by apt words ; for in Grants a Reversion shall be taken for a Remainder , and à Fortiori a Devise . And 7 E. 3. a Manor shall pass by the name of a Knights Fee ; and 19 H. 8. a Wood shall pass by the name of Land , and 38 E. 3. by grant of totam terram which A. held in dower , the Reversion shall pass . Afterwards in Mich. Term the Plaintiff discontinued Action . And Periam told me , I being at his House , that the Opinion of the Court was against the Plaintiff , and if it had not been discontinued , they would have given Iudgment accordingly : Now this was the intent of the Lord Mountjoy . The Marchioness had devised all her Lands , and had not left any thing to her Heir , for which Case the Heir of the Marchioness entred into the third part of the Manor of Cauford ( of which the Lease upon which the Ejectione firmae was brought , was made by the Lord Mountjoy to Insley ) and into the third part of the residue of the whole land , now his meaning was , That if the rent was not well passed by the name of the Manor , then the same descended to the Heir , which was sufficient for him : For the Special Verdict found also , That the rent was the third part of the value of the whole Land of the Marquess : So that thereupon it may be collected , That if a man hath three Manors , some of them holden in Capite , and of equal value , and he deviseth two of them , and suffereth the third to descend , that the Devise is good for every part of the two Manors , and the Heir shall not have the third part of each Manor .

Pasc. 28 Eliz. In the Common Pleas. CLXIII . Spring and Lawsons Case .

ONe recovered in an Ejectione firmae , and afterwards the Defendant made a new Lease for years , and he who recovered ousted him , and he brought an Ejectione firmae : and the other pleaded the former Recovery . It was holden a good bar by all the Iustices , but Windham and Periam , and by them the same is no Estoppel , for the Conclusion shall be Iudgment if Action , and not Iudgment if he shall be answered : And although that it be an Action personal , and in the nature of a Trespass , yet the Iudgment is quod habeat possessionem termini sui , during which Term the Iudgment is in force , it is not reason that he should be ousted by him against whom he recovered , for so Suits should be infinite ; and by Rhodes an Entry pendent the Writ shall abate it .

CLXIV . Hil. 29 Eliz. In the Kings Bench.

AN Action of Covenant was brought against one who had been his Apprentice ; The Defendant pleaded that he was within age : The Plaintiff maintained his Action by the Custom of London , where one by Covenant may bind himself within age : Exception was taken to it , that that was a Departure : For 18 R. 2. an Infant brought an Action against his Guardian in Socage , who pleaded that the Plaintiff was within age . The Plaintiff did maintain his Declaration , That by the Custom of such a place an Infant of 18 years might bring accompt against his Guardian in Soccage , and it was there holden to be no departure . Wray Chief Iustice was of Opinion , that it was no departure ; for he said , It should be frivolous , to shew the whole matter in his Declaration : viz. That he was an Infant , and that by the Custom he might make a Covenant which should bind him . But Quaere of the Matter , and of his Opinion , for that many learned Lawyers doubted much of it . And vide the Case in 19 R. 2. of the Guardian in Soccage .

Mich. 29 & 30 Eliz. In the Kings Bench. CLXV . Savage and Knights Case .

ERror was brought upon a Iudgment given in Leicester in Debt ; Tanfeild assigned Error , because in that Suit there was not any Plaint , for in all Inferior Courts the Plaint is as the Original at the Common Law , and without it no Process can Issue forth , and here upon this Record nothing is entred ; but only that the Defendant Summonitus fuit , &c. and because the first entry ought to be A. B. Queritur versus C. Clench , a Plaint ought to be before any Process issueth ; and the Summons which is entred here is not a Plaint , and for that Cause the Iudgment was reversed : It was said , That after the Defendant appeared , a Plaint was entred : But it was answered , That that did not help the matter , for there ought to be a Plaint out of which Process shall issue , as in the Soveraign Courts out of the Original Writs .

28 Eliz. In the Common Pleas. CLXVI . Grindal Bishop of Yorks Case .

GRindal Archbishop of York made a Lease for one and twenty years , another Lease for years of the same Land being in being , not expired by four years and dyed ; and in time of vacation , the Dean and Chapter confirmed it . Clench , It is a good confirmation : A Bishop makes a Lease for years , reserving the ancient rent but where it was payable at four Feasts of the year , it is now reserved payable once in the year , the same is within the Letter of the Statute , but not within the intent ; the same Law , if the Rent before was usually reserved to be paid upon the Land , now it is reserved to be paid at any far remote place . And he said , that although his lease was in possession , yet not to take effect before the four years of the former Lease are expired , cannot be said an Estate within the Statute of 1 Eliz. whereby any Estate may pass before the commencement of it ; for he to whom it was made , had but a right to have the Land ; and he could not surrender . And he held that the second Lessee should pay the rent as well by the Contract as by the Estoppel . Periam , At the Common Law a Bishop , with the Confirmation of the Dean and Chapter , might have made a Feoffment Gift in Tail , and a Lease for any Term of years ; and he spake much , What shall be said the Possessions of a Bishop : And therefore , if a Bishop disseiseth another of certain Lands , and makes a Lease thereof under the Seal of his Bishoprick , it shall be now his Seal and it shall be his election in what capacity he will take , and then this Land is to be reputed parcel of the Possession of his Bishoprick .

Mich. 29 Eliz. In the Common Pleas. CLXVII . Hoo and Hoes Case .

JOhn Hoo brought a Writ of Intrusion against Richard Hoo , depending which Writ , the Demandant prayed Estrepement , and had it , and declared upon it , scil. That the Tenant after the Prohibition fecit Vastum , Estrepementum , in prosternendo , &c. To which the Tenant pleaded , Not Guilty : But the Plea was not allowed by the Court , for there is no Issue in this Case ; but he might to plead Quod non fecit vastum , &c. after the Prohibition .

29 Eliz. In the Common Pleas. CLXVIII . Clinton and Bridges Case .

DEbt ; The Condition was for performance of an Award , which was to pay 10 l. to the Plaintiff , and to do divers other things : The Defendant pleaded Quod perimplevit Arbitrium , and shewed how the Plaintiff assigned for a Breach , that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff , and he refused it . It was the Opinion of Dyer , that the same is a Departure , for in the Bar , the Defendant pleads that he hath performed the Award , and shews how ; and now in the Rejoynder a Tender and Refusal , which is not a performance of the Award , although it is not any Breach of it .

29 Eliz. In the Exchequer . CLXIX . The Bishop of L's Case .

Tenures . THe Case of the Bishop of L. the King Lord , Mesne and Tenant , the Mesnalty is holden in chief , and the Tenancy by Knights Service ; the Manor escheats by Attainder : If the Tenancy should be holden in Chief was the question . Manwood , It hath been holden , that no Tenure in Capite may be , if not by the creation of the King : And he said , that if before the Statute of Westminster 3. the Kings Tenant in Capite had made a Feoffment to hold of him , so as now there is Lord Mesne and Tenant ; and afterwards the Mesnalty came to the Crown by Attainder , &c. If by the coming of the Mesnalty to the Crown the Seignory Paramount be extinct , then the Tenancy is not holden in Capite ; but they have taken a difference where the Mesnalty comes to the Seignory , and where the Seignory comes to the Mesnalty . But he said it was a good Case .

29 Eliz. In the Exchequer . CLXX . Pigotts Case .

Assignment of Debts to the King. PIgott Collector of the Subsidy granted by Parliament holden 28 Eliz. and by reason thereof endebted to the Queen , ( one B. being indebted to him ) assigned the said debt to the Queen for parcel of her debt : upon which Process issued out against B. and now , at the return of the Process , Cooper Serjeant , moved in the behalf of B. that the Assignment was not good . 1. There was no such Parliament holden 28 Eliz. 2. No assignment of Debt to the Queen is effectual , where the Goods and Lands of the Queens debtor are sufficient , but here constat de claro , that Pigott is sufficient : As to the matter of the Parliament , the truth is , that the Parliament was begun in October 28. But no Session was then holden , but it was adjourned to Newbury 29 Eliz. But if a Session had been holden , one ought to say it was Prorogued . Fenner , There is not any Authority in our Law for such assignments of Debt to the Queen . Manwood , The Parliament is October 28 Eliz. and so is the Roll , and the Record of the Parliament : The Writs of Parliament were returned in October 28 Eliz. But then the Queen adjourned the Parliament ; for there was no Session : and although it was adjourned , yet the first day of the Parliament was in October : And such was the Opinion of all the Iustices .

29 Eliz. In the Exchequer . CLXXI. The Queen and Paynes Case .

AN Information was exhibited against Payne Treasurer of the Records in the Kings Bench , Priviledge . upon the Statute made against the buying of Cattle , and he came and demanded Priviledge . Manwood , It hath never been seen , that such Priviledge hath been granted against the Queen , Vide 21 H. 6.22 . in a Decies tantum . by the better Opinion the Party shall have the Priviledge . Some said that this is not like to the Case where the Queen only is Party , for in such Case Attaint doth not lye against the Iury which have found for the Queen ; contrary where the Suit is tam pro Domina Regina quam , &c. Manwood , The Law is not so , for an Attaint lyeth where the Queen alone is Party . Tanfield , who was of Counsel with Payne , shewed to the Court a President 29 Eliz. where one tam pro Domina Regina quam , &c. prosecuted a Suit in the City of Oxford , upon a penal Statute , and the Defendant claimed the Priviledge of the Common Pleas , being an Officer there , and by the Award of the Court , the Priviledge was allowed him . Manwood , The Suit upon the penal Statute was in an Inferiour Court. But shew to us a President where the Courts are equal .

CLXXII . Mich. 30 Eliz. In the Common Pleas.

A Poor man was ready at the Bar to wage his Law ; and upon examination it was found , that the Defendant was indebted to the Plaintiff ten pounds , to be paid at the Feast of Christmas ; and that upon communication between them it was agreed , that the Defendant should pay to the Plaintiff at the said Feast 5 l. in satisfaction of all the Debt due to the Plaintiff ; and as to the other 5 l. that he should be acquitted of it : Vpon this matter the Iustices were clear of Opinion , that the Defendant ought not to be admitted to wage his Law , for notwithstanding that bare communication , the whole Debt remained due not extinguished by the communication ; for 5 l. cannot be a satisfaction for 10 l. but contrary of a collateral thing in recompence of it , &c. And satisfaction and agreement , to pay 5 l. before the said Feast of Christmas in satisfaction of the whole 10 l. Vpon such matter shewed , the Court was of opinion , that the Defendant might be admitted to wage his Law.

CLXXIII . Mich. 30 Eliz. In the Common Pleas.

IN a Replevin , the Defendant avowed for damage feasant : Vpon which Issue was joyned and found for the Advowant : and Damages assessed , and a Retorno Habendo issued , upon which the Sheriff returned Elongata : upon which a Withernam was awarded . And now the Plaintiff came into Court , and tendred in Court the Damages assessed by the Iury , Withernam . and prayed a stay of the Withernam , and cast the mony into Court. But the whole Court was clear of Opinion for the stay of the Withernam upon that matter only : because in this Case the Plaintiff ought to be fined , Fine for Contempt . because he had essoigned his Cattel , which is a contempt , wherefore the Court assessed a Fine upon him of 3 s. 4 d. and then the Plaintiff had his prayer and request .

Mich. 37 Eliz. In the Common Pleas. CLXXIV . Germies Case .

2 Leon. 119. 1 Leon. 87. Assets . IN Debt upon an Obligation against A. as Executor , the Case was , That the Testator of A. by his Will appointed certain Lands , and named which should be sold by his Executors , and that the mony thereof arising should be distributed amongst his Daughters , when they had accomplished the age of one and twenty years ; the Lands are sold accordingly , and if the monies thereof coming being in the hands of the Executor , should be Assets to pay the Debts of the Testator , was the question . It was the clear Opinion of the whole Court , that it was not Assets , for that that mony is limited to a special use .

CLXXV . Mich. 29 Eliz. In the Common Pleas.

Alien Purchaser . THis Case was moved to the Court ; An Alien purchased Lands in Fee , the Queen confirmed them to the Alien , &c. Office is found , if the Confirmation should bind the Queen was the Question . Some conceived it should : For by Anderson Chief Iustice , when an Alien is enfeoffed , he takes by the Livery the Fee-simple , of which he shall be seized until Office found , and a Praecipe quod reddat lyeth against him . Fenner , An Alien and Denizen Ioyntenants are disseized , they shall both joyn in an Assize , vide 11 H. 4.26 . And he said that the wife of the King takes a Husband being an Inheretrix , they have Issue , Office is found , the Husband shall be Tenant by the Courtesie , which see 33 E. 3. Fitz. Traverse 36. It was argued on the other side , That the Estate of the Alien is so weak , that a confirmation cannot enure upon it for an Alien cannot take , but to the use of the King , and cannot be infeoffed to anothers use , and if he be , such use is void . For there is not a sufficient seisin in an Alien to carry an use . And it hath been adjudged on Forset Case : Where an Alien and the said Forset were Ioynt-Purchasers , and the Alien dyed , that Forset should not have the whole by Survivour , but that upon Office found the Queen should have the moiety , Vide 11 Eliz. Dyer 283.

Mich. 30 Eliz. In the Common Pleas. CLXXVI . Jermine and Arscots Case .

THe Case between Jermine and Arscot was this : A seized of Lands in Fee , had Issue six Sons and one Daughter , and devised the Manor of , &c. parcel of his said Lands to J. S. for ninety years , if the said J. S. and G. his Wife , or any of them should so long live , the remainder to P. his eldest Son , and the Heirs males of his Body , the remainder to his other Sons in tail , the remainder to his Daughter . Provided , That if the said P. his Son , or any of the Sons of the Devisor , or any of the heirs males of their bodies , should endeavour by any Act or Thing to alien , bargain , or discontinue , &c. that then after such attempt or endeavour , and before such Bargain and Sale , &c. were executed , that the estate of such Person attempting , should cease , as if he were naturally dead , and that then the premises should remain and come to such person to whom the same ought to come , remain , or be by the intent and meaning of his Will , and died : P. levied a Fine of the Manor , he in the next remainder entred , and claimed the Land by force of the Devise . This Case was this Term argued by Walmesly Serjeant , that an Estate tail cannot cease , for it is an Estate of Inheritance ; and here is not any limitation , for the Estate tail by the meaning of the Devisor shall remain revivable upon the death of the Offender , but a Limitation determines the Estate utterly , which is not here : but here it appeareth as well by the meaning of the Devisor , as by the words of the Devise , that the Estate tail upon such act should be suspended , and it cannot be resembled to the Case cited on the other side 22 E. 3. A Rent granted to one in Fee , and that it shall cease during the Nonage of every Heir , the Rent is but suspended between the Parties and Privies to the Gift ; as in the Case of Littleton of Re-entry and Retainer quousque ; but that a Stranger should re-enter and retain quousque , that cannot be : And in the Case of Scholastica reported by Plowden , the Estate tail by such Offence is determined by the limitation : But in our Case by the meaning of the Devisor only suspended , so our Case is not like to that Case . Shuttleworth to the contrary ; The purpose of the Devisor appeareth to be , the continuance of the Land in the name and Family of the Caries ; and as to the difference of ceasing and suspending of an Estate tail , the same is not to the purpose , for the Tenant in tail himself may suspend his Estate tail , therefore à fortiori the Donor upon the Creation of the Estate tail : As by Littleton : Tenant in Tail grants totum statum suum , the Estate tail is thereby suspended ; and by Anderson , if in such a Case , after such a grant , Tenant in tail levy a Fine in our Case , If Tenant in tail offend : and the party to whom the next interest is limited enters , and after the Offender levies a Fine to a Stranger , there , although his Estate was determined by the offence , yet the Estate tail is bound by the Fine . Ad quod caeteri Justiciarii murmurabant . Tenant in tail hath Issue two Sons , the eldest in the life of his Father levieth a Fine , and after the Father dieth , the Estate tail is bound ; contrary if the Father had survived his eldest Son : And afterwards in the end of this Term Iudgment was given against the Plaintiff , for by the Will here is a good limitation , and an estate to cease upon an act , and upon another contingent to be revived , is good enough , Vide 30 E. 3. 7. A Lease for life rendring rent , and if the rent he behind , that the Lessor shall return quousque agreement be made ; so as a Freehold may cease and rise again according as the same is limited : And all this was agreed by Rhodes , Periam , and Windham ; and afterwards Walmsley for the Plaintiff , took an Exception to the Bar , for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict. non habet exitum , and doth not say , that tempore quo ipse Henricus clamabat reversionem praedict. the said Peter had not Issue ; for he said if Peter had Issue , when Henry claimed the Reversion , nothing had vested on him by the said claim : But all the Court besides Anderson , said , that needed not be , but if the matter had been such , the same should come on the part of the Plaintiff . Also they said , That the Estate was vested in Henry without claim , and although after the Offence committed , and before claim Peter have Issue , yet Henry should retain the Land during the life of the Offender against such Issue born after the Fine levied : for by the Fine levied the Reversion vested in Henry without any claim by force of the said limitation .

CLXXVII . Mich. 30 Eliz. In the Common Pleas.

Alien suffers a common Recovery . 9 Co. 141. LAnd was given to an Alien in tail , the Remainder over to another in Fee , the Alien suffered a common Recovery , and died without Issue : All this matter was found by Office. It was moved , That this Office should have return , so as upon the matter , the Alien was not Tenant of the Land at the time of the Recovery suffered : But the whole Court held the contrary , and that the Recovery was good , and should bind him in the Remainder .

Mich. 30 Eliz. In the Common Pleas. CLXXVIII . Seixtbark and Percies Case .

EJectione firmae of Lands in Knolton and Woodland ; the Parties were at Issue , and the Venire facias was of Knolton only , and it was found for the Plaintiff . It was shewed in stay of Iudgment , that the Venire facias was not well awarded , for it ought to have been De vicineto de Knolton & Woodland , which was granted by the Court : And that that defect was not relieved by any Statute , for it is a Mis-trial , and for that cause Iudgment was stayed , and a Venire facias de novo granted .

30 Eliz. In the Common Pleas. CLXXIX . The Provost of Queens Colledge in Oxfords Case .

THe Provost , Fellows , and Scholars of Queens Colledge in Oxford , are Guardians of the Hospital , and Meason de Dieu in Southampton , and they make a Lease of Lands parcel of the Possession of the said Hospital to one Hagel for term of years by the name of Praepositus Socii & Scholares Collegii Reginalis in Oxonia Gardianus Hospitalis , &c. And in an Ejectione firmae upon that Lease , it was found for the Plaintiff . It was objected in Arrest of Iudgment , That this word ( Gardianus ) ought to be in the Plural Number ( Gardiani ) for the Colledge doth consist of many persons , and every one of them capable ; and not like to Abbot and Covent : The Court was all of Opinion that the Exception is not to be allowed , but that as well the Lease as the Declaration were both good , for the Colledge is a Body , and as one Person , and so it is as well Gardianus .

30 Eliz. In the Common Pleas. CLXXX . Greens Case .

AN Action upon the Statute of Huy and Cry was brought by Green : The Case was , Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the same from Bristol to London , in which journey the Servant was robbed : upon which matter the Master brought his Action . It was moved , That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a person able to bring this Action , because he was not examined twenty days before the Action was brought , but the Exception was disallowed , for the Court was clear of Opinion , that the Master should not be examined , but the Servant .

CLXXXI . 30 Eliz. In the Common Pleas.

THis Case was moved upon the Statute of 1 and 2 Phil. and Mary , cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford ; and Queen Mary by her Letters Patents made the said Town a County . And now a Distress was taken in the residue of the said Hundred , and brought into the Town of Coventry , and if that be within the Statute was the question . It was holden by the Court clearly , That now the Town of Coventry is exempted out of the Hundred aforesaid , and is a thing by it self , and it is a good challenge for the Hundred of Offley , that the Iuror challenged dwells in the Town of Coventry , for now it is not parcel of Offley as to the King : But as to the Lord of the Hundred , the said Town remains parcel of it , notwithstanding the Queens Grant. And the Citizens of Coventry shall do suit at the Court of the Hundred ; but in an Action upon the Statue of Hue and Cry of a Robbery committed in the residue of the Hundred , the Citizens shall not be charged .

25 Eliz. In the Common Pleas. CLXXXII . Dolmans Case .

A. Seized of a Mannor to which two parts of the Advowson was appendant , presented , and afterwards aliened the Manor cum pertinentiis , the Alienee presented and purchased the third part of the Advowson , and presented again one J. S. Chaplain to the Earl of Rutland , who had a dispensation , and took another Benefice , and was inducted 1 Eliz. and died 11 Eliz. The Queen presented for Lapse , and her Clerk was instituted and inducted , the Alienee Lord of the Manor died seized inter alia ; this Manor was allotted to the Wife of Dolman for her part ; and he brought a Quare Impedit . It was moved , If Dolman should not joyn in this Quare impedit with her who had the third part ; and by Walmsley , he need not , Vide 22 E. 4. 8. By Brian , If an Advowson descend to four Coparceners , and they make Partition to present by turns , and the third presents when the second ought , for that time his presentment is gone , but when it comes to his turn again , he shall present ; which proves that they are several Tenants .

CLXXXIII . Mich. 26 Eliz. In the Common Pleas.

ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint , in the nature of a Writ of Right : It was moved in the Common Bench , If a Precept may be made and awarded out of the said Court for the Execution of the said Recovery , and to put him who recovered in possession with the Posse Manerii , Posse Manerii & Comitatus differ . as in such Case at the Common Law with Posse Comitatus ; it was resolved clearly that force in such Cases is not justifiable , but by Mandate out of the Kings Courts .

Hil. 29 Eliz. In the Common Pleas. CLXXXIV . Anne Bedingfields Case .

DOwer was brought by Anne Bedingfield against Thomas Bedingfield ; the Tenant brought out of Chancery a Writ de Circumspecte agatis containing this matter , that it was found by Office in the County of Norfolk , that the Husband of the Demandant was seized of the Manor of D. in the County of Norfolk , and held the same of the Queen in Chief by Knight Service , and thereof died seized , the Tenant being his Son and Heir apparent , and of full age , by reason of which the Queen seized as well the said Manor as other Manors , and because the Queen was to restore the Tenements tam integre as they came to her hands , it was commanded them to surcease Domina Regina inconsulta : It was resolved , that although the Queen be intituled to have Primer Seisin of all the Lands whereof the Husband died seized , yet this writ cannot extend to any Manors not found in the Office , for by the Law the Queen cannot seize more Lands than those which are found in the Office , and therefore as to the Land found in the Office , the Court gave day to the Tenant to plead in chief . And it was argued by Gawdy Serjeant for the Tenant , that the Demandant ought to sue in the Chancery because the Queen is seized to have her primer Seisin . And cited the Case 11 H. 4. 193. And after many Motions , the Court clearly agreed , that the Tenant ought to answer over , for the Statute of B●gamis , cap. 3. pretends that in such Case the Iustices shall proceed notwithstanding such Seisin of the King , and where the King grants the Custody of the Land it self 1 H. 7 , 18 , 19. 4 H. 7. 1. à multo fortiori against the Heir himself , where he is of full age , notwithstanding the Possession of the King for his Primer Seisin , by the Statute of Bigam●s , where the Heir was of full age , there the wife could not be endowed in the Chancery : But now per Prerogativa Regis , cap. 4. Such women may be there endowed , si Viduae illae voluerint . And after many Motions the Court Awarded that the Tenant should plead in Chief at his peril , for the Demandant might sue at the Common Law if she pleased , Vide Cook 9. Part Acc.

CLXXXV . Savages Case .

ONe Savage was presented to a Benefice , and afterwards took another , and then purchased a Dispensation ( which was too late ) and then was qualified , and afterwards accepted of the Archdeaconry of Gloucester ; and Underhil , who had the Archdeaconry libelled against the said Savage in the Spiritual Court. Vide the Case reported in the first Part of Leonards Reports Sect. 442. Ideo Quaere there .

CLXXXVI . Pasc. 26 Eliz. In the Kings Bench.

HVsband and wife Copyholders for Life , the Husband surrendred to the Lord , who granted the Land over by Copy to a Stranger , the Husband dyed , the Wife recovered and entred , and surrendred to the Lord , and by Wray , the Stranger to whom the Lord granted it , after the Surrender by the Husband , should have the Land , and not the Lord himself against his own Grant.

Pasc. 28 Eliz. In the Common Pleas. CLXXXVII . Chomley and Conges Case .

CHomley brought Trespass of Assault and Battery made to his Wife against Cony , and upon the general Issue it was found for the Plaintiff : It was moved in Arrest of Iudgment , that the Action was not well brought , for the same being an Action of Trespass done to the person of the wife , the Writ ought to be brought and prosecuted in both their Names ; for now , if Iudgment be given for the Husband , and he dye before Execution , the Wife to whom the wrong was done should not have Execution , but the Executors of the Husband ; and afterwards upon advice the Plaintiff had Iudgment to recover , Vide Cont. 9 E. 4. 51. 38 H. 6. 25.

Pasc. 28 Eliz. In the Common Pleas. CLXXXVIII . Blithe and Colegates Case .

Vide this Case Reported by Cook 2 Part of his Reports . REplevin by Blithe and Colegate , who made Conusans as Bayliff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage feasant , and upon a Special Verdict the Case was , That the said Eliz. was seized , and took to Husband Christopher Kenne , and by an Indenture made by the said Eliz. without the assent of her said Husband , by the name of Elizabeth Beckwith , bearing date 14 March , 14 Eliz. declareth the uses of a Fine to be levied &c. 1. To the use of the said Elizabeth for life , without impeachment of Waste , and after to the use of the Conusees for their lives , and after to the use of the said Elizabeth and her Heirs : And that afterwards the said Christopher Kenne , before any Fine levied in Feb. 20 Eliz. by Indenture between himself and the said Elizabeth his Wife of the one part , and R. W. of the other part , without the consent of the said Elizabeth declared , that the uses of the said Fine so to be levied , should be to the use of the said Christopher and Elizabeth for life , &c. And afterwards the said Fine was levied by the Husband and Wife ; and the only Question upon the matter was if the uses declared by the Wife , or the uses declared by the Husband should stand . It was argued by Shuttleworth Serjeant , that the uses declared by the Husband should stand , and that the Declaration by the Wife should be rejected , for a Feme Covert is not sui juris , but is sub potestate v●ri . And therefore ●7 Ass. 17. a Feme Covert without her Husband acknowledgeth a Fine , the Husband shall avoid it ; and as to the Declaration of the uses , it is no other thing but the shewing of the meaning of the Parties to the Fine , how and in what manner the Land of which the Fine is levied , shall be disposed of by the Fine , but such a power cannot be in a Feme Covert : For if an Infant levy a Fine , and declare the uses by Indenture , the Declaration is void , and the Fine shall be to his own use , and that was adjudged in the Court of Wards : The same Law in case of a man of Non sanae memoriae : and if an Ideot levy a Fine , and declare uses upon it , the Declaration is void , and the Fine shall be to his own use , and that Case also hath been adjudged in the Court of Wards : And by intendment of the Law , every Wife is at the disposition of her Husband , as in a Praecipe quod reddat against the Husband and Wife , the Wife makes default , it shall be accounted the default of the Husband , for the Law intends that the Wife is ameanable by the Husband . 21 Ass. The Husband seized in the right of the Wife , made a Feoffment in Fee , and in making of Livery his Wife interrupts him , it was not any interruption or impediment quo minus the Livery operetur , for cui ipsa in vita contradicere non potuit , &c. So in a Praecipe quod reddat against the Husband and Wife , the Husband pleads one plea and the Wife another , the Plea of the Husband shall be admitted , 33 H 6. 43. 89 Ass. 1 And the Husband may in some case prejudice his Wife in point of Inheritance , as by Cession , Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground , where it shall be said the folly of the Wife to take such a Husband : If the Husband be seized in the right of his Wife they sell the said Land , and for Assurance levy a Fine to the Vendee , now the Husband alone shall have an Action of Debt for the mony upon the Sale which proves that it is the Sale of the Husband alone , which see 48 E. 3. 18. Fenner Serjeant contrary : And first he confessed that the Declaration by the Wife is utterly void and also the Declaration by the Husband ; and therefore when the Husband and Wife levy a Fine the Conusee in judgment of Law is in by the Wife , and not by the Husband , so as the Husband as to the right is a Stranger to the Land , and to the Estate which passeth by the Fine , although he be Party to the Fine , for that is not for any Interest which he hath in the Land , but for the conformity of Law , which disables a Wife to levy a Fine without her Husband , and therefore it is not any reason that the husband alone shall be received to declare the uses , for he is no Proprietor of the Land in right especially , forasmuch as in account of the Law , the whole passeth from the Wife : And the Law in divers Cases frames its Iudgment according to the possession of the Wife , and that in acts done by the Husband 14 H. 8. 6 where A seized of a Rent-charge in Fee issuing out of the Land of the Wife , A releases the Rent to the Husband and his Heirs , the same shall enure to the Wife , Vide 38 E. 3. 10. From such Cases the Law respects the nature of the Seisin and the manner of the possession . And as to the Case vouched out of Dyer 12 Eliz. where the Husband and Wife were seized of a Messuage to them , and to the Heirs of the Husband , they suffer a common Recovery , and the Husband alone declareth the uses , the same is good , for in that Case the Fee was in the Husband , and always he who hath the Fee ought and may declare the use , if all who have interest will not joyn , and therefore if Lands be given to two , and to the Heirs of one of them , if they both joyn in a Fine he which hath the Fee may by himself declare the uses : But if there be two Ioyntenants in Fee , they both ought to joyn in the Declaration of the uses , or otherwise make several Declarations of their several Moieties . So if Cestuy que use and his Feoffees joyn in a Fine , and make several Declarations , the Declaration of the Feoffees shall stand , for that the Land passeth from them . So if Cestuy que use and his Feoffees make a Feoffment in Fee 21 H. 7. And to that purpose he put the Case reported by Plowden 15 Eliz. 464. Husband and Wife seized in right of the Wife , they levy a Fine sur Conusans de droit come ceo , &c and the Conusee renders the Land to the Husband and Wife , and to the Heirs of the Husband , the Husband dieth , the Wife discontinues the Land , the same is not within the penalty of the Statute of 11 H. 7. For notwithstanding the Wife be now in by the purchase of her Husband , yet that purchase is not within the meaning of that Statute , because the Law respects the original Seisin which was in the Wife , and so it was adjudged . Vide Term. Mich. 30 Eliz.

Pasc. 25 Eliz. In the Kings Bench. CLXXXVIII . The Earl of Northumberlands Case .

THe Earl of Northumberland brought Debt for Arrearages upon Account . The Defendant shewed , that before the said Account , the Plaintiff of his own wrong imprisoned the Defendant , and he so imprisoned , assigned Auditors , and so the Account was made by Duress . It was holden a good Plea by the Iustices of both Benches .

Pasc. 25 Eliz. In the Common Pleas. CLXXXIX . Clark and Kemptons Case .

IN Ejectione firmae the Case was , 1 Leon. 141. Smith and Burds Case . Co. 10 Rep. 129. b. Payment of Rents . The Defendant leased for years to the Plaintiff , rendring rent , payable at Michaelmas , and the Annunciation , or fourteen days after . Et si contingat the said rent to be behind post aliquod terminorum vel festorum praedictorum in quo solvi debet by the space of 14 days , post aliquod festum praedict . that then , &c. It was adjudged in this Case , that the Lessee had fourteen days after the said fourteen days mentioned in the Reservation without danger of the penalty of the condition , and the last words post aliquod Festorum praedict . for the contrariety shall be rejected .

Pasc. 31 Eliz. In the Kings Bench. CXC . Harris and Whitings Case .

DEbt upon an Obligation by Harris and his Wife , as Executors of Giles Capel against Whiting , the Condition was that if the Obligor before the Feast of Pentecost pay such a sum , so as the Obligee be ready at the payment thereof to enter into a Bond of 200 l. with Sureties to purchase such Land , &c. that then , &c. The Defendant pleaded that he was ready to pay , &c. and that the Obligee was not ready to enter into such Bond ut supra . The Plaintiff Replicando said , that he was ready absque hoc , that the Defendant was ready to pay . It was moved that the Traverse was not good , for the first Act here was to be done by the Obligee , viz. to enter into the Bond , ut supra , for otherwise the Obligor had not any means to compel the Obligee to enter into it . But by Wray Chief Iustice , the first Act is to be done by the Obligor , and at the Payment the other party is to do that which to him belongs to do .

Trin. 29 Eliz. In the Kings Bench. CXC . Ralph Morris Case .

RAlph Morris and his wife libelled against one in the Ecclesiastical Court , for that the Defendant called the Wife of the Plaintiff Veneficam , Sortilegam , & Incantatricem Daemoniorum . And now came the Defendant into the Kings Bench , surmising that the matter of the Libel is determinable by the Law of the Land , and thereupon prayed a Prohibition ; and it was holden , that although the Offence of Witchcraft be in some cases punishable in our Law , yet the same doth not take away the Iurisdiction of the Ecclesiastical Law ; and to call one Witch generally , an Action doth not lye in our Law , as it hath been adjudged . But to say He hath bewitched such a one , an Action doth lye : And by Wray , Witchcraft , which is made Felony by any Statute , is not punishable by the Ecclesiastical Law ; but in case of Slander upon such a Witchcraft , such slanderous words are of Ecclesiastical Iurisdiction ; and for Witchcraft which is not Felony , the Ecclesiastical Court shall punish the party ; and afterwards in the principal Case a Consultation was awarded .

Trin. 29 Eliz. In the Common Pleas. CXCI. Tyrrels Case .

TYrrel Warden of the Fleet of an Estate of Inheritance , let the said Office for years and afterwards is condemned in London in many Actions of Debt , and is there detained in Execution for the sum of fourteen hundred pounds , and now one Iden sued the said Tyrrel in the Common Pleas , in an Action of debt for 50 l. and had Iudgment to recover , and thereupon the said Tyrrel is brought to the Bar , and Iden prays he be committed to the Fleet in Execution for his Debt . It was first moved by the Court , if there was not a practize between Iden and Tyrrel for to deliver him out of the Compter in London to a more easie Prison &c. But it was moved by Fenner , who was of counsel with the Creditors in London , that it should be very dangerous to commit Tyrrel Prisoner to the Fleet , because he had the Inheritance of Custody of the said Prison , and if the Lessee under whose guard he shall be , surrenders his Interest ; or if he doth not pay his Rent , so as in default thereof Tyrrel re-enter , or if that the Term expire before that the Creditors of Tyrrel be satisfied , then here is an Escape and discharge of Execution , and we are without remedy . But as to that it was said by Rhodes , Windham , and Anderson , That if the Lessee surrender it shall be an Escape in him , and he shall answer for the same . Afterwards by Order of the Court Tyrrel was committed to the Fleet in Execution , and the Sheriffs of London discharged .

Mich. 29 Eliz. In the Common Pleas. CXCII . Owen and Morgans Case .

THe Case between Owen and Morgan which was agreed Trin. 29 Eliz. was this , Richard Owen was seized of , Ante 26. Post 222. &c. and levied a Fine to Owen and Morgan , and to the Heirs of Owen , and they granted and rendred the said Land to the said Richard and Lettice his Wife ( not Party to the said Writ of Covenant , nor to the Conusans ) and to the Heirs of the body of the said Richard , the Remainder over to the said Owen now Demandant in Fee : The Husband alone without the Wife suffered a Common Recovery , the Wife died , the Husband died without Issue . If this Recovery by the Husband only should bind the Remainder , was the Question : And now the Lord Anderson declared openly in Court for himself , and in the name of his Companions , the other Iustices , that the Demandant ought to have Iudgment , & that the said Recovery should not bind the Remainder : But first he spake to the Fine it self , for the Wife is not named in the Writ of Covenant , nor the Conusans but in the Render , the Land is rendred to the Husband and Wife , and the Heirs of the body of the Husband , and he said a Scire facias did lye upon the Fine well enough , for the Fine is not void , but only erroneous , and being in its force , this Writ doth well lye . And he cited to this purpose 7 E. 3. Fitz. Sc. fac. 136. where upon such a Fine levied , and such Exception ut supra taken to it : To which it was said by Herle , that forasmuch as the Fine is excepted , and yet in its force , we ought to grant Execution , and also 30 H. 6. none can take the first Estate in the Fine but he who is named in the Writ of Covenant , but every Stranger may take by way of Remainder , and such was the Opinion of the whole Court : As to the matter in Law all the Court agreed , That notwithstanding the Recovery the Demandant should have Execution , for here the Land which by pretence of the said Recovery , shall be Recoverd in value , cannot go to the Estate which is given , for the Estate given was to the Husband and Wife , and the Heirs of the body of the Husband , and then the Tenant against whom the Recovery was had was impleaded as sole Tenant , in which Case the Vouchee , when he comes in , is to warrant a sole Estate , but not another , but now the Land to be recovered in value shall go to the Husband alone , and the Wife shall have nothing , so as the true Estate is not warranted and so not answered : And he cited the Case of 38 E. 3. 5. in a Formedon , the Tenant vouched himself for to save the tail , and shewed that one A. was seized , and gave the Land in Demand , to the now Tenant , and to E. his Wife in tail , which E. is now alive , and by award the Voucher was disallowed . Because it was there said by Knevyt , the Recovery in value cannot be according to the gift , 45 E. 3. 18. Tenant in tail discontinues , and takes back an Estate in Fee , is impleaded , and voucheth the Donor , he shall be ousted of the Voucher , for that he is in of another Estate , and afterwards the Plaintiff had Iudgment to have Execution .

Mich. 33 Eliz. In the Common Pleas. CXCIII . Foles and Griffins Case .

DEbt upon Obligation by Foles against Griffin ; the Condition was That if the Obligee may enjoy certain Tythes demised to him by the Defendant , during his Term , against all Persons paying yearly the Rent of three pound , that then , &c. To which the Defendant said , that the Plaintiff did not pay the said Rent , &c. Beaumont Serjeant moved that the Plea is not good , but he ought to say , that the Plaintiff enjoyed the Tythes until such a Feast , at which time such Rent was due , which Rent he did not pay , for which &c. Quod Curia concessit .

Mich. 33 Eliz. In the Kings Bench. CXCIV . Young and Taylors Case .

IN Debt upon an Obligation upon Condition to perform the Arbitrament : ( the Obligation was laid to be made in the Parish of Bow in London ) and the submission was of all things depending between them ; so that they made an Award of the premisses before such a day : and said further , that no Arbitrament was made . The Plaintiff Replicando said , that the Arbitrators made an Award in the Parish of Pancras in Warda praedict . and layed a breach , &c. The Defendant rejoyned , that 300 l. was depending in Controversie between them for a certain thing of which no Arbitrament was made : upon which they were at Issue , and tryed by a Visne of the Parish of Bow only , which passed for the Plaintiff . It was moved in stay of Iudgment , That the Trial was not good , for no place is alledged where the Controversie of 300 l. is depending ▪ for which cause it shall be tried where the Bond and Arbitrament was made ; to which it was said , That the alledging the place where the Arbitrament was made is superfluous ; for which Cause the Trial is good : And also the Submission being conditional , the Award ought to be of all things submitted , or else it is void ; contrary if it be no Condition , Vide Cook 8 Part , Baspoles Case .

Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Bishop of Lincolns Case .

THe Queen brought a Quare Impedit against the Bishop of Lincoln and others : And the Case was , That F. Bishop of Lincoln , Predecessor of the Defendant , was Patron of the Church and presented to the same , being void , one Garth , who being inducted , took another Benefice , by which , by reason of the Statute of 21 H. 8. the first Benefice became void , and remained void by the space of seventeen years , whereupon the Queen was entituled to present to the same by Lapse . The said F. then Bishop presented to the same , and afterwards was translated to Winchester , and the Defendant , now Bishop , was suffectus . And he certified into the Exchequer , that the Incumbent presented by the said F refused to pay his Subsidy , upon which he was deprived ; and if now the Queen shall present by reason of her Title by Lapse , notwithstanding the plenarty after , or if the Title by Lapse of that Presentment of the Bishop was , &c. was a great Question : And the Case late adjudged between Beverly and Cornwel was cited ; but there the Case was , that the Clark presented ( where the Presentment appertained to the Queen by Lapse ) died , but here he is deprived , which may be the Covin betwixt the Ordinary and him . Fenner argued to the contrary , and put divers Cases to prove that the Prerogative of the Queen did not alter the right of the Parties ; As the Queen hath a Seignory consisting of Homage , Fealty , and Rent , and the Queen grants the Seignory to a Stranger , reserving the Rent , and afterwards the Tenancy Escheats , the Rent is gone : The Queen leases for years , rendring rent to a Stranger upon Condition , who enters upon the Lessee , the Condition of the Queen is suspended . The Queen purchaseth Lands in Borough English hath Issue a Son , and dyeth seized he hath the Land now by descent ; afterwards a younger Son is born , that Land shall be divested out of the possession of the King , and the Royalty of his person doth not alter the right of descent : And afterwards , forasmuch as the same deprivation is the act of the Incumbent , the refusal the act of the Ordinary himself , the sentence and not the act of God in the case before cited . It was the Opinion of the Court , That Iudgment should be given for the Queen .

CXCVI. Windham and Meads Case .

WIndham brought an Action upon the Case upon the Common Law of England concerning Hostlers : The Case was , That the Servant of Windham brought his Masters horse to the Inn , and there it was stollen . To which the Defendant said , That the said Servant brought the said Horse to the said Inn to be put to Pasture , and thereupon the said Horse was put to grass , and was there stollen ; it was ruled in that Case that the Inn-keeper should be excused : but if the Inn-keeper of his own head , without direction of the Owner , or his Servant , had put the Horse to grass , and afterward the Horse is stollen , there an Action upon the Case doth lye .

Trin. 29 Eliz. In the Common Pleas. CXCVII . Neals Case .

IN a false Imprisonment by Neal against the Mayor , Sheriffs , Citizens and Commonalty of the City of Norwich ; the Original Writ was directed to the Coroners of the said City . And Exception was taken to the Writ , because it was not directed to the Sheriffs of the said City , but to the Coroners . Sed non allocatur , for the Sheriffs are parcel of the Corporation , as it is to see by the name by which they of Norwich are incorporated . And also it hath been adjudged , That a Sheriff cannot summon himself , and therefore by the Award of the Court , the Writ was allowed to be good .

Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Case .

SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands , the Kings Silver was entred , and the Conusans taken ; but the Fine was never engrossed , and now he who claimed under the Fine came in Court , and prayed that the Fine might be engrossed , and the Court examined them upon their Oaths , to what use the Fine was levied , and in the Seisin and Possession of what persons the Lands whereof the Fine was levied had been after the Fine ? Vpon which Examination it appeared fully to the Court , that the Party to whom the Fine was levied , was seized after the Fine , and suffered a Common Recovery of the Land , and that the said Land had been enjoyed according to the said Fine at all such times since , &c. Whereupon the Court commanded that the Fine be ingrossed . Vide Acc. 8 Eliz. Dyer 254.

Trin. 29 Eliz. In the Exchequer . CXCIX . The Lord Dacres and Philip Fines Case .

THe Case between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Estate for Life of Lands holden in Capite , levied a Fine thereof without Licence ; 3 Leon. 261. and Process issued against the Tenants for Life ; It was holden by all the Barons , that by Plea he should be discharged ; it was holden , That if the Conusor had any other Lands ubicunque in Anglia , the Fine for Alienation should be levied upon them . But it was moved , If the Tenant should be driven to plead it , because it appears upon Record that the Conusor was but Tenant in Tail in Remainder , and that was in an Office containing such matter which was pleaded by another in another Cause before , by which Office it appeared , that the Lord Dacres was Tenant in Tail , the Remainder in Tail to Philip Fines ; and now Fines had levied a Fine sur Conusans de droit , &c. and because the same appeared on Record , Manwood awarded that the Process against the Tenants of the Lord Dacres should be stayed .

Trin. 29 Eliz. CC. Paston and Townsends Case .

IN Trespass by Paston against Townsend , The Defendant pleaded that Tindal was seized in Fee by protestation and dyed seized , and the Land descended : To which the Plaintiff replyed , and said &c , absque hoc that Tindal was seized in Fee , upon which they were at Issue . On the part of the Defendant to prove the Issue , it was given in Evidence to prove the Issue in his right , that the said Tindal long time before his death was seized , and aliened , and never after was seized : It was said that that Evidence did not prove the Issue for the Defendant , for the Seisin in Fee intended in the Issue is in the nature of a dying seized ; and so Periam conceived that the Defendants Plea did not intend any other Seisin , a dying seized , and the dying seized is taken by Protestation , to avoid the doubleness . So as the Seisin upon which the Issue is taken ought to be intended a Seisin continuing until the time of the death of Tindal , and Seisin at large , or a general Seisin at any time during the life of Tindal , quod Anderson concessit .

Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Case .

ERror by Griffith against Price , upon a Iudgment in Chester in Ejectione firmae , and the Error assigned was because the Original bore date 16 April , 28 Eliz. and the Plaintiff declared of an Ejectment 17 April , 28 Eliz. So as it appeareth , that the Action was brought before there was any cause of Action : and that was holden to be Error : And also Ejectione firmae is not a personal Action ; and afterwards the Iudgment was Reversed .

Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Case .

A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls ; and upon that Error was brought in the Kings Bench , quod nota , For this Writ of Error upon a Iudgment given in London ought to be sued before the Maior , Vide ● N. B. 22 , 23. And Wray asked , Wherefore the Writ of Error was brought here . To which it was answered by Dodding Clark , that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant , to the purpose to bring a Writ of Error , quod coram vobis residet . And the Error was assigned in this , that by the Statute of 18 Eliz. cap. 5. it is enacted , that upon every Information that shall be exhibited , a special Note shall be made of the Day , Month and Year of the exhibiting of the same into any Office , or to any Officer , who lawfully may receive the same : And here upon this Information there is not any such Note , according to the said Statute : And in truth , no Information may be exhibited , for there is not any Officer there appointed for that matter , for the entry in such Cases in that Court is , Talis venit & deliberavit hic in Curia Miloni Sands , &c. But in the Case at Bar , the Entry is , Talis venit & deliberavit in Curia , but without shewing to whom . ( But note that the words of the said Statute of 18 Eliz. are in the disjunctive , into any Office , or to any Officer ) and that such Information shall not be of Record but from that time forwards , and not before , wherefore here this Information is not upon Record and then no Iudgment can be given upon it . Cook , This Information may be well sued in London , for the words of the said Statute of 5 E. 6. give Suit in any Court of Record of the King : And the Court in London is a Court of Record of the King , and every Court of Record hath an Officer to receive Declarations and Pleas , and if it be delivered into the Office , it is good enough . 2. The Offence is laid in the Parish of Bow in Warda de Cheap , & alibi in Civitate London , and so there is not any place laid where the Offence shall be tryed . Cook , This Alibi is a Nugation .

Trin. 31 Eliz. In the Kings Bench. CCIII . Peuson and Higbeds Case .

IN Assumpsit , the Plaintiff declared , that in consideration that he by his Servant had delivered to the Defendant two Bills of Debt amounting to the sum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy , to his own use , the Defendant promised to pay to the Plaintiff 60 l. and upon this matter Iudgment was given ; and now a Writ of Error was brought and assigned for Error , because it is not shewed in the Declaration that the Bills were sealed , or that they were made to the Plaintiff , and here is not any consideration , for the Defendant hath not any remedy to compel the Parties to pay the said debts if they refuse . Godfrey , If the mony be not paid at Roan to the Defendant , he shall have an Action upon the Case , for this is an Assumpsit in Law , which Wray concessit , for it is a mutual promise and agreement : And it was argued to the contrary , that here is not any sufficient consideration , for it doth not appear that the Defendant hath any remedy for to recover the mony . And 13 Eliz. it was holden , that where the Plaintiff declared in an Action upon the Case , that in consideration that he had delivered a Bill of Debt to the Defendant , and hath made a Letter of Attorney upon it , &c. the Defendant promised to pay to the Plaintiff 20 l. and because that the Plaintiff ( notwithstanding that ) might release the debt , or revoke the Letter of Attorney , and so defeat the Defendant of the whole profit , &c. that the Action upon the matter did not lye : Also for another cause the consideration is not sufficient , for it is illegal because maintenance ; but if it was upon the consideration precedent it had been good enough : As if J be indebted to A. and B. is indebted to me , J. may assign to A. the debt which B. oweth me . Golding , Although the consideration be but of small value , yet it is good enough . And if A. in consideration B will assure to him the Manor of D. promise to pay to B. 100 l. although the Party hath not any interest or title to it , yet it is good , and also though the consideration be Executory , yet it is valuable , for if the mony be not paid at Roan , the Defendant shall have an Action upon the Case against the Plaintiff : It was also objected that upon the Declaration it doth not appear that the Defend . if the two Bills be not paid , may have an Action upon the Case against the Plaintiff , for there is not any express Assumpsit on the Plaintiffs part , that the monies due by the Bills to the Plaintiff shall be paid to the Defendant , for if it had been so , then it had been good , for then there had been a reciprocal promise which is not here , nor can be collected by any words in the Declaration . Cook , It doth not appear upon the Declaration by whom , nor to whom the mony due by the two Bills , shall be paid , for it may be that they are due to the Defendant and then the delivery of the two Bills is not any consideration , Quod Clench & Gawdy concesserunt . The Case was adjourned .

CCIV. Temps Roign Eliz.

THe Case was , A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee , his Executors and Assigns , within three years next ensuing , that then , &c. The Feoffee hath Issue three Sons , whom he makes his Executors , and dyeth before the day of payment . The Ordinary commits Letters of Administration to J. S. during the minority of the Executors . It was the Opinion of Dyer , that it was the surest way for A. to pay the monies to the Executors no withstanding the administration committed to another , for the Administrator in such Case is but a Bailiff or Receiver to the Executors , and shall be accountable to them ; which Harper concessit : And Manwood said , That if in that Case the monies be paid to one of the Executors , it is sufficient ; and the monies to be paid upon that conditional Feoffment , are as a sum in gross , and not in the nature of a Debt , quod caeteri Justiciarii concesserunt .

CCV . Temps Roign Eliz.

A Lease is made of certain Lands for years , Proviso that the Lessee shall not put his Cattel upon the Land from Michaelmass to St. Andrews Tide , the Question was , If this Proviso and Restraint shall reach for the whole Term , or but to the first year . Dyer , Conditions are stricti juris , and ought not to have liberal constructions ; therefore he conceived , that the condition should be restrained to the first year , and should not further extend . Manwood , If I be bound that I will not go to London between Easter and Michaelmas , it shall not extend only to the first year after the date of the Obligation , but for my whole life .

Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Case .

ACtion upon the Case by Doughty against Prideaux upon these words , Thou art a wicked and perjured Fellow , 3 Leon. 269. and art forsworn in the Court of Star-Chamber , as it appeareth by an Exemplification here under the Seal of that Court : The Defendant justified by reason of a Bill exhibited in the said Court , by one Brooks against the now Plaintiff , for conspiring with another to endite the said Brook of certain Felonies , and the Defendant , now Plaintiff in his answer to his said Bill denied upon Oath the said Conspiracy , and Sentence was given in the said Court against the now Plaintiff , ubi revera , such Conspiracy was . The Plaintiff by Replication said , That the said Brook was arraigned and endicted upon the said Indictment , and prayed his Clergy , whereupon it appeared , that the said Brook was not legitimo modo acquiet' ; and the same can be no Conspiracy in the now Plaintiff , to prove the said Brook to be indicted : And by Walmesley and Periam , the Replication is not good , for it may be that Brook was acquitted , and yet that the Plaintiff conspired , upon which a Writ of Conspiracy perhaps will not lye , but an Action upon the Case without doubt , for the Replication doth not prove that the Plaintiff did not conspire , but that the Plaintiff was not punishable for such Conspiracy .

CCVII. Pasc. 33 Eliz. In the Common Pleas.

AN Abbot made a Lease to three men for eighty years , and in the end of the said Lease there was a clause , Proviso , That if they dyed within the said Term , that then the Lessor might enter . The Possessions of the Abby came to the King , who granted the Reversion to J. S. who made a new Lease to J. D. for twenty and one years , to begin after the Expiration , Determination , or Surrender of the former Lease : The three Lessees dyed within the term , If J. D. might enter before J. S. had entred , was the Question . It was the Opinion of the Iustices , that he could not , for it is in the Election of J. S. if he will take advantage of the Condition , and defeat the Lease , but that ought to be by Entry , and none can make such Entry but the Lessor himself , or by his express direction .

Trin. 31 Eliz. In the Kings Bench. CCVIII . Barlow and Piersons Case .

BArlow brought a plaint of Debt in London against Edward Pierson , which was his very name , and he caused himself to be removed into the Kings Bench by the name of Edmund Pierson , and in Easter last he put in Bail Edmund Pierson , and we declared against him by the name of Edward , his true name , and Iudgment was given for us ; and now when we are to resort to the Bail we cannot find any such Person , wherefore all our labour is lost , and now we would declare de novo upon that Bail , and we pray that the Court will give way to answer . Kemp , The ancient use was , when any removed himself hither by Habeas Corpus , the Plaintiff might declare against him at any time within a year after ; but of late time the Iustices , to avoid over-long delays , have taken this order , that the Plaintiff in such Case declare within two Terms ; and this is the second Term in your Case , wherefore you may declare : And it was said that because that the Defendant had removed himself by the name of Edmund , he is estopped to say the contrary : But if it were upon an Original Writ here , it is otherwise . And afterwards the Plaintiff declared against him by the name of Edmund .

Mich. 27 Eliz. In the Common Pleas. CCIX. Kightley and Kightleys Case .

DEbt by Eustace Kightley against Charles Kightley Executors of the last Will of Francis Kightley : The Defendant pleaded that they had fully administred . The Case was this , Francis Kightley made the Defendants his Executors , who being within age administration was committed to another until they came of full age , and after they were of full age , the Iury found , that in the hands of the Administrator , fuerunt bona & debita Testatoris amounting to the value of 4000 l. To which Administrator the Executors did release at their full age all manner of demands ; and if that release were Assets in the hands of the Executors was the Question . Puckering Serjeant argued , it was not Assets , for a Release of a thing , which is not Assets in the hands of an Executor , cannot be Assets , and things in Action , before they come in possession , cannot be Assets : But a gift of Goods in possession is Assets . And there is a difference betwixt a certain thing released , and a thing incertain , of a certain it is Assets , for by such means he hath given a thing which is Assets , but contrary of an incertain . And this difference is proved by 13 E. 3. Execut. 91. where it is holden , that if Executors release to the debtor , he shall account for such sum before the Ordinary by Parn , but Trew said he shall not account . The whole Court was against Puckering : And Anderson said , It is a clear Case , that this Release is Assets , for he hath thereby given away that which might have been Assets . And the Law doth intend , that when he releases he hath recompence and satisfaction from the Party to whom the release is made : And it is not requisite , that every Assets be a thing in Possession , or in the hands of the Testator , for a thing may be Assets which never was in the hands of a Testator , as monies for Lands or other Goods sold . So if they come by reason of another thing , which was in the Testators hands ; as the encrease of Goods by the Executors in their hands by merchandizing with the Goods of the Testator or Goods purchased by the Villein of the Testator after his death , shall be Assets . So monies received by the Executor of the Bailiff of the Testator after his death shall be said Assets . Windam Iustice , So it is if the Testator hath Sheep , Corn , or Swine , and dyeth , and they have young Lambs , Pigs , or Calves , they are Assets for the reason aforesaid : And he agreed that the release is Assets , and he said it had been so adjudged , and he denied the difference taken by Puckering . Periam agreed with the rest in all ; and also denied the difference . And he said , the incertainty must be such , that the same cannot be proved to the Court , or unto a Iury ; that the thing released might not by possibility have been Assets . For if Trespass be done to the Testator by taking his Goods , and he dyeth , and the Executors release all Actions , the same is Assets , because it might be proved to the Iury , that had they not released , but brought their Action of Trespass de bonis asportatis in 〈◊〉 ●estatoris , that they might have recovered damages which should have satisfied the Debts or Legacies of the Testator and therefore it shall be Assets : And yet the thing recovered cannot be in the Testator , or a thing in possession , or certain in the hands of the Executors . With whom Rhodes agreed . And Periam conceived that such Administrators made durante minori aetate of the Executor , could not by our Law neither sue or be sued : For as he conceived , the Infant was the Executor and an Infant Executor may either sue or be sued , and may release if there be a sufficient consideration given him wherefore he said if an Administrator doth release where he hath no cause nor good consideration , he shall be answerable of his own Goods when he cometh of full age , for the wasting of the Estate , and such a release shall be Assets : and it was holden , that a release before Probate of the Will is good , and it is Assets also . And the same Term Iudgment was given , that the Release of the Executor was Assets .

CCX . Temps Eliz. In the Common Pleas.

NOte by Dyer upon the words of the Statute of 32 H. 8. cap. 28. That a Feoffment of the Lands of his Wife , it shall not be a discontinuance ( mes que ) but that the Wife may enter after the death of her Husband , is an Abridgment of the words precedent , for in some Cases such a Feoffment is a discontinuance ; as if , after the Feoffment they be divorced , she cannot enter , but is put to her Writ cui ante divortium .

CCXI. Pasc. 29 Eliz. In the Kings Bench.

NOte by the Opinion of the whole Court : A man made his Will in this manner , I will and bequeath my Land to A. And the name of the Devisor was not in all the Will : That yet the Devise was good by Averment of the name of the Devisor , and proof that it was his Will ; and if a man lying sick , having an intent to make his Will by words makes such a Devise , but doth not command it to be put in writing , but another without his knowledge or command puts the same in writing in the life of the Devisor , it is a good Devise , for it is sufficient if the Devise be reduced into writing .

Pasc. 29 Eliz. In the Common Pleas. CCXII. Brasiers Case .

NOte , It was agreed by all the Iustices , and affirmed by the Prothonotaries , That if the Devisor levieth a Fine , and the Disseisee in preservation of his right against the said Fine , enter his Claim in the Record at the Foot of the said Fine , that the same is not any Claim to avoid the said Fine upon the Statute of 4 H. 7.

Pasc. 29 Eliz. CCXIII. The Queen and Sir John Savells Case .

A Bill of Intrusion was exhibited by the Queen in the Exchequer against Sir Robert Savell Kt. who pleaded in bar her pretence , and upon Issue joyned , the matter was tryed by the Records , and thereupon Iudgment was given for the Queen . and an Injunction for the Possession awarded accordingly . Sir Robert dyed , and now Sir John Savell , Son and Heir of the said Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The perclose of which Writ was , ad grave damnum ipsius Johannis Savell filii & haeredis dicti Roberti . It was objected against the Writ , That no Writ of Error upon the said Statute of 31 E 3. lay upon such proceedings which at the time of the making of the said Statute was not in force : For tryal of an Issue in the Exchequer by Record , was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon such Iudgments which were given by Verdict , Confession , or Demurrer , and not upon tryal by Records , which was given but of late times . But to this objection it was answered by the Lord Chancellor , and the other Iudges , That long time before the said Stat. of 33 H. 8. Issues joyned in the Exchequer have been tryed by the Records ; and he , when he was the Queens Solicitor , had seen divers Presidents to that intent in the time of Hen. 6.

Mich. 29 Eliz. In the Kings Bench. CCXIV. Houtiers Case .

DEbt was brought upon a Concessit Solvere according to the Law of Merchants and Custom of the City of Bristol . Exception was taken , because he did not mention the Custom in his Declaration : And because in the end of his Plea , he saith , Protestando se sequi querelam secundum Consuetudinem Civitatis Bristol , the Plea was awarded good , and the Exception disallowed .

CCXV . Mich. 29 Eliz. In the Kings Bench.

A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet : And the Indictment was , That he at the Leet of the Earl of Bath , super Sacramentum suum coram Senescallo , &c. Exception was taken to it , because it saith at the Leet of the Earl of Bath , whereas every Leet is the Kings Court , although that another hath the profit or commodity of it : And it was said that the Steward of a Leet is not an Officer of Record ; and also his Oath was , If he had done a Rescous , or not , with which he was charged . And by Drew , It is not within the Statute ; for it ought to be either before a Iury in giving Evidence , or upon some Article . But the Iustices in that were of opinion against him .

Mich. 25 Eliz. In the Common Pleas. CCXVI . Howen and Gerrards Case .

IT was adjudged in this Case , That Partition of Lands made by the Bayliff of a Franchize , was not good within the Statute of 31 H. 8. of Partition , but it ought to be done by the Sheriff himself .

Mich. 28 Eliz. In the Kings Bench. CCXVII . Strangder and Burnells Case .

AN Action upon the Case of Trover of Goods , and converting them to his own use in Ipswich . The Defendant pleaded , That the Goods came to his hands in Dunwich in the same County , and that the Plaintiff gave to him all Goods which came to his hands in Dunwich , absque hoc that he is guilty of any Trover or Conversion in Ipswich . It was holden to be a good manner of pleading by reason of the special Iustification . Vide 27 H. 6. But where a Iustification is general , the County is not traversable at this day , Vide 19 H. 6 , 7.

62 Eliz. In the Common Pleas. CCXVIII . Hodges Case .

IF one enfeoffeth his Son and Heir apparent , and no use is expressed , nor Consideration , it was said It should be to the use of the Son , and so hath the Law been taken ; and so it is in Case of a Covenant to stand seized to the use of the Son. The Court said that there was a difference betwixt the Cases ; or in the Case of Feoffment they seemed to be of Opinion , that the Deed should have no operation ; but in the other Case it may be otherwise upon construction of the Result of the Vse to the Father .

28 Eliz. In the Kings Bench. CCXIX. Mark Stewards Case .

AN Assumpsit before Action brought may be discharged by word , otherwise after Action brought .

Mich. 30 Eliz. In the Common Pleas. CCXX . Verney and Verneys Case .

IN Dower by Verney against Verney : The Case was , That Lessee for years by Fine , to whom the Land was rendred by Fine for years upon the Default of the Tenant , prayed to be received , and it was Counter-pleaded , because the Statute of Gloucester gave no Receit , but where the Termor might have Recovery by Writ of Covenant , but where the Lease , as in our Case , doth commence by render by Fine , there cannot be any recovery by Covenant . But it was the Opinion of the Lord Anderson , That such a Termor shall be received .

CCXXI . Mich. 32 Eliz. In the Exchequer Chamber .

IN the Exchequer Chamber before the Chancellor , Treasurer , &c. A Writ of Error was cast upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen , for the Defendant , That the Writ of Error ought to abate for false Latine , for the Writ is Pertenet , where it ought to be Pertinet . But by Manwood , Anderson , and Wray , The same is no Exception , but notwithstanding that , the Court may proceed to the Examination of the Errors ; For the same is not properly a Writ , but rather a Commission to the Chancellor , Treasurer , &c. and therefore it was ordered that the Party should proceed to the assignment of the Errors .

Mich. 31 Eliz. In the Exchequer . CCXXII . The Queens , Fanes , and the Archbishop of Canterburies Case .

THe Queen brought a Quare Impedit against Fane , 1 Leon. 201. the Archbishop of Canterbury , the Bishop of Chichester , and Hudson Incumbent , and counted that John Ashburnham was seized of the Advowson of Burwash , and was Outlawed in an Action of Debt , during which Outlawry in force , the Church voided , by which it did appertain to the Queen to present . The Archbishop and Bishop pleaded that they claimed nothing but as Metropolitan and Ordinary . Fane pleaded , That King E. 4. ex gratia sua speciali , &c. and in consideration fidelis servic . &c. granted to the Lord Hastings the Castle and Barony of Hastings , and Hundred , &c. Et quod ipse haberet omnia Bona & Catal. Tenentium , residentium & non residentium , & aliorum resident . quorumcunque hominum de & in Castro , Baronia &c. seu infra eadem pro numero debit . &c. tam ad sectam Regis , &c. quam &c. utlagatorum . Et quod ipsi liceret per se , vel ministros suos , &c. and from him derived to the now Earl of Huntington as heir , &c. and the said Earl being so seized , and the said Ashburnham seized of the said Advowson as appendant to the Mannor of Ashburnham , holden of the said Barony , the said Church during the Outlary in force became void : For which cause the said Thomas Fane ad Ecclesiam praedict. usurpando praesentavit the said J. H. who was admitted , and instituted , and demanded Iudgment , If , &c. with this that the said Tho. Fane will aver that the said Church of B. is , and at the time of the said Grant was infra praecinct . libertatis & franchesiae praedict. & quod praedict. Manerium de Ashburnham tempore concessionis praedict. was holden of the said Barony . And the Incumbent pleaded the same Plea : and if by that Grant of King E. 4. to the Lord Hastings , scil , Bona & Catalla , the presentment to the Church passed or not , was the Question . Shuttleworth of Counsel for the Queen , he said and confessed , That the Queen might grant such a Presentment , but it ought to be by special and sufficient words , or such words so as it might appear to the Court by them that the intent of the Queen was to grant such a thing , for the general words Omnia Bona & Catalla , would not pass such a special Chattel in the Kings Grant. And he said he conceived , that by the words subsequent , that no Goods and Chattels should pass by such Grant , but such which might he seized , the which the Advowson of a Church could not be : Et quod ipsi liceret per se vel Ministros suos ponere se in seisinam , 8 H. 4. 114 , 115. The King granted to the Bishop of London that he should have Catalla Felonum & Fugitivorum de omnibus hominibus , & tenent . de & in terris & feodis praedict. & de omnibus residentibus infra terr. & feoda praedict. ita quod si praedicti homines , tenentes & resident . de & in terris & feodis praedict. seu aliqui eorundem , seu aliquis alius infra eadem terras & feoda pro aliqua transgressione sua , seu quocunque alio delicto vitam , vel membrum debeat , vel fugerit & judicio stare noluerit , seu aliquam aliam transgressionem fecerit pro qua ipse Catalla sua perdere debeat , in quocunque loco justitia de ea fieri debeat . Ipsa Catalla sint ipsius Episc. & per Ministros Episc. fn manus ipsius Episc. sesiri possint . Tirwhit , The Goods of those that are put to penance do not pass , so the Goods of a Felo de se , Vide 42 Ass. 5. where one being impanelled upon the Grand Inquest before the Iustices of Oyer and Terminer , pleaded the Kings Charter of Exception from Inquests ; and because in the said Charter there was not this Clause ( Licet tangit nos & haeredes nostros ) without challenge it was rejected , and he charged , and sworn . And if the King grant to me to appropriate an Advowson , which in truth is holden of the King , such a Grant is void . So if there be not special words , by which it may appear that the King hath notice of it , and that his intent was , that the Grant should extend to the same , it doth not pass , 16 E. 3. Fitz. Grants 58 and 33 E. 3. Grants 103 So here this Presentment is a special Chattel ; and it is not usually intended , or thought upon when a man speaks generally of Goods and Chattels , but that it passeth , yet the Presentment doth not lye for the Defendants , for they do not derive any interest under that Grant , but are meer strangers to it , and therefore they shall not take any advantage in laying this Grant in the Queens way ; for the Queen hath good title against all persons , but those which claim under the said Grant , but that is nothing to the Defendants . For one cannot cross the title of the King , if he doth not make a title to himself . As 39 Ass. 18. 17 Ass. 11. if the title of the King be found by a false Office , the party grieved cannot traverse the title of the King , without making a title to himself , and then the King may choose whether he will maintain his own title found by the Office , or traverse the title of the other . Walmesley to the contrary this title of Presentment is a Chattel , Rex habebit omnia Catalla felonum , &c. Terminus Annorum is a Chattel , so Exitus & proficua terrarum utlagatorum pro felonia ; so a right of Action for Goods ; so it is of an Obligation made to the party delinquent , therefore also a title to present ; therefore if a title to present shall accrue to the King by such general words , it shall pass also from the King by such words ; and as to that which hath been objected , That the Grant of King E. 4. extends only to such Goods and Chattels which may be seized . He cited the Case 39 H. 6. 35. where the Grantee of a Rent-charge , for a term of years granted Omnia Bona & Catalla sua tam viva , quam mortua , the Rent passed , and yet the Grantee could not put him in Seisin of it when he would , but ought to expect the day of payment . And this title to present is not a thing in action , for if no disturbance be made , the Party may have the benefit of it without any Action . Anderson held that this title to present could not pass by these general words , Bona & Catalla , for they do not extend to a Right , or things in Action , but to such things only which are commonly known and understood by such words . By grant of Goods , Chattels real do not pass . For when men speak of Goods , Houshold-stuff , Mony , and the like , personal things only are understood . So a man cannot be said to have a Chattel but where he is possessed of it , and here this Interest is but Jus praesentandi . Periam , This Interest is a Chattel ; for if the Church became void and before Presentment the Patron dyeth , his Executors shall have the Presentment , for that it was a Chattel vested in their Testator , &c.

19 Eliz. In the Kings Bench. CCXXIII. Hide and Hills Case .

IN Ejectione firmae by Hide against Hill , The Case was , Nicholas Throgmorton Tenant in Tail , without licence of the King , went beyond Sea into Italy , and there married an English Woman , and there continued in the Service of Cardinal Pool , and their practised traiterously against the State here , and against his Allegiance , within which time he had Issue a Son named Francis : It was holden that the said Son was not inheritable to the Tail ; for if a Subject goeth beyond Sea with the Licence of the King , and there continueth longer than his appointed time , by that he loseth the benefit of a Subject . It was further given in Evidence , That the said Nicholas was attainted of Treason in the time of Henry 8. and afterwards went beyond Sea , ut supra , and returned in the time of Queen Mary ; and was restored by Act of Parliament : And upon all that matter it was holden that the said Francis was inheritable .

19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Case .

IN an Attaint by Grey against Edwards it was holden by Wray , Gaudy , and Jeoffries , That if one makes a Deed , and that by these words ( Dedi ) conveyeth Lands to another , without any words of Bargain and Sale , and that for a sum of mony ; If the Deed be debito modo enrolled , the use shall pass as well as if the words of Bargain and Sale had been in the Deed , because that a sum of mony was paid for the Land .

19 Eliz. In the Kings Bench. CCXXV. Webbs Case .

IN Action upon the Case the Plaintiff declared , That whereas Cobham was indebted to J. S. and J. S. to the Defendant , the said Defendant in consideration that the Plaintiff would procure the said J. S. to make a Letter of Attorney to the Defendant to sue the said Cobham , promised to pay and give to the Plaintiff 10 l. It was objected , Here was not any Consideration for to induce the Assumpsit ; for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel . But the Exception was not allowed of . For in this Case not so much the Profit which redounds to the Defendant , as the Labour of the Plaintiff in procuring of the Letter of Attorney , is to be respected .

Temps Roign Eliz. CCXXVI Heggor and Felstons Case .

IN Trespass , the Case was , A Copyholder surrendred to the use of his Wife for Life , and after to the use of his Daughter in Fee , the Wife is admitted : It was holden that the Daughter , after the death of the Wife , Copyholder Surrender by Attorney . might without any admittance surrender the same Land , for the first admittance was sufficient . And Manwood said that Roper was Steward of a Mannor , and one of the Copyholders of the said Manor being in Ireland , he made a Commission to one to receive a Surrender from him there , and it was holden a good Surrender .

CCXXVII . Trin. 32 Eliz. In the Exchequer .

NOte by Manwood chief Baron , for a Rule to all Counsellors , That they do not advise any Collectors of Subsidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subsidies ; for such Bills shall not be allowed hereafter , because they have remedy by Distress . Also it was , That if any be assessed for the Fifteens which he ought to pay , or if two Towns ought to pay together , and one Town be taxed more than it ought to be , or hath been accustomed , those who are grieved by such Assessment , may have a Commission out of the Exchequer , which is called ad aequaliter taxand . and that was put in practice in a case between Bartace and Hind , where one of these was Lord of Little Marlow , and the other of Hedsore . It was also holden , That Fifteens are to be levied of Goods and Chattels properly and a Township is sometimes richer than at other times , and therefore it is not reasonable they pay their Fifteens always according to the same proportion . But Clark Baron held where the Custom hath always been that the Fifteens shall be taxed according to the quantity of Acres , then the rate and proportion shall be always on whosoever holdeth the Land . And as to the Commission ad aequaliter taxand . Manwood and Fanshaw said , That they could shew twenty Presidents of it .

Trin. 30 Eliz. In the Kings Bench. CCXXVIII . Harris Case .

THe Case of Harris of the Middle Temple , was , Tenant in tail in remainder upon an Estate for life is attainted of Felony , 2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inst ● If he hath forfeited his Remainder during his Life . Popham Attorney General , He hath forfeited it to the Queen ; for after his attainder , the Law will not suffer it to remain in him , and it cannot vest in the Lord of whom the Land is holden ; for the person attainted being Tenant in tail in remainder , was not very Tenant to the Lord , therefore , if in none of them , the Queen shall have it , and the Law shall punish the offence so sharply , that it suffer nothing to remain in him . So Tenant in Dower and by the Courtesie : And it is a Maxim , What a man hath in his own right he may forfeit , but it is not a certain rule , Whatsoever a man may grant he may forfeit ; as Guardian in Socage and Executors may grant that which they cannot forfeit . 2 Leon. 126. A man seized in the right of his wife is attainted of Felony , the Queen shall have but the profits of the Land during the life of the Husband , Vide Register 292. Where the husband seized in the right of his wife of certain Lands is outlawed of Felony , the King seizeth , and hath the Lands during the life of the husband , after the death of whom , issued a Diem clausit extremum , Vide F.N.B. 254. D. Cook , Tenant in tail in possession is attainted of Felony , the King shall have but the profits , but as our Case is , being Tenant in tail in remainder upon an Estate for Life nothing shall be forfeited during his life , and after the death of the Tenant in tail , so attainted of Felony , the Issue in tail may enter , for the King hath not the Freehold ; for if the King had the Freehold , the Issue in tail could not enter without Office , vide Old Natura Brevium in the Writ of Escheat , That the King shall have only the profits . At another day it was argued by Egerton Solicitor , That the Queen hath the Interest of him in the Remainder during his life ; for a man so attainted cannot be receiv'd against the Queen ; and if a man attainted of Felony purchaseth Land and dyeth his wife shall not be endowed of it : And he said that this Remainder vested in the Queen without Office , then not pardoned by 23 Eliz. It hath been objected , That if the Remainder be in the Queen without Office , by this attainder of Felony by the Common Law , then also in case of attainder for Treason , and then what need was there that the Statute of 33 H. 8. should be made , which enacteth , That in cases of Treason it shall vest in the King without Office. As to that , I answer , That that Statute was made in affirmance of the Common Law , and also for other things given to the King by the Statute , which were not given by the Common Law , as Conditions , Rights , &c. So as the King might grant over without Office , and also the Subject have a Petition of Right before Office , which was not at the common Law , 33 H. 8. 20. in the saving in the end of it : And as to the Statute of 18 H. 6 cap. 6. such things were in the King without Offce , for by the common Law before Office , the King might grant them , but he could not grant them if they were not vested in him ; and the said Statute was made to such intent , that the Queen should be fully informed of her Title , &c. by the Office. Vide Stanford Prerogat. 54 , 55. and Vide 20 E. 4. 11. A. seized of a Mannor with an Advowson appendant , is attainted of Treason , the Church void , the King without any Office shall have the presentment . But admitting that it is not in the King without Office , yet the Pardon of 23 Eliz. doth not extend to it : For the words of the Pardon are , Treasons , Felonies , Offences , Contempts , Trespasses , Entries , Wrongs , Deceits , Misdemeanors , Forfeitures , Penalties , and Sums of Moneys , and if by any of these words the matter be helped , is to be considered ; and if any thing shall help it , it is the word Forfeiture : But I conceive that the same doth not extend to this matter ; for although it be an ample word , yet it shall be construed to extend beyond the words accompanied with it , which concern only personal things , as Contempts , Wrongs , Trespasses , as the Statute of 13 Eliz. cap. 10. which is penned by general words , as Colledges , Deans and Chapters , Parsons , Vicars , and others having Spiritual Promotions , that Statute doth not extend by construction to Bishops , and they have Spiritual Promotion ; yet the Statute shall be construed to extend to the Parties named , and other Inferiour Orders and Degrees , and shall not be extended higher . So in the Commission of the Peace , ad diversas Felonias , & alia Malafacta , &c. those general words do not extend to Treason , &c. Vide for the Residue of this Case Venable and Harris's Case , which was the same Case , and is Reported in Leonard 2 Part , fol. 122. Placito 169.

Pasc. 33 Eliz. In the Common Pleas. CCXXIX . Downhall and Catesoy's Case .

IN a Formedon by Downhall against Catesby , 3 Leon. 267. the Parties were at Issue , and it was tryed by Nisi prius : It was moved in Bank , because that some of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Postea : Curia that we cannot do ; for we not know whether your Information be true or not , and this matter ought to be examined by the Iustices of Assize or Nisi prius , before whom the Trial was , and they are to certifie thereof , and then we shall have good cause to stay the Entry of the Postea . In that Case it was said . If any of the Iurors eat and drink before their Verdict at their own Costs , it doth not make the Verdict void , but if at the Costs of the Plaintiff or Defendant , it is otherwise .

CCXXX . Hil. 29 Eliz. In the Common Pleas.

THe Sheriff took an Obligation of a Prisoner bailable , upon condition that he should personally appear in the Kings Bench , &c. It was holden a good Condition , not against the Statute of 23 H. 6. So if the Condition had been that he should appear for to answer : contrary , that he shall appear and answer ; for in the principal Case , the word ( personally ) is not of substance , for although he appears by Attorney , yet the Condition is well performed ; and Iudgment was given for the Plaintiff : Anderson reclamante . Vide 27 Eliz. B. R. Sedford and Cutts Case .

32 Eliz. In the Common Pleas. CCXXXI . Haselwoods Case .

THe Case of Haselwood ; A seized of Land is indebted to the King by Obligation and enfeoffed B. of his Land : And the Case of Fleetwood 15 Eliz. was vouched , where it was holden , That in purchase the debtor of the King was lyable . But by Pigot , who was of Counsel with Haselwood , the Obligation in this Case was made before the Statute of 33 H. 8. or otherwise he should be charged .

32 Eliz. CCXXXII . Sir William Pelhams Case .

SIr William Pelham was Surveyor of the Ordinances , and delivered of the Kings money to Painter , Clerk of the Ordnance . It was holden , That for that money the Queen might have Account against Painter . See this Case before Sect. 81.

Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Vnderhills Case .

IN Replevin , the Case was , as appeared upon the pleading , That Rob. Bouchier was seized of a certain Farm called Cruchefield Grange , and leased the same to Sir William Raynsford for thirty years , who dyed thereof possessed , by reason of which the Interest thereof came to Raynsford , as Executor of the said Sir William Raynsford , who assigned the said Farm , except a parcel of it called Hobbes , to Sir Henry Bear for parcel of the term , and afterwards assigned the said parcel called Hobbes for part of the term to Frekington and others , and afterwards granted the residue of the said term , not expired , to the said Bear and Frekington , and afterwards the said Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris & renementis quibuscunque vocat . the Grange of Cruchefield , in the Parish of Stoneleigh in the County of Warwick nuper in tenura , & occupatione William Raynsford milit. & nunc in tenura , & occupatione Hen. Bear. Bouchier granted the reversion of Hobbes to Lewknor in Fee , to whom Scarre releaseth all his right , estate , and demand in the said Land called Hobbes ; the Lease expired , the rent behind , Lewknor leased at will to R. the first Question was , If the said Rent-charge shall be said issuing out of the said Lands called Hobbes ; for if &c. then by that Release the rent is gone : But the whole Court was clear of Opinion , That the rent was not issuing out of Hobbes , but out of the Lands then in the possession of Bear , and not out of the Lands in the possession of Frekington : Although it was objected by Walmesley Serjeant , That the words in the Grant of the rent , ( in tenura & occupatione Bear ) shall be construed in the disjuncive , quasi sive ; and then the Close called Hobbes , although it was not in the Occupation , yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff , and he much relyed upon the word quibuscunque in the Grant of the Rent de omnibus terris quibuscunque , commonly called Cruchefield Grange : As if I grant to you all my Trees , my Apple-trees shall not pass ; but if the Grant was omnes arbores meas quascunque they pass , and that by the Emphasis of this word Quibuscunque : So if I grant you Common for your Cattel in such a place , none shall have Common but those which are Commonable , shall have Common there ; contrary where the Grant is pro averiis quibuscunque : And it was adjudged in the Chancery in the Case of the Bishop of Ely , That where the said Bishop leased all the Demeasns of a Manor for years , that by the said Lease the Park within the said Manor should not pass . But perhaps if such a Lease had been Omnes & singulas terras dominicales quascunque , the Park would have passed . And afterwards the Counsel of the Plaintiff seeing that the Court was of Opinion with the Defendant , took Exception to the pleading : The Defendant made Conusans ut Ballivus Administratoris of the Grantee of the Rent , and doth not shew the Letters of Administration . And as to that , It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers . Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the said Statute , so long as the Lands remain in the possession of the Tenant in Demeasn , who ought immediately to have paid the said Rent . And it was said by Anderson and Rhodes , that the Conusans was good enough , and within the relief of that Statute : For Lewknor was the immediate Purchaser , and although he had let the Lands to another at will , that did not make any thing , for yet the Estate of the Land is within the words of the Statute , for the Land remains in the Seisin of the first Purchaser . And note that in this case Bouchier dyed before the Lease expired , so as the Rent was not determined in his life . And afterwards Iudgment was given for the Defendant .

Mich. 30 Eliz. In the Kings Bench. CCXXXV . Rawlins and Somerfords Case .

IN Ejectione firmae , the Case was , Cartwright possessed of a house for the term of 30 years , demised a Stall parcel of it to Wartow for two years , and afterwards assigned the whole house to Rawlins for all the years ; Rawlins redemised the same Stall to Cartwright for twenty years , but Wartow did not attorn ; but before the said Redemise , Cartwright by Deed indented , demised the said Stall to Wartow for six years after the said two years ended , and afterwards Rawlins redemised all the house to Cartwright for 21 years , rendring rent , with clause of re-entry , and upon the Indenture of the said Redemise was endorsed that before the sealing and delivery , &c. it was agreed between the Parties , that Wartow should have the said Stall according to the Lease for six years to him made : And afterwards Cartwright redemised the said Stall to Rawlins for ten years , and afterwards the Rent . was behind , And if the Rent reserved by Rawlins upon his demise to Cartwright , was suspended , or not , was moved a question . Cook argued it was not suspended , for Rawlins had in the Estate but an Interest in futuro , which cannot suspend the Rent before in possession . And he put the Case 31 E. 1. Fitz. Discent 17. Lord and Tenant , the Tenant is attainted of Felony , and dyeth , now the Seignory is not presently extinct : For if the Lord takes Fealty of the Son , the Seignory doth continue in Esse , and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton , the rent is suspended , as if I lease Land and an Advowson , rendrint rent , and I take back an Estate in the Advowson , now the rent is suspended . But as to that it was answered , That there the party hath a present interest in the Advowson , but so it is not in the Case at Bar. And by Cook , A. seized in Fee of three Acres makes a Lease of two of them for 21 years rendring rent , and afterwards the Lessee leaseth one of the said Acres for years to the Lessor to begin two years after , it is not a present suspension of the rent until the Lease come into possession , &c. And afterwards it was adjudged , that by the Lease in futuro the rent was not suspended , Pasch. 28 Eliz. Rot. 255.

Mich. 26 Eliz. In the Exchequer . CCXXXVI . The Guardians of the Monastery of Otleries Case .

IN the Exchequer , it was found by Special Verdict , 1 Leon. 4. That the Guardian and Chanons Regular of Otlery were seized of the Manor of O , &c. and that 22 H. 7. at a Court holden , granted the Lands in question to W. and W. his Son , for their lives , by Copy , according to the Custom of the said Manor , and afterwards 30 H. 8. they leased the same Land by Indenture to H. rendring the ancient and accustomed rent , and afterwards surrendred their Colledge , &c. and afterwards W. and W. dyed . And if the said Lease so made , during the Estate Customary notwithstanding the Statute of 31 H. 8. were good or not , that was the Question , being within a year before the Surrender , &c. And it was argued by Egerton Solicitor , That the said Lease was void by the Statute , the words of which are , Whereof , or in the which any Estate or Interest for term of Life , year or years , at the time of the making of any such Lease , had his Being or Continuance , and was not then determined , finished , or expired . And therefore we are to see , if this right or possession which W. and W. had at the time of the making of the said Lease was an Interest , or Estate for Life : And as to the word Estate est nihil aliud , than measure of time ; for an Estate of Fee-simple , is as much as to say , an Interest in the Lands for ever , and so of the rest , and therefore W. and W. had at the time of the making of the Lease an Estate for the thing demised . And although such Customary Tenants are termed in Law , Tenants at will , yet they are not simply so , nor meer Tenants at will , but Tenants at will secundum Consuetudinem Manerii : which Custom warrants his possession here for life , and therefore it is a more certain estate , than an estate at will , for the Copyholder may justifie against his Lord , and so cannot a Tenant at will , whose estate is determinable at the will and pleasure of his Lessor ; and although this estate is but by custom , and by no conveyance , yet it is such an estate which the said Statute intends , & non refert by what conveyance the estate is raised , so it be an estate ; and this estate being supported by custom , is acknowledged in Law to be an estate , and so accounted in our Law ; and the Law hath notably distinguished Copyhold tenancies by the custom , and tenancies at will at the Common Law , for a Copyholder shall do fealty , and have aid of his Lord in an Action of Trespass ; he shall have and maintain an Action of Trespass against his Lord ; his wife shall be endowed ; the husband shall be Tenant by the Curtesie without a new Admittance : So customary Tenancies are within the Rules and Maxims of our Law : As in the Case of Horewood , There shall be a possest o fratris of it without admittance ; and it was adjudged 8 Eliz in the Kings Bench , That if a Copyholder surrender to the use of another for years , and the Lessee dyeth , his Executors shall have the residue of the term without any admittance . M. 14 , 15 Eliz. A Copyholder made a Lease for years by Indenture warranted by the custom , the Lessee brought Ejectione firmae , it was adjudged maintainable in the Common Pleas ; Although it was objected , That if it be so , then if the Plaintiff recover , he should have an Habere facias possessionem , and there Copyholds should be ordered by the Common Laws of the Land . 10 Eliz. Lord and Copyholder for Life , the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel , the Copy-holder surrendreth to the use of A. who is admitted , he shall not hold the Land charged ; and so it was adjudged in the Court of Common Pleas.

CCXXXVII . Mich. 23 Eliz. In the Common Pleas.

IT was holden by all the Iustices in the Common Pleas , That the Queen might be put out of possession of an Advowson by two Vsurpations , and shall be put to her Writ of Right of Advowson , as a common person shall be , for it is a thing transitory ; and if the Queen after such Vsurpations grant the Advowson , the Grant is void , and so it was adjudged .

CCXXXVIII . Mich. 23 Eliz. In the Common Pleas.

THe Case was , Tenant in tail , the remainder over to another in Fee , makes a Lease for life according to the Statute , and afterwards dyes without Issue ; and afterwards he in the Remainder grants his Remainder by Fine before any Entry , and by Fenner , the Conusee cannot now enter upon Tenant for life , nor avoid his lease , for by the Livery to the Tenant for life , a Freehold passeth , which cannot be avoided without an Entry . As if a Parson makes a lease for life , rendring rent , and dyeth , the Successor accepteth the rent , now the lease is affirmed , vide 18 E. 4. 25. and then when before any Entry , he in the remainder grants his remainder , the Grantee shall have it but as a remainder , and so the Estate of the Tenant for life , which before was voidable , is now made good ; and so it was holden by Windham and Periam : But by Mead and Dyer , by the death of Tenant in tail without Issue , the lease for life is become void , for the Estate out of which the Estate for life is derived , is determined by the dying without Issue , Ergo &c. Vide 21 H. 7. 12. A lease for life is made upon condition , That if the Lessor pay to the Lessee at such a day 20 l. that his Estate shall cease , now by the performance of the Condition the Estate is determined without any Entry .

CCXXXIX . 32 H. 8. In the Common Pleas.

NOte by all the Iustices of the Common Pleas , That if a man holds of the King in chief by Knights Service , and also holds of another Lord by Knights Service , and dyeth , his heir within age , and the King seizeth the Wardship of the Body and Land , and afterwards the heir cometh of full age ; and before Livery sued , the other Lord grants over his Seignory to another , and the heir Attorns , It is a good Attornment ; and also Seisin of the Services had by such Lord by the hands of such an heir before Livery sued , is good enough , and shall bind him afterwards in an Avowry , &c.

Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL . Sir William Hollis Case .

SIr William Hollis brought a Quare Impedit against the Bishop of Coventry , Godfrey Fuliamb Kt. and William Waltham Clark ; The Case was , Sir Ralph Langford Kt. was seized of the Manor of D. to which the Advowson was appendant , and presented to the same Church one A. his Clark , who was admitted , &c. And afterwards the said Sir Ralph granted the next Avoidance of the same Church to Sir Godfrey Fuliamb , James Fuliamb , George Fuliamb , and William Walton , & eorum uni conjunctim & divisim , afterward the said Sir Ralph granted by fine the said Manor with the Advowson to Sir William Hollis in Fee ; the Church became void , the said Sir Godfrey Fuliamb presented the said Waltham his Clark , who was admitted , &c. And upon Argument at the Bar and Bench , It was adjudged against the Plaintiff , and the Presentment of Sir Godfrey sole without the others , was good : Notwithstanding also that Waltham the Presentee was one of the Grantees of the next Avoidance , Tr. 31 H. 8. Rott. 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Case lately Reported in Sir George Mores Reports , by the name of Sir Godfrey Fuliambs Case .

CCXLI. Temps Roign Eliz.

NOte by Hind and Hales the Kings Attorney , Iustices of Assize in the County of Essex , in the Case of the Bishop of London and one Heron Keeper of Cronden Park : if the Keeper of my Park or any of his Servants without his assent , of their own heads , and without my commandment kill my Deers within the said Park , being within his keeping , or abateth , or pulleth down any house within the Park , or Barn for to lay Hay for the Deer there , or cutteth any Trees , Wood or Vnderwoods there growing , and sells the same , or gives it to another , that in all these cases the Keeper of the Park shall forfeit his Office ; And it was agreed by them , That such a Keeper hath not any estate or possession in the Park , or in the Lodge , but the possession remains always in the Owner of the Soil of the Park , and the Keeper hath but the occupation , and keeping , and the surveying of the same ; for such a Keeper cannot justifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park , but it was agreed that he who hath the inheritance in such an Office , shall not forfeit his Office for the causes aforesaid .

Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Case .

IN Ejectione firmae by Fitz against Pierce : Pierce was outlawed and now came , and shewed by way of Plea , that the outlawry was erronious in this , videlicet ad Com' meum tent' 30 Jan. 29 Eliz. whereas the said day was Dies Dominicus , and so there was no County Court : It was the Opinion of Windham , that the same matter did well lye in Plea , for it is matter apparent within the Record , as in the case of Brecket and Fish , Plowd . Com. 266. Rhodes and Periam were of a contrary Opinion , and said the case cited is not like to the case at Bar , for there it appeareth to the Court , as Iudges , when every Term beginneth and endeth ; but it is otherwise in our case , si 30 die Januarii be dies Dominicus necne , for it shall be tryed by the Country , &c.

Trin. 32 Eliz. In the Kings Bench. CCXLIII . Keenes Case .

RAlph Keene Vicar of B. was Indicted for stopping quandam viam valde necessariam , Indictment . Nusance . for all the Kings Subjects there passing : Exception was taken to it , because it wanted the word Regiam ; and the word necessariam doth not imply any matter , for a Foot way is necessary : Addition . Also here the Party hath not any addition : It is R. K. but it is not said Clarke , and for these causes the Party was discharged .

Trin. 32 Eliz. In the Kings Bench. CCXLIV . Peake and Pollorts Case .

ACtion upon the Case by Peake against Pollort , Words . upon these words , Thou art a malicious and sedicious man , and movest the Queens Subjects to Sedition : It was the Opinion of the Court , that the words were not actionable , for they were too general ; for it may be that the Defendant hath stirred up the Tenants of a Manor to Tumults and Sedition , which is not any great Scandal . And the Statute of 23 Eliz. is , If any Person do any thing to move the People to Sedition , the same is Felony ; but then it must be Sedition against the Queen ; and of that Opinion was the whole Court.

Trin. 32 Eliz. In the Kings Bench. CCXLV . Ratcliffe and Shirleys Case .

THe Lady Ratcliffe brought an Action upon the Case against Shirley , for these words , Words . My Lady Ratcliffe is a beggerly Lady , and giveth thread-bare Coats ; she bought Sheep , and cosen'd men of their money , and she is as very a Thief as he that robbeth by the High-way . Vpon Not Guilty , the Iury found that the Defendant spake these words , She is a worse Thief than he that robbeth by the High-way : It was holden that the words found by the Verdict were actionable , as well as if the Defendant had called the Plaintiff Thief generally . But it seemed to the Court , that upon that Verdict the Plaintiff should not have Iudgment ; for it may be that the Defendant dixit utrumque at several times ; and so several Causes of Action . And it is not like to the Case 3 Ma. 118. where part of the words is found , & quoad alia verba non dixit , and so expresly acquit him of the remnant , so it is not here , for this Verdict doth not acquit him of the other words ; and for that Cause Iudgment was stayed .

Hil. 26 Eliz. In the Kings Bench. CCXLVI . Herne and Crowes Case .

IN an Action upon the Case by Herne against Crowe , and declared , that whereas certain Irish Merchants had imported Furs here into England , which were offered to be sold in London ; which Furs the Defendant desired to buy , but because he was a Foreigner he could not buy them without peril of forfeiture , and then the Plaintiff was in communication with the Merchants to have bought them , that the Defendant in consideration that the Plaintiff promised to the Defendant , that when he had bought the said Furs , the Defendant should have such a quantity of the said Furs as he pleased upon equal price , assumed and promised that he would speak no more with the said Merchants for the buying of the said Furs ; yet , that notwithstanding he proceeded in the said bargain , and offered to the said Merchants sixty pound more than any other , by reason of which the Plaintiff could not have them for such reasonable price , as he might have had them before . It was holden by Wray Chief Iustice , That the Declaration here was insufficient , upon which the Defendant might have well demurred .

Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Case .

A Writ of Partition by Baker Heir of Gertrudi Marquess of Exeter , who devised all his Lands to Blunt , by which the third part descend to the Plaintiff , Estrepement . and prayed a Writ of Estrepement ; and it was the Opinion of the Court , that the Writ is not to be granted , for the Plaintiff may have a more proper remedy upon the Statute , Cum duo , vel tres , and in a Writ of Partition no Land is demanded .

CCXLVIII . Mich. Eliz. In the Common Pleas.

Conditions . A Man was bound in an Obligation that he should release all his right in Black Acre to the Obligor , and in the performance of the said Condition , he made such a Lease , and delivered the same to C. to the use of the Obligor . The Opinion of the whose Court was , That the Condition was not performed , because the Obligor had not the Lease in his own hands to plead , but is put to his Writ of Derinue against C. which was not the intent of the Condition .

Mich. 31 Eliz. In the Common Pleas. CCXLIX . Seaman and Brownings Case .

SEaman brought Debt , in an Obligation against Broshnin and others , Executors of one Marshall ; The Condition was , That whereas the said Marshall had sold certain Lands to the Plaintiff , If the Plaintiff peaceably and quietly enjoyed the said Lands against the said Marshall , &c and assigned the breach . That the said Marshall had entred upon them , and cut down five Elms there , upon which they were at Issue : And it was found that a Servant of the said Marshall had entred and cut them , and that in the presence of the said Marshall his Master , and by his commandment : It was the Opinion of the Court , that the Condition was broken , and that the Master was the principal Trespasser .

Trin. 30 Eliz. In the Common Pleas. CCL . Babingtons Case .

HUmphrey Babington brought a Writ of Disceit , and counted that T. S. was seized of Land , and held the same of the Manor of Rodely , which Manor is ancient Demeasn ; And that the said T. S. being so seized a Writ of Entre sur Disseisin was brought against him , in which T. S. pleaded and lost , and Iudgment was given against him . Et quod ipse Humphridus extitit Dominus Manerii praedicti , and concluded , ad exhaeredationis ipsius Humphr●di periculum manifestum . Exception was taken to the Count , because the words are , quod cum ipse existit Dominus Manerii praedicti : where he ought to say further , Amendment . Et tempore Judicii praedicti existebat ; for if the Recovery was before he purchased the said Manor , his Action doth not lye , which Rhodes and Anderson concesserunt , wherefore day was given to the Plaintiff to amend his Count.

32 Eliz. In the Exchequer . CCLI . Sir William Pelhams Case .

THe Case was , A. Tenant for life , the remainder in tall to B. &c. A by Deed indented and inrolled , bargained and sold the Messuage so conveyed to W. P. in fee , who suffered a common recovery , in which A. is vouched ; and so a common recovery had and executed ; and this was before the Statute of 14 Eliz. And if the recovery should bind B. and his remainder in tail was the question , or if it be a forfeiture . Altham argued that here is a forfeiture : 1. It is to see if a common recovery suffered by Tenant for life ( which here is the Bargainee ) be a forfeiture or no by the common Law , 1 Leon. 264. it s not forfeited . 2 Leon. 60 , 65. if no Execution be sued upon the same Recovery . 2. If it be executed , then , if he in the remainder may enter for the forfeiture . When the Tenant for life bargains and sells the Messuage , although upon it an estate in fee be limited , yet nothing passeth from him , but what he may lawfully pass , and that was the estate for life of the Bargainor , for such an estate only he might lawfully pass ; and here the Vendee is but Tenant for the life of another , and when of his own assent he suffers a common recovery , and that without right , it is a forfeiture : By matter in Fait a particular Tenant may commit a forfeiture , as well as by matter of Record : By matter in Fait he cannot commit a forfeiture , if not thereby the reversion be not pulled out of him in the reversion : As if a Lessee for 10 years make a Lease for 1000 years , it is not a forfeiture , for by that the reversion is not touched ; but if he by matter of Record do any thing which sounds to the disinheriting of him in the reversion , although in truth the same doth not touch the Inheritance , yet it is a forfeiture , Vid. 39 E. 3. 16. If Tenant for life pleads any thing against the right of him in the reversion , it is a forfeiture , and by Finchden and Belknap , he cannot plead in the right , 5 Ass. 3. Tenant for life is impleaded in a Praecipe by a stranger , and confesseth the Action , upon which the Demandant hath Iudgment , the Lessor enters , against whom the Demandant sueth Execution : The Lessor brought an Assise , and had Iudgment to recover , for it is a forfeiture , because the Tenant for life hath admitted the reversion in another , because it is an alienation to the disinheriting of the Plaintiff and of the Lessor : 12 E. 3. Fitz Resceipt 14. where Tenant for life pleaded in chief , or cannot deny or gainsay the Action of the Demandant , or makes default by Covin , he shall forfeit his Estate : But if a rent be demanded against Tenant for life , and he rendreth the same , it is no forfeiture , 12 Ass. 31. Tenant for life is impleaded by Covin , between him and the Demandant , and pleads in chief without aid prayer , upon which Iudgment is given , he in the reversion enters in a Juris utrum against Tenant for life , who pleads feintly , traversing the point of the Action , he in the reversion shall not be received ; for in as much as the Tenant hath traversed the Action , he is not within the Statute of West . 2. 3 , 5. Default , Reddition , but he in the Reversion may enter by the Common Law , 22 E. 3. 2. In Scire facias to execute a Fine against Tenant for life , who pleaded to the Inquest whereas in truth the Land in demand was not comprised within the Fine , Iudgment is given for the Demandant in the Scire facias , he in the reversion may enter : In our principal case , here is apparent and manifest Covin ; for the Tenant for life voucheth without cause , and this Recovery is by assent , and is to the use of the Vendee , who is Tenant for the life of another , and therefore , by the Common Law , he in the Remainder may enter before Execution sued : And it is well known that these common Recoveries are used for to dock Remainders in Tail , and that was the scope of this Recovery . And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat , who voucheth a stranger , the Demandant counterpleads the Voucher , and it is found for him , he in the Reversion hath no remedy but by a Writ of Right ; and if the Vouchee entreth , and loseth by Action tryed , or default ut supra ; that Book is to be intended of a Recovery executed ; for there in such case he in the Reversion hath not an Entry , but is put to his Writ of Entry by the Common Law , Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded , and prays in the Aid of a stranger , he in the Reversion may enter ; but if he doth not enter until the other hath recovered , then he cannot enter , but is put to his Writ of Entry , Ad terminum qui praeteriit , vel de ingressu ad Communem Legem , and therein he shall falsifie the Recovery ; and there , by Brook , Voucher of a stranger is not cause of Forfeiture , for it doth not disaffirm the Reversion in the Lessor : And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer : And so he argued , that before Execution he in the Remainder might enter but after Execution is put to his Action : But in our Case , although that Execution be good , yet he in the Remainder may enter , for it is found by Verdict , that at the time of the Recovery he was within age , and that when he dyed , that he in the next Remainder was within age , and then no Entry shall be imputed , and then he shall not be driven to his Action : As if Tenant by the Courtesie makes a Feoffment with warranty , and dyeth ; and the same descends to his Heir within age , yet he shall enter , although he hath not avoided the warranty in the life of his Ancestors : Also he said that the Statute of 32 H. 8. extended to this Case ; for Sir William Pelham the Vendee was but Tenant for life , and although that he be but Tenant for the life of another , yet he is Tenant for life as fully as if he were Tenant for his own life , ( or otherwise Tenant for life or lives . ) Note this , the words of the Statute . As upon the Statute of 20 E. 1. which gives Resceipt , de defensione juris , the words are , Cum quis aliquod breve Domini Regis impetret versus Tenentem per Legem Angliae , vel feod taliat' vel sub Nomine Dotis , vel alio modo , ad terminum vitae ; upon these words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another , that upon such an Estate , he in the reversion should be received , by reason of these words , vel alio modo ad terminum vitae , &c. And although he who enters at the time of the recovery , was not next in remainder to the particular Estate , yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery , and at the time of the entry he in the immediate remainder was dead , and then he the next in remainder . Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life , and he in a Praecipe brought against him , pleads in the right , or grants to another the said Services in Fee , it is not a Forfeiture , for it is no Discontinuance . It will be objected , That the words of the Statute of 32 H. 8. are , That such recoveries shall be utterly void , and if so , then he in the reversion cannot be damnified , and then no cause of Forfeiture . So that it may be easily answered , That where Tenant for life doth any thing which sounds to the disinheriting of him in the reversion , by matter of record , although the same doth not devest , or otherwise prejudice the Inheritance , yet it is a Forfeiture . Cook , to the contrary . Here in our Case is not any Covin in Sir William Pelham the Bargainee , he was deceived by the Bargainor ; for he did not know but that the Bargainor was seized in tail according to the Covenant in the Indenture , by which the Bargainor covenanted that he was seized in tail at the time of the Bargain ; and also to do any other act for assurance of the Estate of the Bargainee ; and it was lawful for him to Vouch his Bargainor , and although he voucheth a stranger , it is not a Forfeiture . 39 E. 3. 16. Aid prayer of a stranger is a Forfeiture , and the reason of that is , because he acknowledgeth the reversion to be in a stranger , and that is the cause of Forfeiture . Vide Book of Entries 254. Where upon Aid prayer , the Party to have Aid shewed such Special matter : But in our Case the Tenant for life hath vouched his Bargainor , and not without cause , for he hath a warranty from him , and the Demandant cannot Counterplead it , for he had a Seisin , whereof he might make a Feoffment . As to the Case 14 E. 3. Fitz. Resceit 135. Lessee for life in a Praecipe against him without Aid prayer pleadeth to the Enquest the first day , he in reversion may enter : It is true , he may enter , and enter into the Resceit , but not into the Land for a Forfeiture ; For then Fitzherbert would have abridged that Case in the Title of Entre Congeable , and not in the Title of Resceit : And the Book in 5 Ass. 3. is good Law , for there the Tenant doth confess the reversion to be in another ; but in our Case the Tenant voucheth , which is a lawful Act , and according to the Covenants of his Purchase . And although the recovery was by agreement , yet it is not for that a Forfeiture ; for if the Tenant for life voucheth truly , it is not a Forfeiture . Before the Statute of West . 2. cap. 3. which gave resceit to a woman , and to those in reversion , where the particular Tenant is impleaded , and made default , & reddere noluerit , no remedy for these Cases , but a Writ of Right , but no Entry ; and that was for the credit which the Law gave to recoveries , car si puissoit , then is resceit given , but that only in the two Cases aforesaid : But afterward , because it was found that many particular Tenants being impleaded , would plead faintly : The Statute of 13 R. 2. gave resceit in such case . And upon what reasons were these Acts made , if in such cases the Entry was lawful ? But after these two Statutes , another practise was devised ; for such particular Tenants would suffer recoveries secretly in such sort that those in the reversion could not have notice of it , so as they could not ante judicium , and prayer to be received ; for the remedy of which mischief the Statute of 32 H. 8. was made ; by which , all recoveries had against the Tenant by the Curtesie , or otherwise for life or lives , by agreement of the Parties , of any Land whereof such particular Tenant is seized , should be void as Tenant by the Curtesie , &c. should be void against him in the reversion : And yet an Evasion was found out of that Statute ; for such particular Tenant would make a Feoffment with warranty , and then the Feoffor should be impleaded in a Writ of Entry , and he vouch the Tenant for life , who should vouch over , and such a Recovery was out of the Statute of 32 H. 8. for the recovery was not against such particular Tenant , &c. For the remedy of which mischief the Statute of 14 Eliz. was made ; by which , it was provided that such recoveries had , where such particular Tenant shall be vouched , should ve void , if such recovery be had between them by Covin . And he conceived , That the Forfeiture is not in respect of the recovery it self , but of the Plea pleaded by the Tenant : And here in our Case there is not any Covin found , or that Sir William Pelham knew that he was but Tenant for life ; but it was found that the recovery was with their assent , and that was lawful , as this Case is , for they may agree to have such recovery for further assurance ; and so Sir William Pelham hath not vouched any but his Bargainor , and that according to their Covenants , and this Bargainor was not a bare Tenant for life , but had also a remainder in tail , although not immediately depending upon the Estate for life , which he cut off ; therefore it was not meerly a feigned recovery : And Vide 5 E. 4.2 . & Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger , it is not a Forfeiture , for it doth not disaffirm the reversion , &c. contra of Aid prayer , for a stranger may release with warranty to Tenant for life , upon which he may vouch : And he reported in his Argument , That Bromley Chancellor of England sent him to the two chief Iustices to know their Opinions upon these Points , and they were of opinion , That the Voucher of a stranger was not any Forfeiture , and also that after the recovery was executed , he in the remainder could not enter ; but they conceived that the right of him in the remainder was not bound : And he said , That after the recovery executed , he in the remainder could not enter , which see Br. Forfeiture 87. 24 H. 8. For if Entry in such Case had been lawful , infiniteness of Suits would follow , which would be a thing against the credit of recoveries . As to the Objection of the Infancy the same will not help the matter , 6 H. 8. Br. Saver default 30. Recovery had against an Infant in which he voucheth , and loseth , is not erronious ; contrary upon default : And if an Infant Tenant in tail suffereth a recovery , it is discontinuance , for in such Recovery Infancy is not respected . And in a Scire Facias upon a Iudgment had against the Father , the Heir shall not have his age . And he cited a Case out of Bendlowes Reports , 5 Eliz. Tenant for life , the remainder over to a stranger in Fee , Tenant for life is disseized by Covin , in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life , who entreth into the Warranty generally , and voucheth over the common Vouchee , It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had against the particular Tenant , but he was but Tenant in Law quia Vouchee ; and also the recovery is a good bar to him in the remainder , notwithstanding that he was within age at the time of the recovery . And at another time it was argued by the Barons , and Clark said , That he conceived that the Entry of him in the remainder was lawful : It hath been objected that Pelham did not know that the Bargainor had but for life , or that any other person had any remainder in the Land , that is to no purpose to excuse him ; for 42 E. 3. every Purchasor ought at his own peril to take notice of the Estates and Charges upon the Lands which he purchaseth : For the Law presumes that none will purchase without advice of Counsel , and without knowing the Titles of the Land . And although Statutes have been made to provide against the practises of particular Tenants , yet that is no Argument that no other remedy was before . And by Littleton , If Tenant for life joyneth the Mise upon the meer right , it is a Forfeiture . And he held strongly , That the Iudgment did not take away the Entry , a cause of Forfeiture being given before the Iudgment . 5 Ass 3. He in the Reversion after Iudgment and Execution may enter . See also 22 Ass. 31 to the same purpose . For where Tenant for life is impleaded he ought to wait upon him in the Reversion , and expect Instructions from him in defence , &c. and therefore if he maketh default , or confesseth the Action , it is a Forfeiture . And as to the supposed recompence , the same doth not help the Case , for this common Recovery is no other but an Assurance , and Recoverors are but Assignees , and they shall take advantage of Conditions by 32 H. 8. and a recoveror shall be seized to the use of him who suffers the recovery , if no other use be expressed . And he also held , that when Tenant for life bargains and sells his Land by Deed inrolled ; although no Fee passeth , 1 Leon. 264. 3 Inst. 251. b. Mores r. 212. 2 Leon. 60 , 65. yet it is a Forfeiture ; and that by reason of the Inrollment , which is matter of Record : And he said , that if an Infant Tenant for life be disseised , the Disseisor dyeth seized , and afterwards the Infant dyeth , that he in the remainder may enter : Gent. to the same intent : If Tenant for life , &c. the same is not simply a Forfeiture ; for he may have a Warranty , or a Release , or a Confirmation made to him : Attornment doth not give a right , but is only a consent , yet if he who hath nothing in the reversion will levy a Fine of it to another , and afterwards the Conusee bringeth a Quid juris clamat against the tenant of the Land , and he Attorns , it is a Forfeiture . Manwood to the same intent : This is a new Case , and I have not read the Case in any Book , nor seen any President of it : And it is a great Case , and a general Case , and worthy to be argued ; and I conceive clearly , that here is a direct and express Forfeiture at the Common Law , without any aid or restraint of any Statute to make it a Forfeiture : The dignity of Iudgment in the repute of Law hath been urged which ought to stand in force until they be reversed by Error , or Attaint ; And also Littleton hath been urged 481. where upon the Statute of West . 2. cap. 3. he saith , that before the Statute aforesaid , If a Lease had been made to one for life , the remainder to a stranger , and afterwards a stranger by feigned Action had recovered against the tenant for life by default , and also the tenant for life dyed , that he in the remainder had not any remedy : But there Littleton doth not report the same as his own Opinion , but as an Opinion conceived by a remainder upon the said Statute ; and it is in truth but a meer conceit . And as to the main point he took this diversity : Such Recoveries , in which the title of the demandant stands indifferently to the Court , and Non constat , if it be good or not , being suffered by tenant for life by default or confession without Aid prayer of him in the reversion , do not make any Forfeiture , although the tenant for life hath not dealt well with him in the reversion , not having prayed in aid of him : And in such Case , If a Lease be made for life , the remainder over in Fee upon such a recovery , he in the remainder shall have a Formedon in the remainder , or a Writ of Right , and shall not oust him who recovered without Action , and that by the Common Law. Then came the Statute of West . 2. cap. 3. which gave to the Wife Cui in vita upon a Recovery against the Husband by default , whereas before she had not any recovery but a Writ of Right , and notwithstanding her former recovery ulterius necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat , and if his right be not better than the right of him in the Reversion , he shall lose the Land , notwithstanding the Iudgment given before for him : And that Statute gave Resceit or Entry ad terminum qui praeteriit , and that Statute is to be intended of such Recoveries where a good , or at least an indifferent Title is so as non constat Curiae , if it be good or not : After that , Tenant for life was driven to a near shift , and would not make default , or lose by nient dedire , but would plead , but yet faintly ; for the remedy of which Mischief the Statute of 13 R. 2. was made , which gave Resceit in such Case ; the particular Tenant being restrained by that Statute : He jugled yet , and practised to suffer a Recover secretly , without notice of him in the Reversion : To remedy which Mischief the Statute of 32 H. 8. was made , and that made such Recovery had against such particular Tenant void against him in the Reversion . It hath been objected , That the Statute of 32 H 8. doth not give any Forfeiture in that Case , but makes that the Recovery be void , therefore he in the reversion ought to tarry till after the death of the particular Tenant : To that I shall speak after . But how our Case is a common Recovery , and constat Curiae , that the Demandant hath not any right , for the Tenant might have barred him , and in truth he who recovereth is but a Purchasor : Also this recovery is not to the use of the recoverer , but to the use of him who was Tenant in it , and not paramount , as in the Case of a recovery upon a good title , a Lease for years made by him who after suffers a recovery , is good and shall not be defeated by the recoveree ; otherwise it is where the recovery is upon a good Title . Vide Statute of Gloucest , cap. 11. Where upon default of the Tenant , resceipt is given for Lessee for years , yet if the Tenant vouch upon default of the Vouchee , the Lessee for years shall be received ; and now resceipt of Lessee for years is out of the Book , for by the Statute of 21 H. 8. he may falsifie : But no resceipt lyeth in the Case of a common recovery , for he who recovereth cannot oust the Termor . As to that which my Brother Clark hath said , That the Bargain and Sale in this Case is not any Forfeiture , but when the Deed of Bargain and Sale is inrolled it is a Forfeiture , I am not of that Opinion ; for although that the inrollment be of record , yet the Deed is not of record : for against the Deed inrolled a man may plead Infancy , although none can plead Non est factum to it . Also he held , that although by the Bargain and Sale , and the inrollment of it , the Bargainee had not Fee ; for by such act the reversion is not removed ; yet by the recovery , and the Execution of it , the Bargainee had gained the Fee out of the Lessor ; for the recovery is to the use of the Bargainee against whom it was had &c. It hath been objected , That he is only a Voucher , which peradventure was lawful in this Case , by reason of the Warranty paramount , or of a release or confirmation with Warranty , and two Cases have been vouched to such purpose , viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe , vouched a stranger , the Demandant counterpleaded the Voucher , which was found for him , he in the reversion had no remedy but by a Writ of Right : So if the Vouchee had entred and lost , &c. As to that Case we ought to consider , That every Book reported in our Law is not Law : But let us observe of what Authority the Case is , truly it is the conceit of the Reporter himself , for he puts the Case , and resolves it : but there is no Iudge or Serjeant named in the Case , &c. The other Case is 5 E. 4. 2. Note by Hendon clearly ; If my Tenant for life voucheth a stranger who entreth into the Warranty generally , and doth not know how to bar the Demandant , the Tenant shall recover in value , and the reversion of him who hath in value shall be to me in lieu of my former reversion : as release to Tenant for life shall enure to him in the reversion : But that is but the Opinion of one Serjeant , &c. But I answer to these Books , If the Demandant in such recovery have a good title so as the Tenant , or the Voucher , as Hendon saith , know not how to bar the Demandant there such a Voucher of a Stranger is not a Forfeiture , nor such recovery suffered thereupon : for against his will and volens nolens he suffered it : But if the Tenant had good matter to bar the Demandant , and no good cause of Voucher , that the vouching of a stranger , or suffering of a recovery is a Forfeiture of his Estate : And here in our Case , the Defendant had not any title , The Tenant or Vouchee had not any Warranty , or cause of Voucher ; But the Tenant might have barred the Demandant if he pleased . And he said , That the Voucher only doth not make the Forfeiture ; but much rather the Recovery ; for when Iudgment is given , and Execution had , then is the Fee plucked out of him in the reversion . 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture ; but here Pelham hath done more , for he hath gained Fee by the Iudgment , therefore à Fortiori it shall be a Forfeiture . But let us a little see , what medlings or attempts by the particular Tenant , are causes of a Forfeiture , and what not , 5 Ass. 3. Where A. brings an Entry against Tenant for life by collusion to oust B. of his reversion , supposing that the Tenant for life held of his Lease : The Tenant confesseth the Action , upon which Iudgment is given , B enters , and his entry adjudged lawful ; for that recovery is adjudged in Law but an Alienation to the disinherisin of him in the reversion ; and here it appears That such recovery by Covin , is but an Alienation , and without any strength of a recovery . And he cited many other Cases cited before by Altham , 14 E 3. Resceit 135. Where Tenant for life pleads in chief , or prays in aid of a stranger where he might bar the Demandant , and will not , it is a Forfeiture : And also 22 E. 3. 2. & 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conusee upon a Fine levyed by him who hath not any thing in the Land , the same is a Forfeiture , and yet that Attornment doth not divert the Reversion out of the Lessor . 50 E. 3.7 . & 8. Land was given by Fine in tail , the remainder over to a stranger in Fee , the Donee took a Wife , and dyed without Issue , the Wife accepted Dower assigned by a stranger , he in the Remainder brought a Scire facias against the Wife , that she is Tenant in Dower of the Assignment of a stranger , and pleaded to the Title , the Demandant recovered , she hath lost her Dower , for she hath not pleaded dutifully as she ought , being a particular Tenant . Temps H. 4. Tenant for life loseth his Land in a Recovery against him against his will , and thereupon brings Quod ei deforceat , and declares upon an Estate tail , and recovers , the same is a Forfeiture , because he hath challenged a higher Estate , &c. 5 H. 7. Tenant for life joyns the Mise upon the meer Right . 2 H. 6. Lessee for years being ousted , brings an Assise and recovers . 1 H. 7. Accepts a Fine of a stranger sur Conusans , &c. come ceo que il ad de son done . All these are Forfeitures . In our principal Case here , the Tenant who suffered the Recovery did not plead at all to defend the Right ; but where he might have barred the Demandant , he gave strength to his pretended Title , and made it a perfect Title , and by suffering the Recovery and Iudgment to pass , had taken away the Reversion out of the Lessor to whom he owed Fealty , and therefore it is a Forfeiture : And without doubt it is apparent to the Court , that the Demandant in this Recovery hath not any Title ; for the Recoverers in such Cases are but Assignees and Purchasors : which appeareth by the Statute of 7 H. 8. cap. 4. which gives Distress and Avowry to Recoverers , &c. As to the inventing of Recoveries , it was a necessary Device ; for it was to take away Estate tails which were the causes of grand Mischiefs and Inconveniencies in this Realm ; and it was great reason , for Tenant in tail might by the Common Law alien his Land post prolem suscitat , and then he had an Inheritance and might commit Waste : But he was so restrained by the Statute of Westm. 2. all the Realm , and the Subjects of it , were inveigled thereby ; Ioyntures of Wives , Leases of Farmers Mortgages to Creditors , Statutes , and other Assurances defeated by their deaths , which was against the Common Law and all Conscience : These matters tending to the knowledge of the Iustices , and the Mischiefs thereupon ensuing very frequent , and that Tenant in tail was become a perillous Fellow , and there was no safe dealing with him ; Then they taking into consideration that several Warranties and Assets , and collateral Warranty without Assets , for that in it self implyed Assets did bar him , Icil. the Entail , upon that consideration they grounded the practice and usage of common Recoveries ; so that by that means Tenant in tail has potestatem alienandi , as he had at the Common Law , because his authority was restored to him , and injury done to no man : But as to Tenant for life , he never had potestatem alienandi : And as to that which hath been said , That the Recovery shall stand in force till after the death of the Tenant for life ; and in our Case here , Tenant in tail is living ; certainly if the Law should be such , great mischief would follow , for then greater Ioyntresses , the Widows of great Persons , having allowed unto them great and sumptuous Houses , and Lands furnished with Timber of great value , might suffer such Recoveries and so having plucked the Fee out of the Heirs , might commit Waste , and the same should be dispunishable , &c. which should be an intolerable Mischief . And so he concluded that this suffering of a Recovery was a Forfeiture , and Iudgment was given accordingly .

CCLII . Grendon and Albanies Case .

JOhn Grendon brought Trespass for breaking of his Close against Tho Albany : And upon the pleading , the Case was , That Francis Bunny was seized , and 1 May , 20 Eliz. by Deed indented enfeoffed N. H. to the use of the said Fr. Bunny for term of his life , the Remainder to D. in tail , the Remainder to E. in tail , the Remainder over to F. in Fee : In which Deed of Feoffment a Proviso was , That if it should happen one P. P. to dye without Issue Male of his Body , that then it should be lawful for the said Fr. Bunny at any time during his life , by his Deed Indented to be Sealed and Delivered in the presence of three credible Witnesses , to alter , change , diminish or amplifie any use or uses limited by the said Deed , & aliquem usum vel usus inde alicui personae , &c. Limitare post mortem ipsius Fr. to begin : After which the said Fr. Bunny 1 Aprilis , 23 Eliz by his Deed Indented , did renounce , relinquish , and surrender to the said N. H. D. E. & F. all such Liberty , Power and Authority which he had after the death of the said P.P. without Issue , ut supra : And further remised , released , and quit-claimed to them the said Condition , Promise , Covenant and Agreement , and all his said Power , Liberty and Authority , and further granted to them and their Heirs , that at all times then after , as well the said Condition , Promise , Covenant and Agreement , as the said Power , Liberty and Authority should cease , and to all purposes should be void ; after which P. P. dyed without Issue , 1 Maij 23 Eliz. after which 20 March 24 Eliz. the said Fr. Bunny , by Indenture between him and the said D. Sealed and Delivered , ut supra , altered the former uses , and covenanted and agreed with the said D. that from thenceforth the said N. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs , &c. And note , that in this Case Fr. Bunny being but Tenant for life , enfeoffed one Tomson , upon whom the said D. entred for a Forfeiture . And it was argued by Altham , That by the Feoffment by Fr. Bunny to Tomson , the Liberty and Power aforesaid was not extinct or lost , for this Liberty and Power was not then a thing in esse , for then was P. P. alive ; and also the Liberty is meerly collateral to the Land whereof the Feoffment was made , 39 E. 3. 43. Fitz The Son and Heir apparent disseised his Father , and thereof made a Feoffment to a stranger , the Father dyed , now against his own Livery the Son shall not enter ; but if the Son dyeth , then his Son shall enter , which proves that the Livery is not so violent to determine a future right , but that afterwards it may be revived , à fortiori in our Case where the thing pretended to be extinct is meerly collateral . 36 E. 3. Fitz. garr . 69. In an Assise of Common , the Release of the Father with Warranty is not a bar , because it is of another thing . 15 H. 7. 11. Cestuy que use , wills by his Will , that his Feoffees shall sell his Lands , and dyes , the Feoffees make a Feoffment to the same use , yet they may well Sell , so as against their Livery , the authority to sell remains to them : And he put Brents Case , Dyer 340. A future use limited to a Wife which shall be , shall not be prevented by a Fine or Feoffment ; and so by the Statute of fraudulent Conveyances , 27 Eliz. cap. 4. where a Conveyance is made with clause of Revocation , if afterwards the party who made such a Conveyance , shall Bargain , Sell or Grant the said Land to another for Money , or other good Consideration paid or given , ( the first Conveyance not being revoked ) that then such former Conveyance against the latter Purchasor shall be void &c. The other matter was , admitting that the said Power and Liberty be not extinct by the said Feoffment , if by the Indenture of Renunciation , Relinquishment , Release , &c. it be destroyed ; and he said that a thing which is not in esse , cannot be released , Litt. 105. & 4 H. 7. 10. A Lease for years to begin at a day to come , cannot be released before it comes in esse , 11 H. 6. 29. Br. Damages 138. In Detinue , the Defendant would confess the Action , if the Plaintiff would release the Damages ; and the Plaintiff would have so done , but could not before Iudgment ; for before Iudgment the Plaintiff had not Interest in the Damages , but he is intituled to them by the Iudgment : So Lands in ancient Demesne are recovered at the Common Law , and Execution had accordingly and afterwards the Tenant releases to him who recovers ; and afterwards the Lord reverseth the Iudgment the Tenant notwithstanding his release may enter , for his Title which accrued to him by the reversal was not in esse , at the time of the release , Vide 98. contr. And it was adjudged 23 Eliz. in the Case of one Falsor , That where Lessee for years devised his term to his Wife if she should so long live , and if she dyed within the term , that then the residue of his term should go unto his Daughter , which should be then unpreferred , and dyed , his Daughter unpreferred , released to her mother all her right in the said Land , the mother dyed within the said term the release shall not bind the daughter , for that at the time of that release she had no title . Cook to the contrary : And he said , That by the Feoffment the said Power and Liberty is extinct : And he agreed the Case cited before 15 H. 7 for in such Case the Vendee of the Feoffees shall be in by the Devise , and not by the Feoffees . 9 H. 7. 1. The Husband makes Discontinuance of the Lands of his Wife , and takes back an Estate to him and his Wife by which the Wife is remitted they have Issue , the Wife dyeth the Husband shall not be Tenant by the Curtesie ; for he hath extinguished his future right by his Livery . 12 Ass. P. ultimo . A Praecipe against A who loseth the Land by an erronious Iudgment , and after Execution had , enters upon the Demandant , and makes a Feoffment , his Writ of Error is gone , 38 E. 3. 16. In a Scire Facias to execute a Fine , the Plaintiff recovers , and makes a Feoffment in Fee , and afterwards the Tenant by Scire Facias by Writ of Disceit reverseth the Iudgment , now the Plaintiff in the Scire Facias shall not have a new Scire Facias , 34 H. 6. 44. A. recovers against B. by false Oath , and after Execution had , B. enters and makes a Feoffment to a stranger , who Enfeoffs him who recovers , it is a good Bar in an Attaint . 27 H. 8. 29. The Feoffees to an use are disseised , the Disseisor Enfeoffs Cestuy que use , who Enfeoffs a stranger , now by that Feoffment his right to the use is gone . And as to the release , the same is not properly a release , but rather a defeasance to determine the Power and Authority aforesaid , as if A enfeoffed B. with Warranty , and afterwards B. covenants with A. that the said Warranty shall be void , the Covenant shall enure to defeat and determine the Warranty . And afterward Iudgment was given against the Plaintiff .

CCLXXIII . Sir Francis Englefields Case . Vide this Case Reported by Cook in Rep. 7. and by Popham 18.

THe Case to recite at large was this : Sir Francis Englefield Kt. being seized in Fee of the Manor of Englefield in the County of Berks , and of divers other Lands in the first year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time , and remained out of the Realm in the parts beyond the Seas above the time of his Licence , whereby the Queen by her Warranty under her Privy Seal required him to return , upon which he was warned , but did not come ; whereupon the Queen seized his Lands for his contempt . After which the Statute of Fugitives was made 13 Eliz. upon which by Commissions found upon this Statute , all his Lands were newly seized ; and afterwards 17 Eliz. by Indenture made between him and his Nephew , and Sealed by the said Sir Francis at Rome , the said Sir Francis covenanted with his said Nephew , upon consideration of Advancement of his Nephew , and after consideration to raise an use , that he and his Heirs , and all others seized of the said Manor , &c. shall hereafter stand and be seized of them , to the use of himself for the term of his life , without impeachment of Waste , and afterwards to the use of his Nephew , and of the Heirs Males of his Body , and for default of such Issue , to the use of the right Heirs and Assigns of the Nephew for ever , with a Proviso , that if the said Sir Francis shall have any Issue Male of his Body , that then all the said Vses and Limitations shall be void and that the said Manors , &c. shall be as before . Afterwards the said Sir Francis was attainted of Treason , supposed to be committed by him , 18 Eliz. at L. in partibus transmarinis ; and the Attainder was first by Outlary , and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the said Condition was given to the Queen ; and at the same Parliament it was Enacted , That all and every Person and Persons , which had , or claimed to have any Estate of Inheritance , Lease , or Rent , they not entred of Record , or certified into the Court of Exchequer , of , into , or out of any Manors , Lands , &c. by or under any Grant , Assurance , or Conveyance whatsoever had or made at any time after the beginning of her Majesty by any persons attainted of any Treasons mentioned in the said Act , after the 8 day of Feb. 18 Eliz. or within two years next ensuing the last day of the Session of the said Parliament , shall openly shew in the Court of the said Exchequer , or cause to be openly shewn the same , his or their Grant , Conveyance or Assurance , and there in the Term time , in open Court , the same shall offer , and Exhibit , upon his or their Oath , affirming that they have not the same , nor can come by it , or that it was never put in writing , then the Effect thereof to be entred and inrolled of Record , or else every such Assurance should be void , and of none Effect to all intents and purposes , saving to every person and persons , ( other than the parties and privies to such Conveyance , and such as shall not Exhibit the said Conveyance according to the true meaning of this Act ) all such rights , &c. Whereupon the said Francis the Nephew , the 20 day of November , 30 Eliz. in his own person affirmed upon his Oath , that he had not the said Conveyance , nor knew not how to come by it , but delivered the Effect of the Assurance , omitting the time when it was made , otherwise than that it was made after the beginning of the Queens Reign , and before the Treason committed by Sir Francis , and before the Statute of 13 Eliz. against Fugitives , and omitting also the last clause of the tender of the King ; and this he offered openly in the Court of the Exchequer the same day : After which the Queen being moved with the said Condition , made a Warrant by Letters Patents under the Great Seal , dated 17 Martii , 13 Eliz. to Rich. Broughton and Henry Bourcher Esquires for her , and in her place and stead , to deliver or tender to the said Francis the Nephew a Ring of Gold , to the intent to make void the uses and limitations limited by the said Indenture , and to return their proceedings upon it into the Court of Exchequer ; whereupon they made a tender of a Ring of Gold to the said Francis the Nephew the 18 day of November , 31 Eliz. which he refused to receive . And the two years after the said Session of Parliament was the 13 day of March 31 Eliz. and the said Broughton and Bourcher returned all this that they had done as before , with their Commission out of the Exchequer : And this Case being a great case , and consisting of many doubts and questions , was often argued . And this Term , scil. 33 Eliz. It was argued by Moor of Counsel on the part of Francis Englefield ; and he said , when Sir Francis Englefield covenanted to stand seized to the use of himself for life , &c. this was not any new use , but part of the ancient use which was in Sir Francis before , for there was no Consideration to raise a new use to himself ; for a Consideration is a cause , or an occasion meritorial requiring a mutual recompence in fait , or in Law , Dyer 16 Eliz. 33. b. mutual . 1. of each part , and here this ancient use remaineth . For Sir Francis cannot simul & semel agree and suffer , and here is a bare Covenant without any Consideration on the part of Sir Francis , which see Dr. and Student 100. cited by Br. Feoffments to Uses 46. A man cannot limit an use to himself to be a new use upon an Estate executed , as upon a Feoffment , but it shall be the ancient use ; much less upon a Covenant . And that was Milfords Case , Pasch. 31 Eliz. Rot. 154 in the Kings Bench , where an use limited to the right Heirs of the Feoffor was holden the ancient use , quod vide also in the case of the Earl of Bedford , and there is no difference between our case and the said cases , unless in the said cases the use is limited in the end , and in our case in the beginning of the Conveyance . But perhaps it will be Objected , That the particular Estate shall be good for necessity for to support the Estate limited in the Remainder , which is limited upon good consideration , for otherwise the Remainder shall be distrained : That is not any reason , for that conceit in Bayntons case in Plow . Com. 307. 8 Eliz. hath been over-voted to be no Law in the case of the Lord Paget in this Court very lately . And he said , That the condition conceived in the Proviso is not given to the King. By the Common Law in case of Escheat , the party comes in the Post ; but a Condition runs in privity : And although the Statute of 33 H. 8. gives to the King Conditions , yet it doth not give the performance of them , or ability to the King to perform them . And there are three Reasons wherefore this Condition cannot pass to the King : 1. There is a Condition in the Proviso which precedes the Condition of the Tender , viz. If the said Francis my Nephew be given to intolerable Vices , then if the said Sir Francis deliver or offer , &c. and in the whole pleading it is not averred , that the Nephew was given to intolerable Vices ; therefore the precedent Condition not being performed , the second Condition is not ripened , nor in season . 2. The substance of this Condition consists in the will and pleasure of Sir Fr. Englefield , therefore it cannot be given to the Queen . 3. The prejudice which should come to Francis the Nephew if this Condition should come to the Queen , Vide Br. Temps H. 8. A Foundership cannot Escheat , or be forfeited by Attainder of Felony or Treason , for it is a thing annexed to the Blood which cannot be separated ; and he said also that the Condition was gon before that tender , for the Conveyance by which the Condition was granted , was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted , That every person within two years after the last day of this Session shall openly shew and bring forth into the Exchequer his Conveyance , and there in the Term time , in open Court shall Exhibit the same to be entred and inrolled of Record ; and here the end of the Session was such , that all the Terms of the said two years were passed before the tender made by the Queen ; and although the two years were not past , yet all the Terms were past , and the Conveyance ought to be shewed in Term time , therefore the true time is incurred before the Tender , and then the Conveyance is void , and by that the Condition gon . When the Queen was Tenant for the life of Sir Francis , and makes a Lease for years , and afterwards by the Condition hath the Inheritance , if now she shall avoid the Lease made by her when she was Tenant for life ? A Disseisor makes a Lease , or grants a Rent-charge , and afterwards the Disseisee releases unto him , he shall not avoid his own Act. A man seized in the right of his Wife makes a Lease for years , hath Issue , and so is intitled to be Tenant by the curtesie ; the Wife dyeth , he shall not avoid his Lease : Feoffor and Feoffee upon condition joyn in a Lease for years , the Condition is performed on the part of the Feoffor , he shall not avoid his Lease : And the Prerogative of the Queen shall not alter the matter against aequum & bonum : As to the Statute of 29 Eliz. it was not the intent of that to avoid Estates claimed for , or by the Queen ; for the Estate was made for the benefit of the Queen . As to the words of the Statute , every person or persons which hath , or claimeth to have , &c. the Queen is not within the words . If a Statute ordains attendance , or restraint of any Liberty which was before at the Common Law , there the Queen shall not be within it : As to attendance , the Queen is not bound to make claim upon a Fine levied : As to re-grant , the Queen is not bound by the Statute of Westm. 3. Quia emptores terrarum : also where matter of penalty is imposed . Also here is an Oath to be taken , &c. the Queen being Tenant for the life of another , leaseth the Woods , and grants to the Lessee power to cut the Woods , and convert them to his own use . Now , if after the Inheritance cometh to the Queen , if the Queen may impeach her Grantee ; truly the property of the Woods and Trees was in the Queen at the time of the Grant , and although the Inheritance came to the Queen afterwards , yet the same shall not overthrow the first Interest of the Grantee . Lessee for life , or for years , before the Statute of Gloucester , could not be impeached for Waste ; therefore , as I conceive , the property of the Trees was in him , for there was no remedy for them against him . See the reason of that in Dr. and Student , Quasi , the property of the Trees pass to the Lessee with the Demise , which shall be taken strongly against the Lessor . If the Lessee cutteth the Trees , the Lessor shall not have Trespass against him , nor Detinue for the Trees . Lessee without impeachment of Waste cutteth the Trees , and leaves them upon the Land , and dyes , his Executors shall have them , and not the Lessor . The Lessor grants omnes boscos , & arbores suas , nothing passeth , for they pass to the Lessee , if they be not excepted . The Lessor against his own Lease cuts the Trees without the agreement of the Lessee , Trespass lyeth , 5 H. 4. 56. The Heir being in Ward , cut Trees in his Lands in the possession of his Guardian , who brought an Action against the Heir , it was adjudged maintainable , although the Free-hold was in the Heir . Egerton Solicitor to the contrary . Admit the use in Sir Francis be the ancient use , yet it is but for life ; and then when the Queen , having the Estate of Sir Francis , makes a Lease for 40 years , with the grant of the woods , the said Lease was void , for the Queen was deceived in her Grant : Sir Francis was punishable for Waste ; therefore the Queen having his Interest , ought not in Iustice to have cut the great Wood. And it is to be presumed , That if the Queen had known the smallness of her Estate , she would not have made so great a Lease , nor such a Grant of the Wood. The King seized of Land in his own right , reciting by his Letters Patents , that he hath it by Attainder of J. S. gives the same to another , the Gift is void . The King licenceth one to appropriate an Advowson , without being informed that the same is holden in chief , it is void . A licence to alien , whereas in truth the Land is holden in tail , the Reversion or Remainder in the King , is also void ; and here in our case , the Queen hath but a particular Estate for the life of another , and here out of that petty Estate is drawn a Lease for 40 years , where Lessee for life was 60 years of age at the least , and also a Grant of all the Trees : If the Queen hath a particular Estate , and grants totum Statum suum , without reciting of such particular Estate , the Grant is void ; the Queen hath the Profits of the Lands of one who is Outlawed in a personal Action , and grants to another the Land it self , it is void , for it is a wrong to a third person , which the King cannot do . But here , the Special Interest of the Queen ought to be recited ; Now when the Queen being Tenant for the life of another , makes Leases ut supra , and afterwards the Fee cometh to the Queen , the Estate out of which the Leases are derived being determined , the Leases also are determined , scil the Estate for the life of another by the accession of the Fee-simple , and the Queen is in by a new right : It was adjudged 29 Eliz. here , That where the Queen had the Land of a Fugitive for the life of another , and leased the same to another Quam diu in manibus nostris fore contigerit and after the Fee-simple of the Fugitive came to the Queen by his Attainder , the same Lease was void . King E. 6. gave to his Sister Mary Manerium de B. for her life , secundum tenorem & effectum Testamenti sive ultimae voluntatis of King Hen. 8. whose Will was , that she should have it as long as she remained unmarried ; she granted a Rent-charge , King E. 6. dyed , by which the Fee descended to the said Mary , being Queen of England : and afterwards she married . He made it a Quaere , if the Rent be not gone . Dyer 3 & 4 Phil. & Mary 240. But Bendloes Reports the same Case to be adjudged , That the Rent was gone . Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea , his Licence expired , the Queen directed to him a Privy Seal with her Commandment to return , which he received , but did not return , but adhered to the Queens Enemies there , upon which the Queen seized his Lands , and 8 Eliz. granted a Manor parcel thereof , and all profits thereof , quam diu in manibus nostris fore contigerit , afterwards by Act 14 Eliz. ( for there was some doubt if the Queen might make Leases , grant Copyholds or usual Woodfalls of such Lands , or only take the ordinary profits thereof , as vesturam terrae ) it is explained , that during the Interest of the Queen , she might do , ut supra , as Tenant for the life of another might do , upon which a new Seizure was made for the Queen , and a Steward appointed by the Queens Letters Patents , who held a Court , and took Surrenders in the hand of the Queen , and granted Admittances , &c. And it was resolved by the two Chief Iustices , That the two Seizures gave not the Queen any other or better Seisin in the said Manor than she had before , by the first Seizure at the Common Law , notwithstanding both the said Statutes , and so the Courts holden by the Queen void , and all Surrenders and Admittances also : And so it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded , That if by the said Statutes , or any of them had had a new right , the last Copy had been good , notwithstanding the Grant of the Manor before : Also for 8 Ass. the King grants Custodiam terrae & haeredis quam diu in manibus nostris fore contigerit , the Heir being a Daughter , and after a Son is born , now the Grant of the King is void ; Tenant in tail , the Reversion in the King discontinues , the Discontinuee is attainted , the King seizeth , and leaseth for years , Tenant in tail is attainted of Treason ; now the Queen shall avoid her own Lease . So if the Disseisor be attainted , upon which the Queen seiseth , and leaseth , and afterwards the Disseisee is attainted : And he cited the Case of the Abbot of Colchester , 13 Eliz. The Abbot committed Treason , and afterwards by the Statute , or by Surrender , the Abby came to the Crown , who leased the Land for years , the Abbot is attainted of the said Treason ; now the King shall be seized by force of the Attainder , and shall avoid his Lease . As to the Leases made to the Defendant by the Queen , one was made after the Statute of 29 Eliz. and the same is not saved by the saving there ; for the words are , of Estates then in esse . 1. Such Estate as they had before the making of the Act : As to Leases made before they are drowned in the Fee-simple , which accrued to the King by the Attainder &c. and here by this Statute , the Estate of the Queen for the life of another is not saved by the Statute , and then the Leases derived out of it are not saved . The Queen is not bound by the said Statute to exhibit any Conveyance , for she shall not take any Oath , according to the Statute ; and if the Queen be not within the Body of the Act , she is not within the saving . Now as to the Condition , The Statute of 33 H. 8. gives to the Queen Vses , Rights , Conditions . It hath been Objected , That such Conditions are intended to be given to the King , which are to be performed on the part of the Donee , Lessee , Grantee , Covenantee , but not on the part of the Grantor , &c. For it was in the will of the Grantor if he would perform them or not , and a Will cannot be transferred over . But as to that it may be answered , That a Will by Parliament may be transferred over , for Parliamentum omnia potest . It hath been Objected . If that shall be said the Will of Sir Francis . which now is the Will of the Queen , it shall be a great prejudice to Francis Englefield the Nephew ; for now he shall be doubly bridled by his Vncle , and by the Queen . It hath been Objected , That here is a Conditional Condition , 1. If the Nephew shall be given to intolerable Vices , and it is not added to enable the Queen to take advantage of the Condition , that he is otherwise than of good behavior and conversation but the words of the Proviso clear the matter , 1. Lest he should be given to intolerable Vices , and not if he be given , &c. So as it is not a Condition to a Condition , but a Motive to a Condition . And the Statute of 29 Eliz. by which Sir Francis was attainted , gives to the King all conditions . It hath been objected , that in the said Statute of 29 Eliz. is a saving , by which Leases made by the Queen are preserved : But if that Proviso be well observed , it doth not extend to our case . 1. That Act extends to make void any Grant , Lease , &c. made by the Queen after the Treason committed , &c. but that shall be of such force , as if the said Act had not been made . As to that I say , That this Statute doth not add or detract from such Leases , but leaves them as it found them ; for the Statute gives to the Queen the Condition , which Condition avoids the said Leases ; for it avoids the Estate of the Queen out of which the said Leases are derived : And although that the Conveyance , as to the benefit of Sir Francis or his Nephew , be void by the Statute for not Inrollment of them , yet it is not utterly void as to the Queen also . The Statute of 1 Eliz. Enacts , That Leases made by Bishops against the Form of the Statute , shall be void : Yet they shall not be void against the Bishop himself or against the Lessor : Exception hath been taken , for that the tender of the King is not found by Office : But he needs no Office , for the tender is the Act of the Queen her self , there she ought not to be informed of it ; for to what purpose shall the Queen be certified of that which she her self hath done : The Queen makes a Lease for years , upon Condition that the Lessee surrender to her the Manor of B here for the not doing of it , no Office is requisite . Tenant of the King in Capite aliens by Fine , that needs no Office , for that appears upon Record ; so here . And although the Condition be returned in the Exchequer after the Term ; yet it is well enough , for the Exchequer is never shut , as to take and receive Money , Certificates made to be Inrolled ; although it be shut as to all Iudicial Acts. And although no tender at all be certified , it is not to the purpose , for the tender makes the Estate void without any other thing : And it is not like to a Capias ad satisfaciendum , for that is Ita quod Habeas Corpus , &c. therefore the Arrest is not sufficient by it self ; but the same ought to be remembred with an Ita. quod , &c. But as to that which hath been said , That the Queen shall not avoid her own Lease , the same is not so , nor in case of a common Person : As if Tenant in tail enfeoffeth his Heir within age , who makes a Lease for years at his full age , Tenant in tail dyes , Now the Issue shall avoid his own Lease , for he is remitted : A Disseisor levies a Fine to a stranger , the Disseisee enters upon the Conusee , and enfeoffs the Disseisor , now he shall avoid his own Fine , à multo fortiori in the Case of the King. Now it is to see . If the Grant of the Wood by the Queen , being Tenant for the term of anothers life , be good , or not . He conceived it was not ; for she was deceived in her Grant , not knowing that she was but a particular Tenant : It was Objected , That the Queen hath property and right in the Trees and Woods , forasmuch as no Waste or Trespass lyeth against her if she cast them down : Certainly the Lessee , if the Trees and Woods be not excepted , hath the property in them , but not the absolute property , for the Writ of Waste shall say , ad exhaered' Q●erentis , for he cannot cut them , Id enim tantum possumus , quod de jure possumus , perhaps the Lessee shall have the Wind-falls , because they are severed from the Inheritance by the act of God , not of the Lessee himself ; and see 27 H. 6. Waste 8. and also in Statham titulo Waste . A. leaseth to B. for life , without impeachment of Waste , a stranger cuts Trees , and the Lessee brings Trespass , he shall not recover damages for the value of the Trees ; for the property of the Body and the Tree is in him who hath the Reversion , he may give it , by which it appeareth , that the Lessee is not to recover , but only for the cropping and the breaking of his Close , à fortiori in case where the Lease is made without the clause absque impetitione vasti , as the Case at bar is : And therefore when the Queen having so feeble an Estate , makes such a Grant , scil. Grants all the Woods &c. the Grant is void , for she was deceived in her Grant ; by which ( if it should be good ) she should wrong her Subject : A Grant to the Queen shall have a reasonable construction ▪ as the Grant of a common Person . A. grants to the Queen Common in all his Lands , the Queen by that Grant shall not have Common , but in Lands commonable , not in his Land where his Corn is growing , or in his Orchard , or Gardens : Tenant for life grants all the Wood upon his Land , nothing passeth but that which he may lawfully grant . So in Cases of Grants of the King , 22 Ass. 49. the King grants to one bona & catalla tenent' suorum , fugitivorum & qualitercunque dampnorum ; the Grantee shall not have the Goods and Chattels of one who hath killed the Kings Messenger . So in Grants of Amercements , the Grantee shall not have a Special Amercement &c. So here , the Grant of all Woods ought to be intended of such Woods ( as Vnderwoods ) which the Queen might lawfully grant without wrong to another . And he said , That when the Queen hath granted the Land and the Woods for 40 years , that Grant cannot be divided ; and the words of the Grant are , That it shall be lawful to cut the Woods during the space of 43 years : Now forasmuch as the Lease is surrendred ut supra , the liberty of cutting the Woods is gon also . A man bargains and sells his Manor with all Woods upon it growing , the Deed is not Inrolled , so as the Manor doth not pass , the Woods shall not pass in gross , for the Grant shall not be divided . See more after Sect. 276.

Trin. 31 Eliz. In the Kings Bench. CCLIV . Brown and Peters Case .

PHilip Brown Executor of Eliz. Brown , brought an Action upon the Case against John Peter , as Executor of W. Brown , and declared , That the said William Brown was indebted to the said Eliz. in 80 l. Cumque ad specialem instantiam of the said William Brown , It was agreed , that the said William Brown should retain the said Sum in his hands until the said Eliz. should come of full age : In consideration thereof he promised to give her 100 l. It was found for the Plaintiff , who had Iudgment to recover , and now the Defendant brought Error , and assigned for Error , because the place of the Agreement was not shewed , Sed non allocatur ; for that is the Consideration which is not traversable ; also it is not shewed certain , that Brown retained the 80 l. for so long time , Sed non allocatur , for he shews in his Declaration , That the said Sum was in the hands of the said William Brown , and it shall be intended that so it there continued .

Trin. 31 Eliz. In the Kings Bench. CCLV. Higham and Cookes Case .

EJectione firmae by Higham against Cooke , The Plaintiff declared upon a Lease for years , to have and to hold to him from the Sealing and Delivery of it ; and declared that the Sealing and Delivery was 1 Maij , and the Ejectment the same day : And this matter was moved in Arrest of Iudgment , that the Ejectment could not be supposed the same day , for the Lease did not begin till the next day ensuing the Sealing , Ejectment . &c. But the Exception was not allowed by the Court ; for where the Lease is to begin from the time of the Sealing and Delivery , or by these words for 21 years next following , the Ejectment may be well supposed to be the same day ; for the beginning of the Lease is presently upon the Sealing and Delivery , and such a Lease shall end the same time and hour as it began .

CCLVI. Trin. 28. Eliz. In the Kings Bench.

IN an Action upon the Case upon Assumpsit , the Case was ; Land was devised to a Feme-sole for term of her life , and she let the same to the Plaintiff for 5 years , to begin after the death of the said Woman , and afterwards by Deed bearing date 18 October , leased the same Land to the same Plaintiff for 21 years to begin at Michaelmas before , and in pleading , it was shewed , That virtute cujus dimissionis ( posterioris ) the Plaintiff entred , & fuit possess . crastino Michaelis . which was before the making of the Lease , and the Plaintiff in his Declaration declared , That the Defendant in consideration that the Plaintiff had assigned to him the said Leases , had promised to pay to him 630 l. It was found for the Plaintiff . Cook , For where the Plaintiff in an Action upon the Case declares upon two Considerations , in such Case although the one be void , yet if the other be good and sufficient , the Action is maintainable , but the Damages shall be given without respect had to the Consideration insufficient , and the Plaintiff was to declare upon both Considerations ; for the Assumpsit upon which the Action is conceived , was in consideration that both the Leases were assigned to the Defendant , and our Declaration ought to be according to the Assumpsit , and it was not material , although that one of the Considerations was utterly void . Another Exception was taken , Because the Lease is set forth to be made 18 October , and that by virtue thereof the Plaintiff entred , Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Disseisor , and then being in by disseisin , he could not assign his Interest to another , and that appears clearly to the Court upon the whole matter . But Cook said , That shall not hurt us , for it is but matter of surplusage to say , Virtute cujus , &c. As 20 H. 6. 15. the Plaintiff in Trespass supposed by his Declaration , that the Trespass for which the Action was brought , commenced 10 H. 6. with a Continuando until the day of the Action brought , viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris , Anno 17 H. 6. And Exception was taken to the Declaration , because the continuance of the time was not put in certainty . But the Exception was not allowed , for it is certain enough before the viz. the day of Writ brought , and so the viz , is void , and all that which follows upon it . And so here , this Clause Virtute cujus est , totum sequitur est omnino void , 7 H. 4.44 . Br. Action upon the Case 37. The Writ was Quare Toloniam asportavit , & illud solvere recusavit . Exception was taken to the repugnancy , for it would not be carried away , if it were not paid before ; yet the Writ was awarded good , and the first word Toloniam asportavit holden void : So here in the principal Case . As to the other Exception , it is clear , That here is not any Disseisin upon this Entry of the Plaintiff before the making of the said Lease ; for there was a Communication betwixt the Parties of such a Lease to be made , or of such an Assignment , and peradventure the Entry was by assent of the other part , and then no Disseisin . And posito , it should be a Disseisin , yet the Plaintiff hath assigned all the Interest quod ipse tunc habuit , according to the consideration , and delivered to the Defendant both the Indentures of Demises , and so he hath granted all that which he might grant : And if it be a void Assignment or not , is not material , for quacunque via data , the Consideration is good , and then the Assumpsit good also . Egerton Solicitor contrary : In every Action upon the Case upon Assumpsit , three things ought to concur , Consideration , Promise , and breath of Promise ; and in this Case the Assignment of the Lease to begin after the death of the Lessor , is void , being but Tenant for life , and no Consideration upon the confession of the Plaintiff himself . And upon the second Consideration it appeareth , the Lessor , viz. the Wife who held for life , had but a right to the Land demised , for she was disseised ; for he to whom the Land was after let , entred before the Lease was made ; for it doth not appear that he entred by force of any agreement made before the Lease ; therefore by his Entry he was a Disseisor . It was also moved , That here was not any sufficient consideration , for by a bare or naked delivery Nihil operatur ; and here is not any word of Give or Grant. To which it was answered , That the delivery of the Indenture was not a bare Bailment , but a Delivery to the use in the Indenture , and so it is pleaded , and therefore thereby an Interest passed , for such a delivery cannot be countermanded . An Indenture with an Averment shall never make an Estoppel . Clench Iustice , If I deliver any thing to one for his proper use , an Interest passeth ; but if it be to the use of another , no Interest passeth : The party may have usum , but not proprietatem .

CCLVII . Mich. 18 Eliz. In the Kings Bench.

Contract . IF a Contract be made betwixt two here in England , scil . that one of them shall carry certain Goods of the others to Burdeux in France , and sell them there , and with the mony thereof coming , shall buy other Goods for the use of him who was the owner of the first Goods , and safely them deliver to him in London : If now the party sell them in Burdeux , and buyeth others with the monies thereof , and brings them into England , and there converts them to his own use ; upon this matter an Action lyeth at the Common Law for the Contract , and the Conversion being the cause of the Action , was made in England : But if the Contract only was in England , and the Conversion beyond the Seas , the Party at his Election may sue at the Common Law , or in the Court of Admiralty : And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath sent to him , and to Merchandize with them for his use ; if the Factor receiveth them , and converts them to his own use , the Father shall be sued in the Admiralty .

25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Case .

IT was agreed by the two Lord Chief Iustices , 1 And. 308. upon conference had with the other Iustices in the Case between the Earl of Huntington and the Lord Mountjoy , That where the Lord Mountjoy by Deed indented and inrolled , bargained and sold the Manor of Camford to Brown in Fee , in which Indenture a Clause was Proviso semper ; and the said Brown covenants and grants cum and with them the Lord Mountjoy , his Heirs and Assigns , That the said Lord , his Heirs and Assigns , might dig for Ore in the Wasts of Camford . And also to dig Turf there to make Allom and Copperice , without any contradiction of Brown , his Heirs and Assigns ; that now here is a new Grant of an Interest to dig , to the said Lord and his Heirs in the Lands aforesaid , and not a bare Covenant ; and it was holden also , that the said Lord could not divide the Interest granted to him in form aforesaid , viz. To grant to another to dig one part of the said Waste , &c. But they were of Opinion ; That Brown , his Heirs and Assigns , notwithstanding the said Grant to the said Lord , Owners of the Soil there might dig there . It was further moved in this Case , That the said Lord had demised the said Interest to one Laycott , who assigned it over to A. and B. and if the said Assignment to two were good or not , was a further question ; for if to two , so he might do to twenty , and so a surcharge might be to the Tenant of the Soil . And as to that , the said Iustices were of Opinion , That the said Assignment to two was good : But the two Assignees ought not to work severally , but together , with one Stock , and with such Workmen as belonged to them two . And Note , it was holden in this Case , That this word ( Proviso ) being coupled with other words of Covenant and Grant , did not create a Condition , but should be of the same nature as other words of Grant.

CCLIX . Pasc. 25 Eliz. In the Common Pleas.

IT was found upon a Special Verdict in Trespass , that the place where , &c. was Copyhold Land , and that the Custom there is , That every Feme covert there might devise her customary Lands to her Husband , and surrender the same in the presence of the Reeve , and six other persons ; and it was further found , That A. was seized of certain Copy Land , having Issue B. and C. his Daughters , and dyed , they both took Husbands , and B. devised her part by her Will to her Husband in the presence of the Reeve and six other persons , and afterwards at another day she surrendred to the use of her Husband , who was admitted accordingly : the Wife dyed , the Husband continued the possession , and the Husband of the other Daughter brought Trespass . Rhodes Serjeant , The Custom is not good , neither for the Surrender , nor for the Will ; for it is not certain what Estate she might devise by the Custom , and also it is against reason that a Feme covert surrender to the use of her Husband : And he cited the Case in Fitz. 13 E. 3. Dum fuit intra Aetatem 3. where Custom is pleaded in the City of Gloucest . That every person might alien his Land when he knew how to tell 12 d. and to measure an Ell of Cloath , and that Custom was disallowed for the incertainty , for he ought to have shewed the certainty of the time , scil. at what age , and the certain number of years . Vide also 19 E. 2. Fitz. Gard. 127. That an Infant should be out of Ward when he could do as aforesaid . And as to the Surrender , it is against reason that a Feme covert should give to her Husband , for the Wife hath not any will but the will of her Husband ; and the Statute of Wills utterly excepts Feme coverts as an unreasonable thing to suffer them to make Devises ; and although the Statute doth not extend to Customary Lands , yet the like reason , the like Law. But by Anderson , the Equity of that Act extends to Copyholds , as also doth the Statute of Limitations : And it was said by some of the Serjeants that because the Husband was admitted , Trespass did not lye against him for his Entry was continued with a lawful Ceremony . In this case , it was moved by Anderson , If a Copyholder maketh a Lease for years by word , if the Lessee might maintain Ejectione firmae , and he conceived not , for that ought to be a Title in facto , and not by conclusion ; for neither the Iudge nor the Iury are estopped : And he said , that if the Tenant at will makes a Lease for years , that it is not a good Lease between the parties to it , but that the Lessee might well say that he had nothing , &c. Mead contrary : And Anderson said , The Book of 12 E. 4. 12. is not Law , scil. If Tenant at will makes a Lease for years it is not Disseisin , but the said Book is contrary : Also Anderson said , That in the principal Case the Presciption is not well laid , Quod quaelibet foemina cooperta viro poterit , &c. whereas there should be also words , scil. Et usae fuerunt , &c. And it was said , That if the Devise be good , then the Plaintiff and Defendant are Tenants in Common , and the Action not maintainable .

Pasc. 30 Eliz. In the Kings Bench. CCLX . Jeroms Case .

JErome made an Affray , of which complaint being made to the Mayor , the said Mayor sent the Defendant , being Constable , to bring the said Jerome to him , by virtue of which they went to the house of the Plaintiff , and signified to him the command of the Mayor , and would have brought the Plaintiff to him , and the Plaintiffs Wife assaulted them , and they gently lay their hands upon the Wife , which is the said Assault , Battery and Wounding , &c. upon which it was demurred . Cooke for the Plaintiff ; Customs . The Custom is not good nor reasonable , vide Magna Charta 29. Nullus liber homo capiatur , nec imprisonetur , &c. nisi , &c. per legale judicium parium suorum vel per legem terrae ; Ergo , shall not be taken and imprisoned upon a bare suggestion . Vide 24 E. 3. Br. Commissions 3. That where a Commission issued to apprehend all who were notoriously suspected for Felons and Trespassors , although they were not Indicted , it was holden against Law , and therefore was revoked . Vide the Statute of 1 E. 3. cap. 9. 25 E. 3. 4. 28 E. 3. 3. Justice of Peace not by Prescription . 37 E. 3. 18. & 42 E. 3. 33. 2. To be a Iustice of Peace doth not lye in Prescription ; for no Iustice of Peace was before the Statute of 1 E. 3. and the beginning of them being known , Prescription cannot be . 3. Admit that the Mayor was a Iustice of the Peace , yet he cannot determine any thing out of Sessions . 4. The Prescription is , That the Mayor may send for him , and doth not say within the City ; and it shall be an unreasonable Prescription to say that the Mayor may send for him ; for in such case in any place within England may he send . 5. It is not shewed that they had a Corporation which might prescribe . 6. The Wounding is not answered , for Molliter injicere manus cannot be taken for a Wounding , nor for an answer to the Battery . Fleetwood Serjeant and Recorder of London , If the Statute of Magna Charta should be observed no Felon is duly handled at Newgate ; and here we have not pleaded by way of Prescription , but of Vsage . Consuetudo and Vsage are all one : And afterwards Iudgment was given for the Plaintiff ; for the Plea in bar was holden to be naught , because the Wounding was not answered , and the Custom is too general ; and also for the fourth Exception .

Mich. 32 Eliz. In the Kings Bench. CCLXI . Goram and Fowks Case .

Prohibition . THe Case was , The Defendant libelled in the Spiritual Court , that whereas he was Administrator to one A. and was bound in the Spiritual Court to bring in a true Inventory of all the Goods of the Intestate , that the Plaintiff detained Jura & Credita , by reason of which he could not put in a true Inventory ; and upon that the Plaintiff prayed a Prohibition , surmising that he himself claimed Property in the said Goods ; and the Ecclesiastical Court would not allow of it ; and the Trial of the said Goods did belong to the Common Law : And a Prohibition was granted .

Trin. 33 Eliz. In the Kings Bench. CCLXII . Mountjoyes and Andrews Case .

IN Scire Facias upon a Iudgment in Debt ; The Defendant pleaded , that heretofore a Fieri Facias at the Suit of the now Plaintiff issued directed to the Sheriff of Leice●●er , by force of which the said Sheriff took divers Sheep of the Defendant , Execution . & adhuc doth detain them : Retorn of Writ . It was holden by the Court a good Plea ▪ although he doth not say that the Writ was returned ; for the Execution is lawful notwithstanding that , and the Plaintiff hath remedy against the Sheriff .

CCLXIII . Vide this Case reported by Cook 1 Part , by the name of Capells Case .

THe Case between Hunt and Gately in the Exchequer Chamber , was now argued by Fenne , That the Rent granted by him in the Remainder upon an Estate tail is good , and shall bind the Land after the Estate tail determined , notwithstanding the common Recovery suffered by the Tenant in tail in possession . Before the Statute of Westm. 2. of Donis Condic , &c. no Remainder could be limited upon an Estate tail , for that which remained in the Donor was but a possibility , and therefore then a Formedon in Remainder did not lye : But the said Statute which provided a Formedon in the Descender , provided also by Equity a Formedon in the Remainder ; for a Formedon in the Reverter , as appeareth by the said Statute , was in use in Cancellaria . And now here in our case is a Remainder lawfully vested in the Grantor , which he may dispose of as he sees good ; and therefore when he grants a Rent-charge out of it , the same is a thing vested in the Grantee , and by no subsequent act can be divested , and although the Estate which was charged be now charged by the Recovery , yet it is the same Land which was charged , and therefore the charge shall continue ; as if a gift in tail be rendring Rent , and the Donee levieth a Fine , yet the Rent remaineth , and the Donor shall distrain . 48 E. 3. 3 , 9. So here , If after the grant of this Rent , Tenant in tail in possession levies a Fine , by which the Remainder which was charged is discontinued , and afterwards the Conusor dyes without Issue , the Grantee shall distrain upon such possession which passed by the Fine . As if A. lease to B. for life , and afterwards grants a Rent out of the same Land to C. B. aliens in Fee and dyes , although that A. cannot re-enter , but suffers the said torcious Estate , gained de novo by wrong , to continue ; yet B upon such possession shall distrain for the Rent , for it is the same Land which was charged ; and by Law a thing in abeyance may be charged : As if a Parson grant a Rent-charge to begin after his death , and the Patron and Ordinary confirm it , it shall bind , although the Grant doth not take effect in the life of the Grantor , but when the Freehold is in abeyance : So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parsonage , the same is good , and shall bind the Successor , and yet at the time of the Grant the Freehold of the thing granted is in abeyance . Vide 5 E. 6. Dyer 69. That a Rent which is not in esse shall be bound by a Iudgment . 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton , Jus , concerning a real thing , is threefold : 1. Jus terrae , scil . the Ownership of the Land . 2. Jus in terra , as a Rent , Common , &c. 3. Jus ad terram , scil . Right permanent . And by this Common Recovery in our case Jus terrae shall be bound , but not Jus in terra : And he said , That if Land be given to A. in tail , the Remainder to the Kings Villain in Fee , and before any claim by the King , A. suffers a common Recovery and dyes without Issue , this Recovery shall not bind the King. And as to the Case of 26 H. 8. 2. which hath been Objected against the falsifying of the Recovery , where a Parson made a Lease for years , and afterwards in a Quare Impedit brought against him and the Patron , they pleaded faintly , to the intent to make the Lessee lose his Term , now such a Lessee cannot falsifie ; in such case the Parson by another way might have defeated the Lease as by Resignation ; but in our case the Grantor of this Rent by no way might defeat his Grant : And he said , a common recovery did not bind Dower , therefore nor this rent . And if Tenant in tail in possession grants such a rent , and after suffers a common recovery , the rent shall stand , why not also in the case of a remainder ; for upon them both , as well the remainder , as the possession , the recovery operatur : And recoveries shall always bind the possession , and no farther , and shall not disprove the right , but the possession . And the recovery by it self doth not bind the possession , but in respect of the Voucher , without which no recovery shall bar , and that in respect of the recompence which the Law presumes , &c. which recompence cannot extend to this Rent-charge , and then there is no reason that he to whom it was granted should be prejudiced by this recovery ; and always in case of recompence the Law is very precise . As if I grant unto you an Annuity of 30 l. per Annum until you be presented to a competent Benefice , a litigious Benefice is not a recompence intended , nor shall determine the Annuity , nor a Benefice of 15 l. If two make an exchange for their Lives , and one of them dyeth , the exchange is not determined but the Heir of him who dyeth shall enter and retain the Land as long as the other shall live . Ad quod Manwod Chief Baron subsidebat : And there is a great difference between a Lease for years and a Rent-charge ; for at the Common Law upon such Recovery the Lessee for years was bound , contrary of a Rent-charge ; for it was unreasonable that a thing not demanded by the recovery should be bound by it , especially because that the Land rendred in value shall not be charged with the rent . Walmesley Serjeant contrary : A remainder upon an Estate tail is debile fundamentum , and cannot uphold with assurance a Rent-charge against a common recovery ; and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Estate-tail expectant may be charged , for an Estate-tail is in Law presumed to be perpetual , and therefore , what Lands are entailed by Fee , the words of the Fine are , Sibi & haeredibus de Corpore suo exeuntibus imperpetuum . And it is the common learning in our Books that every Estate of Inheritance , be it Fee-simple or Fee-tail , shall be intended to be continued till the contrary be shewed . And the Authority which the Owner of a Remainder hath upon it is but conditional ; scil If the Tenant in tail in possession doth not countermand it by a recovery , &c. And also the possession upon which the Avowry is made , is not the same possession which was charged , but is a Foreign possession gained by the recovery , and therefore , before the proper possession be recontinued , there can be no Distress nor Avowry , for the Land is not reduced in the privity of Estate which was charged ; and if he in Reversion upon such Estate tail would grant his reversion rendring rent , and afterwards the Tenant in tail in possession suffers a common recovery , and dyeth without Issue ; Now the reversion being destroyed , the rent is gone . And he put this Case : Tenant in tail grants a Rent-charge to begin after his death without Issue , and afterwards suffers a common recovery , and dyes without Issue , it is a good rent , and shall bind the Recoveror &c. At another day in the Exchequer Chamber , the Case was argued again by Snagg Serjeant for the Defendant ; and he was very long in proving that a remainder might be charged , as in this case : But the Court discharged him of that , and directed him to argue to this Point , If this recovery did discharge the rent , &c. wherefore he argued , That these common recoveries are false and feigned things , false in the Title , and covenous in the Proceedings , and all in prejudice of a third person . And Vide 14 H. 8.3 . such common recoveries are holden fraudulent , and therefore by fraud and covin being so odious in our Law , we ought not to give and allow unto them so much force as is due to unfeigned recoveries ; for these common recoveries do not go in disaffirmance of the former possession , nor in any eviction of it , but for the most part in affirmance ; and the Estate gained by this recovery is under the Estate of him against whom the recovery was had , and he is in by him ; for common Recoveries are no other but common Assurances : And in our Case the imagined Recompence cannot come to him who hath by the recovery lost his rent , and therefore it is not reason that the recovery should bind as to this rent . Vide 12 E. 4. 19 , 20. Tenant in tail discontinueth , and takes back an Estate to him in Fee , and afterwards a common recovery is had against him , it shall not bind the tail , for the presumed recompence shall go to the Estate which he hath lost , scil. the Estate in Fee , and not to the Estate tail , whereof at the time of the recovery he was seized : So in our Case , the Land which by Fiction of Law is to be yielded in value upon this Voucher , shall not extend to the benefit or recompence of the Grantee of the Rent-charge , but only to H. who hath lost his remainder , and his new remainder , which comes in lieu of the former , shall not be charged with this rent : And therefore the remainder , which by this recovery is drawn out of H. transit cum suo onere , & cum acciderit shall answer , and shall yield the rent according to the purport of the Grant. As 33 H. 6. 4 & 5. two Ioyntenants are , The one grants a Rent-charge , and afterwards releases to his Companion , he shall hold the Land charged , notwithstanding that he be now fully in by the Feoffor . And if there be Lord and Tenant , and the Tenant grants a Rent-charge in Fee , and dyeth without Heir , so as the Land goes to the Lord in point of Escheat , yet the Lord shall hold the Land charged . And as to the Statute of Fraudulent Conveyances , 27 Eliz. cap. 4. the same cannot extend to this Grant ; for here , this Grant is upon consideration of Nature made to his own Son for his advancement . Popham Attorney General to the contrary : And that neither the Grantee of this Rent , nor he who makes Conusans in his right shall falsifie this recovery . And he put a difference where the party who leaseth or chargeth a remainder , is bound by the recovery voluntarily , and where involuntarily ; for where the recovery is suffered voluntarily , there the Grantee or Lessee shall not be bound by that recovery , but they shall falsifie : But where as our Case is , there the Party who chargeth or leaseth is bound involuntarily by such recovery , there all Interests are bound , and the charge is subject to the same mischief as the remainder it self , out of which it is issuing , Vide 7 H. 7. 12. He in the remainder in Fee shall not satisfie a recovery had against the Tenant for life , but he is put to his Writ of Entry , ad terminum qui praeteriit , in which he shall falsifie , and not by Entry , much less he in the remainder upon an Estate tail shall not falsifie ; and falsifier lyes properly where the Party who grants or leaseth against his Grant or Lease , practiseth by such recovery to avoid or defeat his own Estate , and by consequence the Interest of his Grantee or Lessee : But in our Case there is not any such matter ; for the Grantor H. was not party or privy to this recovery , nor Tenant , nor Vouchee , and therefore no Covin , and then no Voucher ; and all the Cases in our Law of falsifying of recoveries are upon such matter . And he put the Case of 19 E. 2. Fitz. Title Assise 82. where the Conusee of a Statute Merchant , having sued Execution , one who had no right impleaded the Conusor , and by Covin recovered against him , and by Execution upon that recovery ousted the Conusee , it was holden he should have an Assise and falsifie ; for here he who party to the recovery : Donee in tail , the remainder over in Fee upon condition suffers a common recovery , the Condition is gone . And as to the Statute of 21 H. 8. cap. 15. Falsifying is not given in our Case by the said Statute , the words of which are , Where divers Men have leased their Land to Farm , and afterwards , after such Leases made , the Lessors , their Heirs and Assigns have suffered Recoveries : Within which words our Case is not ; for he against whom the recovery was had was not our Grantor , his Heir or Assign : So if there be Tenant in tail , the remainder over to another in Fee , he in the remainder makes a Lease for years , and afterwards Tenant in tail in possession suffers a common recovery , the Lessee shall not falsifie ; for that Lease was not made by him against whom the recovery was had . And it is clear , that by the Common Law , the Grantee of a Rent-charge cannot falsifie against the Grantor , his Heirs or Assigns : But it was a doubt as it appeareth . 7 H. 7.11 . If upon a faint pleader , the Lessee for years might be received , for the Statute of Gloucester extends but to default or re-disseisin ; but now by the Statute of 21 H. 8. cap. 11. in three Cases , Default , Reddition , and Faint pleading , such Resceipt lyes , which proves that in case of rent , as the Statute of 11 H. 8. hath ordained in case of a Lease for years , where the Lessor , his Heirs or Assigns , have suffered the recovery and not otherwise . And afterwards he argued very much upon the reputation and dignity of common Recoveries , that they are the strongest and most effectual Assurances in the Law , and therefore they ought to be countenanced rather by the Iudges , than in any part diminished or disabled , and we ought to consider of them Non ex rigore juris , rigida disquisitione , but according to the common use and practice , what is the ground and foundation of these Recoveries : And so Iudges have used heretofore to examine Matters , which peradventure , according to the strict Rules of the Common Law , drew them away . But they perceiving that a dangerous Consequence thereby would follow to an infinite number of the Kings Subjects the Law having been otherwise practised before have framed their Iudgments , not according to the exact Rules of Law , but to avoid the Inconvenience aforesaid according to the common and received practice , &c. Nam communis Error facit jus ; and to that purpose he cited a Case very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a Iudgment given in Wales , and the Error was in this , That the Writ was returnable co●am Justiciariis Domini Regis Comitatus , &c. where it should have been coram Justiciariis Magnae Sessionis Dominae Reginae , &c and such are the words of the Statute of 34 H. 8. cap 26. the which Sessions shall be called the Kings great Sessions in Wales ; and notwithstanding that the Iustices in strict consideration of the Law thought the same to be Error ( for the said Statute had given to the said Court such name ; yet because it was well known to the Iustices , That that was the common course in the said Court ever after the erection thereof ; And also , if the said Iudgment should be reversed , for that cause many Iudgments should be also reversed , which should be a great disquietness and vexation to the whole Country there , they in their discretion thought it convenient to qualifie the Law in that point , and so to avoid the said Inconvenience , affirmed the said Iudgment : So in the case at Bar , If this Rent-charge should stand against the said recovery , no inconvenience should be so firm , but it should be impeached , no Title so clear , but should be incumbred , & therefore for the common repulse of many the strict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience ; it hath been holden for Law when Tenant in tail maketh a feoffment in fee , the Feoffee is impleaded , & voucheth the Tenant in tail , now forasmuch as he cometh in as Vouchee , it is now said that he cometh in of all his estates , I do not see any reason for that , but common allowance , practice , and experience , &c. It was adjourned , &c.

Mich. 27 Eliz. In the Kings Bench. CCLXIV . Baxter and Bartlets Case .

IN Assise of Freshforce by Baxter against Bartlet upon Null tort , Null Disseisin pleaded , it was found for the Plaintiff who had Iudgment ; upon which the Tenant brought Error , for that the Assize have generally found the Disseisin , but have not enquired of the force : And after many motions the Iudgment was affirmed .

CCLXV. Sir Henry Gilfords Case .

IT was found upon a Special Verdict , That Henry Gilford Citizen and Freeman of London , 7 Feb. 6 E. 2. seized of a Capital Messuage , Devised the same by these words : Lego , & volo , Quod omnes Domus & reddit' quae habeo in Villa de London , ordinentur & assignentur per Executores meos ad sustentationem trium Capellanorum qui pro vita celebrabunt in Ecclesia Sancti Pauli , London : Et ad hoc faciend' Do eis plenam potestatem ; and made his Executors William Staunton and others , and dyed , the Will was Proved and Inrolled according to the Custom . Afterwards the Executors by their Deed bearing date 7 E. 2 granted and assigned the said Capital Messuage , and his other Tenements in London to the Dean and Chapter of Pauls in London , and their Successors , Habend' & tenend' in forma sequenti . Haec est finalis Concordia , &c. That the Dean and Chapter shall have the said Lands for ever , to find yearly a competent Sustenance of 10 Marks to a Priest to celebrate Mass for the said Henry Gilford , and all Souls , and that the said Priest at all hours of Divine obsequies should give his attendance in the said Church and faithfully do his Office to say Mass and Prayers according to the Degrees and Customs of the said Church , and that the Dean and Chapter should find Bread and Wine , and Massing-cloaths , and Torch-light , and granted the residue of the profits of the Lands to celebrate an yearly Obit , and for the perpetual security of the said Chauntry , the said Executors granted to the Mayor and Commonalty of London 20 s yearly rent for ever : Ita quod , the Mayor and Chamberlain for the time being presented a meet and convenient Chaplain to the said Chauntry , to the said Dean and Chapter , within 15 days after the Avoidance , the which Chaplain the Dean and Chap●er are bound to admit . And the form of the said Conveyance was such ; We the Executors H. G. do grant and assign to the Dean and Chapter of Pauls all the Lands , Tenements , and Rents aforesaid , to have and to hold to them and their Successors for the sustentation of a Chaplain perpetual , and his Clark for the said H. G. and all Souls , receiving from the said Dean and Chapter 10 Marks for the celebrating of the said Obit of the said H. G. And that the Grant and Assignment of the said 20 s. to the Commonalty in the relief of the said Chauntry , is such , scil. To have and receive of one Shop in Cheap maintenance of the said Chauntry aforesaid : And that the said Dean and Chapter oblige themselves and their Successors , and the Church , to pay the same to the said Priest and Clark and that it shall be lawful for the Mayor and Commonalty aforesaid to distrain for the said Rents : By virtue of which Will and Indenture the Dean and Chapter enter , and were thereof seized in their demesne , &c. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premises had yearly paid 10 Marks for the stipend of the said Priest . And further , the 27 July 16 H. 8. the Dean and Chapter demised the same to F. Cole for 40 years ; and that afterwards 15 Maij 36 H. 8. the said Dean and Chapter leased the same to Nicholas Wilford for 50 years rendring 9 l. Rent with Clause of Distress if the Rent was behind by half a year , being demanded the Lease should be void , which N. W. 1 E. 6. devised the same to his Wife who devised the same to Tho. Wilford the Defendant : And further found , That as it appeared by an Exemplification out of the Exchequer , That it was a Chauntry of H. G. and that Tho. was then a Chauntry Priest there , and that the said Chauntry , with all the Profits and Obits were 6 l. 13 s. 4 d. the tenth of which is a Mark , which was payable to the King 26 H. 8 And that by another Exemplification in 2 E. 6. it appeared that the Dean and Chapter of Pauls certified to the Commissioners of the said King , Cantaria H. G. A. & B. Executores Testamenti H. Gilford by force of the said Will 7 E 2. granted and assigned to the Dean and Chapter aforesaid , and their Successors , the said Lands and Tenements , to the intent that they should maintain for ever a Chaplain to pray for the Soul of the said H. G. and all Souls : And the Incumbent of the said Chauntry is one G. and that the said Executors granted to the Mayor and Commonalty of London the Rent of 20 s. out of a Shop in Cheap , with the Patronage of the said Chauntry , to the intent that they should maintain the Chauntry accordingly ; and recited all the said Lands and Rents assigned , and that the Rent of them was 14 l. 1 s. ( the Salary of the Priest , 6 l. 13 s. 4 d. for Bread and Wine 3 s. 4 d. the Chamberlain of London 20 s. being deducted ) and so there remaineth 4 l. 3 s 4 d. And that the said Chaplain received above his Wages yearly by reason of the said Obit , other Profits , as Procession pence , and Feeding days 33 s. 4 d. And found further , the Act of 1 E. 6. and further said , That the Church of St. Paul at the time of the said act was a Cathedral Church , and the Fee of the Bishop of London , and that the profits and rents devised and ordained to the said Dean and Chapter were in the said Certificate of 2 E. 6. and that the said Lands , at the time of the making of the said Act , and for five years before , were not in the actual possession of the said King H. 8 nor E. 6. and that by force of the Statute of 1 E. 6. the said Lands came to the possession of the said King as Chauntry Land , and that the said King granted it to Tho. Butcher in Fee , who bargained and sold the same to Dobson , who thereof enfeoffed Thoragill , upon whom the said Nicholas Wilford entred , claiming his Lease : And further found , That 45 s. parcel of the said rent of 9 l. due at the Feast of St. John Baptist 11 Eliz. for the said Capital Messuage was arrear by half a year after the said Feast , and was lawfully demanded by the said Rich. Thoragill , and for not payment he re-entred , and let the same to Tho. Buttell , &c. Bell. The Executors by this Devise have not a bare authority , but an interest ; for if one seized of Lands in Fee deviseth . That his Executors grant a Rent-charge to one in Fee out of his said Lands , by that Devise the Executors have a Fee-simple in the Land , otherwise they could not make such a Grant : So here in the Case in question : and also by the same reason the Executors have a Fee-simple in the Land , for otherwise they could not grant a Rent in Fee , nor the Land to the Dean and Chapter in Fee , by which the Chaplain in perpetuity ought to be found : And although but one Chauntry was erected where three were intended , but the Land devised was not sufficient for all three , so that now by the erecting of one Chauntry only , the Executors performed the trust as near to the intent of the Devisor as it could be , and as the Land devised might extend unto ; it is not material , if here be a Condition , or a Confidence in the words of the Grant to the Dean and Chapter ad inveniendum , &c. for if it be a Condition , and broken , no advantage shall be taken of it , for it is out of the Statute ; and if it be a Confidence , then it is performed as near the intent of the Devisor as it might be , and the Condition being performed , although not exactly , yet so near as it may be , it is well enough performed : As a Feoffment upon Condition , that the Feoffee shall make a Gift in tail to Husband and Wife , and the Heirs of the Body of the Husband , the Husband dyeth , now the Gift cannot be modo & forma , and therefore if it be , it may be , scil. as near the intent of the parties as it may be , it is good ; and therefore if the Land be given to the wife for life without impeachment of waste , the remainder over , it is sufficient in case of a Trust and Confidence . 1. It was moved , If here be any Chauntry in the Case : And a Chauntry is nothing else but a Sustentation for a Priest that chaunts in a place certain for the Souls of the dead : And Chauntries are in two sorts ; the one incorporated , as by the King by his Letters Patents ; the other not incorporated , as our case is : And truly the greatest number of Chauntries were not corporal , but were Chauntries but in reputation , and not Revera ; but yet such Chauntries in reputation are within the Statute , which see by the words of it , accepted , taken or reputed , as Part or Member of any Chauntry . It hath been Objected , That nothing passeth to the King by that Statute , but that which is parcel or belonging to the Chauntry but this Land is not parcel nor belonging to any Chauntry , for all the Land is in the Dean and Chapter . As to that , we ought to have regard unto the intent of the Devisor , which was to make the Land a Chauntry : And so in the time of Hen. 8. it was retorned in the Exchequer for the First-fruits of the Chauntry of Hen. Gilford , and we ought not to respect the Conveyance it self , which was made by the Executors to the Dean and Chapter , but also the disposition of the Devisor , so as both ought to be put together , if they be not contrary one to the other ; and if they be , then the last shall be taken . And when the intent of the Devisor may stand with the act of the Executors , to construe , That the Land shall make the Chauntry according to the intent of the Devisor ; for the Executors have given all the Land to the Dean and Chapter to find a Priest , and things belonging to a Chauntry ; and the Executors have given the said Land to the said intent , and the assignment of the special portion out of it , is but a shewing how the profits of the Lands shall be bestowed : For I conceive , That the Land at the time of the disposition aforesaid , was not of any better value , than it was appointed to be imployed as aforesaid ; and if the Dean and Chapter by their industry have made and improved it to a greater value , they shall take advantage thereof till it be given to the King by the Statute , and it shall not be said properly a Rent , but rather a portion of the profits , &c. and therefore the Land shall be said the Chauntry , and not the Sum ; and here the intent of the Statute extends to the intent of the Founder : So that if the intent of the Founder was to give the Land to Superstitious Vses , the same is within the Statute : If Cestuy que use wills that his Feoffees have the profits of his Lands ut supra , to the Sustentation of a Chauntry Priest , and the Feoffees imploy but 20 l. per Annum , whereas the Land is of the value of 100 l. per Annum , by this Statute the King shall have all ; for the intent of the Founder was , That all should be imployed : And so here ; for upon the Matter , the Dean and Chapter are but as Feoffees ; and see that this Statute of Chauntries makes a great difference between Obits and Lights , and Chauntries ; for in the Case of Obits and Lights , the King shall not have but that which was imployed . Whetstones Case was , That Whetstone seized of the Manor of Cocke , made a Feoffment thereof to certain Feoffees to find two Obits in such a Chappel , and with the residue of the profits to maintain the Chappel ; and Iudgment was given for the Queen . Here the Condition knit to the Reversion upon a Lease made by the Dean and Chapter to Nicholas Wilford passeth to the King by the Act of Parliament : for a Condition is an Hereditament , and when the King grants over the reversion to Butcher , the Condition also passeth by 32 H. 8. Bromley Solicitor , The Statute extends to Chauntries in existence only , and not to Chauntries in reputation . Chauntry hath divers significations in Law ; 1. For the Service which the Chauntry Priest is to do , as cessavit de Cantaria . 2 Sometimes for the Advowson of the Chauntry , scil. Quod permittat praesentare ad Cantariam . 3. Sometimes for the Body of the Chauntry , scil . the Land of which it is endowed , and in that sense it is taken by the Statute . I will agree , if the same had been an ancient Chauntry time out of mind &c. and the Incumbents thereof had taken the profits , and made Leases of it , that then it should be a Chaunt●y within this Statute , for it might be corporated by prescription : But the Chauntry here in question is not a Chauntry by prescription , for the beginning of it is known , so it is a Chauntry in reputation only and not in facto . And he said , That in that case the rent limited to the sustentation of the Priest shall go to the King and not to the Land for the Land was not given for the sustentation of a Priest , but the rent only ; so as the Land was not immediately imployed for the finding of the Priest : And he resembled this case to the case lately in question upon the Statute of 31 H. 8. An Abbot was seized of a great Wood , which was never imployed in kind to the use of the House , being seven Miles distant from the House , but was never in Lease , but was yearly sold by parcels , and the Woodward rendred an Account of the same to the Auditor : And the Opinion was , That a Lease for years made of it within a year before the Dissolution , was not within the said Statute , for it was not immediately imployed for Hospitality . But see the same reported by the Lord Dyer to the contrary , 3 & 4 Eliz. 207. that such a Demise was void although that the Wood was not immediately imployed , &c. And see also the words of the Statute . scil. That the Land shall be in the actual Possession of the King in as ample manner as the Priest had it , and the Priest had nothing in the Land but only in the Rent : It was adjorned to be further argued , &c.

Temps Roign Eliz. CCLXVI. Harveys Case .

HArvey seized of a Manor , made a Feoffment thereof to divers persons to the use of himself for life , and after to the use of his Son and the Heirs Males of his Body , and if the said Son , or any of the Heirs males of his Body discontinue or alien ( otherwise than for 21 years , or three lives ) that then his Feoffees should be seized to the use of Nic. Harvey his Brother in Fee : the Feoffor dyed , the Son made a Lease for 21 years and afterwards discontinued against the Proviso , if that lease should bind Nic. Harvey who came in by the latter use , &c. Dyer , It is hard to avoid the lease , for at the time of the making of it , the lessor had a good interest and authority to make the lease , and the act which impeacheth the Estate of the lessor commenceth after the lease by the discontinuance , and therefore shall not avoid the lease . Manwood , The second use doth determine the first use , and all Estates derived out of it . Mounson contr' , For here this word ( Otherwise than for 21 years , &c ) so as such a lease is excepted : As if a man man makes a Feoffment in Fee to the use of J. S. and his Heirs , until J. D. shall pay to him 20 l. and then to the use of J. D. and his Heirs , here if J. S. makes a a lease for years , and afterwards the Monies are paid to J. D. now J. D. shall hold the Land discharged of the lease , for there is no word ( Otherwise ) &c. for these words ( Otherwise ) qualifie the second use . Dyer , The word ( Otherwise ) amounts to an Exception . Manwood doubted of it , and moved and demanded if the wife of the Cestuy que use should have Dower or not . Barham conceived that she should , &c.

CCLXVII . Mich. 31 Eliz. In the Common Pleas.

TEnant in Socage made a lease for four years , and dyed , his Heir within age of 8 years , the Mother being Guardian in Socage , leased by Indenture to the same lessee for 14 years ; It was holden , that in this Case the first lease is surrendred , but otherwise it is of a lease made by Guardian in Nurture .

CCLXVIII . Mich. 29 Eliz. In the Common Pleas.

IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff released to the Defendant , and the continuance was made until this Term , scil. Mich 29 Eliz. per Curiam advisare vult : And now the Plaintiff against his own Release prayed , and had Iudgment , A Release pleaded after Judgment and Verdict . without any knowledge to the Defendant , and Process of Execution issued ; and now Walter , a Clerk of the Court , on the behalf of the Defendant shewed the Release to the Court and also the whole special matter , and prayed the Release of the Court against this practice . Anderson presently granted a Supersedeas : But afterwards , before the Process issued forth , he and the other Iustices were of Opinion , That the Defendant could not plead the said Release , nor any further matter after Verdict , and demanded the question of Nelson chief Prothonatory who advertised the Court , That he could shew a President where an Arbitrement had been pleaded after a Verdict , and Issue joyned upon it , and that was 100 years since : Quod mirum videbatur Curiae hic : Audita Querela pleaded . And afterwards the Court said to Walter , Sue your Audita Querela , and upon that you shall have a Supersedeas .

Mich. 29 Eliz. In the Common Pleas. CCLXIX . Sir Richard Lewknors Case .

Post 225. SIr Richard Lewknor seized of Willingford Park , leased the same for years , and dyed the Lessee assigned over his term , excepting the Woods and Vnderwoods standing growing , and being in and upon the premises , the Assignee committed Waste , the term expired , the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners , being dead , as tenant by the Curtesie , brought an Action of Waste against the Assignee , and the opinion of the Court was , that the husband ought not to joyn in that Action , for he can recover nothing , for damages he cannot have , for the waste was not done to his disinheresin , and the Land he cannot have , because the term is expired . Snag Serjeant , I conceive that the exception in the Assignment is good ; for an Exception of Trees by the Lessor himself in his Lease is good , and by reason thereof the Lessee shall not have Fire-bote , Hey-bote , &c. which otherwise he should have , and the property of the Trees is in the Lessor , and also the Soil , 14 H 8. 1 & 2. 28 H. 8. Dyer 19 & vide 46 E. 3. 22 a Lease for years was made with such Exception , and the Lessor brought an Action for the Trees cut . Q●are clausum tregit , and that proves that the Soil also is excepted and then the Action of Waste lyes against the Lessee , who hath excepted to himself the Wood and the Soil , and not against his Assignee . Walmsley Serjeant to the contrary . And he said , where Land is demised the absolute property of the great Trees is in the Lessor , and the Lessee hath in such case , a qualified property : And he cited 2 H. 7. 14. the Lessor commands the Lessee to dig gravel in the Land demised , or licenseth him so to do , such commandment or licence is not good for the lessor hath nothing to do with the Gravel , nor hath any property in it , but such licence to cut Trees had been good ; and Vide 10 H. 7.2 & 3. Waste is assigned in the breaking de uno muro lapideo ; the Defendant pleaded the licence of the Plaintiff to break it , and upon that they were at Issue : And he said , If the lessor cutteth trees , upon which the lessee brings an Action of Trespass he shall not recover damages according to the value of the trees cut down ; but for the Trespass to the Soil , and for the loss of the Shadow , and the Acorns , &c. and if the lessee cutteth down trees , the lessor cannot take them , because he hath other remedy . Where a reversion is granted to A. and B. and to the Heirs of B. Waste is done . A. and B bring an Action of Waste , B. shall recover all the damages , and A. nothing ; which proves that all the Interest in the Land demised is in B and not in A. therefore here in the principal Case the Exception is void , for that which the Law allows to the former , is only House-bote , Hedge-bote , Plough-bote , Fire-bote : And he said that the lessee fells the trees and the vendee cuts them down , that waste lyeth against the lessee , which proves that in that case the Soil doth not pass with the trees , by the exception of the trees , the Soil is also excepted as a servant to the trees , viz. to nourish the trees ; and if he who excepts the trees cuts them down , or roots them up , the lessee shall have the Soil . And he said , that for the property that the lessor hath in the trees , if he cuts them down , the rent shall not be apportioned : And if the lessor granteth the trees to one , and his heirs , there shall be no Attornment , which had been requisite if the Soil had passed . At another day it was argued by Shuttleworth Serjeant , and exception taken , because it is too general , scil. Quod fecit vastum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipsae sunt praefato , Ford dimisit , &c. And the Plaintiffs counted the Reversion was entailed by Act of Parliament to the said Sir R. Lewknor ; and so the Writ ought to be special , scil. Cujus Haeredes de corpore ipsae sunt ; for although there be not any such form in the Register , yet that is to no purpose ; for in novo casu novum est remedium apponendum . And he compared it to the Case in F. N. B. 57. where Land is given to husband and wife , and the heirs of the body of the wife , the wife dyeth , the husband commits waste , the Writ shall be , Idem A. de domibus in B. quas tenet ad vitam suam ex dimissione quam inde fecit praefato A. & M. quondam uxori ejus , & haeredibus de corpore ipsius M. matris dicti R. cujus haeres ipse est exeuntibus . And Vide 26 H. 8. 6. Cestuy que use leaseth for years , the lessee commits waste , the Feoffees bring an Action of waste , the Writ containeth the special matter , although there was not any such Writ in the Register . Fenner and Walmsley contrary ; for there is not any such form in the Register , Cujus haeredes de corpore , &c. and we are not to devise a new form in this case , but it is sufficient to shew the special matter in the Count ; also the words in the Writ are true , for the Plaintiffs are Heirs to Sir R. Lewknor . and the Count is well , pursuant and agreeing to the Writ ; for they are Heirs , although they are but Heirs special of his Body . And the Court awarded the Writ good , and said that the case is not like the case in Fitz. N. B. 57. nor to 26 H 8. before cited ; for in the first case the Plaintiffs cannot shew of whose Demise the Tenant holdeth , unless that he also shew the special Conveyance , scil. That the Land was given to the Husband and Wife , and to the Heirs of the Body of the Wife , for always the Demise to the Tenant ought to be shewed certain which cannot be in both these cases if not by disclosing also the Title to the Inheritance , and the Estate in it . Another Exception was taken to the Count , That where the two Defendants were Tenants in Common of the said Lands demised , the Writ is tenuerunt , which is intended a Ioynt-tenure . But this Exception was not allowed : And Vide 44 E. 3. in Waste the Plaintiff counted upon divers Leases , and Fitz. N. B. 60. F. and the Writ shall suppose one Tenet , and not divers Tenets . Another Exception was taken to the Writ because the two Coparceners , and the Heir of the third joyned in the Writ , whereas the Husband of the third Sister being Tenant by the Curtesie , was alive . Vide 22 H. 6 21 , 22. But that Exception for the Tenant by the Curtesie joyns to no purpose ; for he is not to have Damages , because the Waste was not to his disinheresin , and the Land he shall not recover against the Defendant for the Term is not determined ; and such was the Opinion of the Court. As to the matter in ●aw , Shuttleworth said , That the Action of Waste ought to be brought against the Lessee himself , and not against the Assignee for when he grants over his Term , excepting the Trees , it is a good Exception ; for when the Land upon which the Trees grow is leased to another , the Trees pass by the Lease as well as the Land , and the property of them is in the Lessee during the Term ; by which when he grants his Land , he may well except them , as the first Lessor might have done ; and if the Lessee for years cutteth down the Trees , the Lessor cannot take them for that he hath other sufficient remedy , scil an Action of Waste . Fenner and Walmsley contrary : And they conceived that the Lessee had but a special Property in the Trees , scil. for Fire-bote , Plough bote , House-bote , &c. But if he demiseth the Land , or granteth his Interest in it , he cannot except the Trees , nor his special Property in them no more than he who hath Common appendant may grant the Land , excepting the Common : And in such case , the general Property in the Trees remains in the Lessor , as parcel of his Inheritance . And this appeareth by many cases : 27 H. 8. 13. Lessee for life and he in the remainder joyn in a lease for life , the Lessee commits Waste , the Tenant for life , and he in the remainder , joyn in an Action of Waste , the Tenant for life shall recover the place wasted , and he in the reversion all the damages . Vide 2 H. 7. & 10 H. 7. cited before , That the Lessor may licence the Lessee to cut the Trees , which proves that the Property is in him . And Vide 40 Ass. 22. the Lessor shall have the Windfalls . And as to that which hath been said , That by the Exception of the Trees , the Soil it self is also excepted that is true , as to the Trees for nourishment , and not otherwise ; for if the Lessor cutteth down the Trees , or roots them up he shall not after meddle with the Land where &c. but the Soil shall be entirely to the Lessee : The Lessor during the Term may grant the Trees , so cannot the Lessee ; therefore the greater and better Property in the Trees is in the Lessor and not in the Lessee , and the Trees proprie loquendo , are not parcel of the thing demised . If this Exception of the Trees or Woods should hold place , Inconvenience would follow ; for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waste in one corner of the Wood , he should not lose all the Wood , but that place only : But if in the said Wood there are divers Plats of Land in divers places of the Wood , if the Termor commits Waste in that Wood he shall lose all the said Plats , although he hath not done waste in them , for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waste 127. and Vide ibidem Waste 112. 8 E. 2. Waste done in parcel of an House , the whole House shall be recovered . Vide also 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waste 10. Now if that be Law , and the Exception be good , how shall the place wasted be recovered here , and against whom ? It seemed to the Lord Anderson , That the Exception was void , and that the Action was brought against the Assignee ; and he said it was a knavish and foolish Demise , and if it should be effectual in Law , some Mischiefs would follow which he would not remember . Windham was of the same Opinion , and that the Lessee could not assign his Estate with such Exception ; for he hath but a special Interest in the Trees , scil. for Fire-bote , Plough-bote , &c. which should go with the Land . Periam conceived , That as to such special Property , that none could have it but he who hath the Land , and therefore the Exception is void ; but as to the Fruit-trees , such an Exception might be good ; and although that the Trees are not expresly demised , yet quodam modo , and after a sort , they may be said demised , as annexed to the Land , and if waste be brought against him who made the Exception , scil. the Lessee , he cannot say they were not let to him ; and therefore he doubted of the Exception : And Rhodes doubted also of the Exception ; and Anderson said , that he was clear of opinion that the Lessor should have the Windfalls , and afterwards the Case was adjorned to be further argued , &c.

Temps Roign Eliz. CCLXX. Audleys Case .

Uses . THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset , and afterwards by Indenture reciting the said Feoffment and the date of it , and also that it was to the intent that his Feoffees should perform his Will , as followeth in effect , viz My Will is that my said Feoffees shall stand seized to the use that the said Hoddy shall receive of the said Lands ●00 l which he had lent to the said Lord Audley , and also to stand seized to pay all his Debts upon Bills signed with his hand ; and after ●he Debts paid , that the Feoffees shall make an Estate of the said Lands to him the said Lord Audley and Joan his wife , and to the heirs of their Bodies , &c. with divers Remainders over . The said Lord Audley had Issue by the said Joan ▪ and also having Issue by a former wife a daughter the Feoffees never made any Estate to the said Lord and his wife ; and by the opinion of divers Iustices and Sages of the Law upon this matter no use was changed for it is not a last Will , but an Intent ; and although that the Feoffees shall be seized to the use of the Feoffor and his Heirs , because no consideration was wherefore they should be seized to their own uses ; yet the same could not make a new use to the said Lord and his wife in tail , without conveying an Estate , &c. for the wife is a stranger to the Land , and the same cannot be a Will or Testament : for the Estate mentioned in the said writing ought to be made to the said Lord and his wife , who could not take by his own Will ; and this matter was depending in the Chancery . And the advise of the Iustices being there required , they delivered their Opinions , That by that writing no use was changed , nor any use vested in the said Lord and his wife , and a Decree was made accordingly , until proof was made that such an Estate was made , &c.

Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somersets Case .

IN Trespass by Walgrave against Somerset , the Case was , That tenant at will cut down Trees , and the Lessor brought Trespass vi & armis : And the Court was clear of opinion , that the Action was well maintainable modo & forma , and Iudgment was given accordingly . Vide Litt. 25. that Trespass lyeth , but he doth not speak of vi & armis . See for that 12 E. 4. 8. by Fairfax and Genny , 22 E. 4. 5.

CCLXXII . Mich. 30 Eliz. In the Common Pleas.

IN Debt upon an Obligation , the Defendant said that the Obligation was endorced with a Condition for the performance of Covenants contained in an Indenture , &c. The Plaintiff assigned the Breach in this , that the Defendant himself by the same Indenture , that the said House was discharged of all former Estates and Incumbrances , &c. And further shewed , that the Defendant had made a former Lease of the said House to one A. B. in the County of Warwick ; to which the Defendant said , that tempore dimissionis he was within age ; upon which they were at Issue , and it was tryed in the County of Warwick , where it ought to be tryed where the Writ was brought : But the whole Court held the contrary , Trial. that the tryal was well enough ; as if in an Assise the Tenant pleadeth a Release of the Plaintiff in a foreign County ; to which the Plaintiff pleads , that at the time of the Release he was within age , upon which they are at Issue ; the Issue shall be tryed in the County where the Release is pleaded to be made , and not where the Writ is brought .

CCLXXIII . Temps Roign Eliz.

ACtion upon the Case was brought for stopping a way : The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life , and that the said Duke , and all those whose Estate , &c. had used time out of mind , &c. to have a way over the Land of the Defendant to the Park of D. to carry and re-carry necessary wood for the said House , from the said Park to the said House : And further declared , That the Defendant Obstupavit viam : It was moved , that upon the matter no Action upon the Case did lye , but an Assise , because that the Freehold of the House is in the Plaintiff , and also the Freehold of the Land over which , &c. is in the Defendant : But if the Plaintiff had had but an Estate for years , then an Action upon the Case would lye and not an Assise : And it is not material if the Plaintiff have but an Estate for years in the Park , Q●od fuit concestum per totam Curiam . It was holden also that this word Obstupavit was good enough without any more , scil. without shewing any special matter of disturbance , Nusance , Obstupavit . as the erection of some Gate , Hedge , Ditch , &c. for Obstupavit implyeth a Nusance continued , and not a personal disturbance , as Forestaller , or saying upon the Land , &c. that he shall not go over , or use that way : But as to a local and real Nusance , the word Obstupavit amounts to Obstruxit : And although in the Declaration is set down the day and year of the stopping , yet it shall not be intended that it continued but the same day ; for the words of the Declaration are further , That he was disturbed in the way , and yet is ; and so the continuance of the disturbance is alledged ; and of that Opinion was the whole Court. Action upon the C●se . Prescription . Leonard Prothonotary , He hath declared of a Prescription habere viam tam pedestrem , quam equestrem pro omnibus & omni●odis cariagiis ; and by that Prescription he cannot have a Cart-way , for every Prescription is stricti juris . Dyer , That is well observed ; and I conceive that the Law is so ; and therefore it is good to prescribe habere viam pro omnibus cariagus , without speaking of Horse or Foot-way .

16 Eliz. In the Common Pleas. CCLXXIV . The Archbishop of Yorks Case .

Toll THe King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon : And afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through all the Realm ; and afterwards the Archbishop exchanged his Manor of Rippon with the King for another Manor : It was moved , If now the Citizens of York should be discharged of Toll within the Mannor of Rippon Dyer said that they are not discharged of Toll , for the Grant to the Archbishop was eigne to the Grant made to the Citizens , and by the exchange the King had new Right : And when the King grants over the Manor of Rippon , the Grantee shall have the Toll , notwithstanding the Grant made to the Citizens , for the Grant made to them was void as to discharge them of Toll at Rippon , and the Grant of the King to the Citizens shall not take effect after the exchange ; for the Grant was void ab initio . But if the Grant of the King to the Archbishop had been made for life , then the Grant of the King made to the Citizens should take effect after the Estate for life determined : And the better Opinion was , That Toll should be paid .

Hil. 16 Eliz. In the Common Pleas. CCLXXV . William Wallers Case .

WIlliam Waller seized in Fee 26 H. 8. made a Feoffment to the use of his last Will , and by that devised his Manor of Russels to Rich. Waller his Son in Tail , and dyed . Rich. Waller entred , and was seized by force of the Statute 27 H. 8. and afterwards 2 E. 6. by his Deed in consideration of a Marriage to be had between him and one Eliz. A. enfeoffed Worsley and others to the use of himself and the said Eliz. for their lives , and after the use of the said Rich. Waller , and his Heirs , and dyed ; Eliz. took to Wife Clavell , they both by Fine granted the said Mannor to Tho. Lamb : Habend' eidem Thomae & haeredibus suis tota vita ipsius Eliz. Tho. Lamb entred , and dyed seized , Tho. his Son and Heir entred , against whom Thomas Waller , Son and Heir of Rich. brought a Formedon , the said Eliz. being alive , the Tenant said , he is within age , and prayed that the paroll might demur ; but Non allocatur , for he was but as an Occupant during the life of Eliz.

CCLXXVI . Residuum of Sir Francis Englefields Case .

THe Case of Sir Francis Englefield was argued by Popham ; and he said , That this Condition was not such a private Condition , or so running in privity , but that it might be transferred by 33 H. 8. or 29 Eliz. to the Queen ; for although that the consideration which moved and induced Sir Francis to create the Condition be private and particular , yet that notwithstanding the Condition it self is general ; for the private cause of the Condition doth not make the Condition private , but as in other Cases , and he put the Cases before of Ransom : But if the Condition had been conceived in these Terms , scil. If my Nephew shall be given to intollerable Vices , then if I tender , &c. there it had been otherwise . Vide the Statute of 33 H. 8. cap. 20. by which it is enacted , That if any Subject is attainted of High Treason by the course of the Common Law , the King by such Attainder shall have such benefit and advantage as well of Vses , Rights , Entries , Conditions , &c. as of Possessions , Reversions , &c. as if it had been done and declared by Authority of Parliament , that is as much as to say , as if the Condition in its proper terms had been given to the King by Act of Parliament , &c. and vouched Dacres case 17 Eliz. cited by him before , where , upon a Grant of all his Goods and Chattels revokable upon tender of 5 s. it was resolved , That such a Condition was given to the King , and by special Grace of the Queen Sir Tho. Gorge had the benefit of it : And here , although the cause of the Proviso be private and special , yet the Condition is not tyed in the cause , and the Statute gives to the Queen all Conditions which are usual , and for the benefit of the Queen ; and at the time of the making of this Statute such Conditions were usual , & tunc temporis , the Condition was pen'd , not by way of re-entry , but that the use should be void ; and that such Conditions were usual at the time of the making of the Statute of 29 Eliz. appeareth by the Statute made two years before , scil. 27 Eliz. for the repressing of fraudulent Conveyances : By which it is provided by an express branch of it against such Conditions containing power of Revocation ; and Laws are for the most part made to give order for things which may happen : And I conceive , That this tender for the Queen is well enough for the time , notwithstanding all the terms are past , yet the two years are not incurred : I covenant within a year to suffer a common Recovery , all the terms are past without any Recovery suffered , yet no Action lyeth upon that covenant before the year be fully expired , although that the terms be past , it being impossible to suffer a Recovery within the time prefixed : A. covenants with B. in consideration of Marriage to suffer a Recovery before the Feast of St. Michael , and if A. before the said Feast doth not suffer such Recovery , that then he shall be seized to the use of C. Trinity Term passeth without any Recovery had , yet no use shall rise before the said Feast : And I conceive that there needs not here any Office ; but if the Condition be to be performed on the part of the Patentee , then the breaking of the Condition ought to be found by Office ; contrary where the condition is to be performed on the part of the King : For acts which Subjects do , are matters in pa●s , therefore an Office is requisite to make them of Record ; but where the Queen doth any thing , there needs not any Office to make it of Record : The Queen herself might tender the King , but by commission under the Great Seal she hath authorized another to do it , and she hath taken sufficient notice that there was such a condition : And when the Certificate is made and retorned , the same is sufficient to inform her that the condition is performed , for the Certificate being retorned , is of record as well as the Commission , as the retorn of the Writ : And he cited the Case before cited , Bartues Case , 2 Eliz. Dyer . The King leased the Manor of D. for years to A. upon condition , that if the King at any time during the term shall make a Lease to the said A. of the Manor of S. for life , then the Lease for years shall cease and be void ; the King makes the Lease for life , the lease for years is void without any Office , for the Lease for life is upon record : The case of Auditor , 3 Eliz. Dyer 197. where the Forfeiture of the Office appears of record : And Baron Plags Case 15 H. 8. ibidem , the determination of the Office of Remembrancer by acceptance of the Baron shall bind in the Exchequer , void without a Scire Facias or Office. Vide etiam Dyer ( 5 Ma. 159. ) he being Iustice of the Common Pleas , was made Iustice of the Kings Bench his first Office was gone and determined : Also he said , That the Condition ( being performed ut supra ) sua vi & virtute , without any Office shall make void the Conveyance to which it was annexed . And if Sir Francis , being attainted , had tendred the King , ipso facto as it worked to him , so ipso facto it should work to the Queen . When the Act of 29 Eliz. had made the Assurance void , the Land is in the Queen presently , by means of Sir Francis , to whom the Land returned , and from him in the same instant vested in the Queen . Cook to the contrary : The Condition is not given to the Queen : Words make the Plea ; therefore the words of the Condition are to be considered , in which it is to be seen if this Condition be annexed to the privity of Nature , or be general . The Form of the Condition is , Sir Francis being a man of great Living , and having a great Manor of his own Name , in consideration of the preservation of his Name and Blood , &c. covenanted to stand seized , &c. And further , pro eo quod , his said Nephew was of tender age , and his proof could not now appear , and it might be that in time to come he might be given to intolerable Vices ; therefore the said Sir Francis did not think it convenient to settle the said Inheritance in his said Nephew absolutely without a bridle to restrain him , therefore it was provided , That if the Vncle delivered a King of Gold to his Nephew , to the intent to make void , &c. And this is a special Condition , private and peculiar to the person of Sir Francis incident to him , and to no other , and incommunicable ; and therefore it is not given to the Queen : But such Conditions which the Heir ▪ Lord by Escheat , or Executors may have , the Queen shall have by the Statute 10 H. 7. 18. Lessee for years of a House covenants to repair it within six years , within which term he dyeth , no reparation being made , covenant lyeth against the Executors ; contrary if the covenant had been that he should repair during his life . It hath been said , That the things which are matters of privity are the considerations which caused Sir Francis to make this Proviso , but they are not any part of the condition or Proviso : Truly the consideration raises the use , and precedes the Proviso which is tyed to the consideration with an Ideo , and all is but one Sentence knit together with the Ideo . And although consideration of Blood be not parcel of the Proviso , yet that which follows is , scil. for that his Nephew , &c. And in this Conveyance Sir Francis praestitit utrumque munus Nutricis , ubera , & verbera . And Acts of Parliament do not give away things knit to Nature , by the general words All things . Vide the Lord Brays case , 2 Eliz. Dyer 90. The Father having the Wardship of his Son and Heir apparent , if he Outlawed shall not forfeit the same , for it is inseparable to him , notwithstanding that the Land be holden of the Queen , and so Nature cannot be transferred , therefore neither this Proviso . And so is the Tenure of Frankalmoigne 35 H. 6. 58. and it should be a great rigour to take the bridle out of the hands of the Natural Vncle , into the hands of Iustice , which is Manus regia : And he cited the Case of the Lord Norris , where it was rul'd , That where the Act of Attainder of Norris gave to the King all Rights , Titles , &c. yet a Writ of Error was not given thereby . ( Manwood , Actions are not expresly given by the said Act of Attainder . ) As to the second point , I conceive that the Coveyance is become void when the terms within the two years are passed , and shall not expect until the two years be expired , for the Inrollment ought to be within the term ; so that if all the terms of the two years be past it is now impossible for to inroll the Deed within the time limited by the Statute , and then , by 29 H. 8 the Conveyance is void , and then is the Queen seized in Fee at the time of the making of the Lease by the Attainder of Sir Francis : As to the Certificate , without Office it is not sufficient to entitle the Queen to the Land ; and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee , and on the part of the King : I confess that a Certificate to inform the Queen , or her Councel , of the quantity , quality , value , &c. of the Land , is good without Office , but not to entitle the Queen de novo to the Inheritance of another ; I grant that the Commission is of Record , but the tender of the King is matter in pais , and not of Record . Three things ought to be observed in every Certificate , to make it a good and lawful Certificate according to the course of the common Law , unless it be in cases of necessity , as in case of Ouster le mere , &c. 1. It ought not to be in the absence of the party . 2. It ought to be pendente placito convocatis in ea parte convocandis . 3. It ought to be directed to a known Officer ; but a thing certified by a private person , being no Officer , cannot be good . Also a Certificate according to the course of the common Law , being good , is not traversable . At another day , the Case was argued by Egerton Solicitor for the Queen : The Condition is given to the Queen by 33 H. 8. and also by 29 Eliz. and this Condition in it self is a general and ordinary Condition , and rests not in privity , and such an Act as may be made by any stranger as well as by Sir Francis himself , scil. the tender of the King. The reasons which moved Sir Francis to knit this Condition to the Conveyance were natural , but the Proviso and the performance of it not tryed to Nature , and therefore all the cases of privity are here out of Seisin . As to the Lord Brays Case , the same was not any Wardship , but only an Order for the government or his Son and Heir ; for the Wardship of the Father in the Son is not a Chattel in him . As to the Case of the Lord Norris , the Writ of Error could not accrue to the Queen , for by the Act of Attainder no Actions were given to the King : And here is not any such privity as hath been pretended , for by the words of the Proviso the Ring might be tendred to his Executors or Administrators , therefore the Condition might be tendred when he is dead , therefore without privity . Title for alienation in Mortmain of Lands purchased by a Villain of the King , or for a Condition broken , are not in the King before Office : But here the Condition is to be performed on the part of the Queen , which her Royal Majesty cannot perform , and therefore Commissioners are appointed to do it , which they have done , and upon the Commission retorned , have informed the Queen of all the performance of it , and all is now upon Record . And there is a great difference between Certificates , as in our case , and Certificates which have been cited on the other side , which are used to make Tryals upon Issues joyned betwixt party and party , and in such Certificates I confess the Law , as Cook hath argued : The Sheriff is not known to be such an Officer , but by his Commission under the Great Seal , he upon a Writ of the King to him directed , Summons , Disseisins , Attaches , &c. these are matters in fait ; but when the Sheriff hath retorned his Service , then it is become matter of Record : So in our case , the retorn of the tender , &c. where the Queen is to be informed of the Lands of the Subject which she is to have , there ought to be an Office ; but here the Queen is to do an act , and that she hath done under the Great Seal by Commission , by the Retorn of which she is in the whole matter , therefore there needs not an Office to inform her of that which she her self hath done by another Authorized by her to do it : And he said that the Leases made by the Queen , being Tenant pur auter vie , were not void ab initio , but from the time of the two years , but now the Estate of the Queen for life is determined , therefore also the Leases derived out of it . Exception hath been taken to the Information , scil. Praedictus Franc' per Indenturam suam factam inter , &c. without saying sigillo suo sigillat' , that is good enough ; for facta esse non potuit , nisi etiam sit sigillat' , therefore facta includes sigillat' : And afterwards Trin. 33. Eliz. this Case was argued by the Barons . Clark puisne Baron said , That Iudgment ought to be given for the Queen . And first he said , I conceive that here upon this Indenture is no use created in Sir Francis , for he shall pay for a Licence of Alienation if the Lands be holden in chief ; and they themselves in pleading the uses , say Virtute cujus the said Sir Francis was seized in his Demesne as of Freehold for his life the remainder thereof , &c. Although this Condition be tyed to Nature , and rests in privity , as hath been objected and so inseparable , yet by Act of Parliament it may be transferred . Impropriations , Frankalmoign , Frankmarriage , Guardianship in Socage cannot be given away regularly , but by Act of Parliament they may ; which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbies and Priories dissolved , nam Parliamentum omnia potest : It may alter the nature of Lands , make Gavelkind discendable according to the course of the common Law , and so of Borough-English : Attaint , Error , Disceit , &c. are Actions which lye in privity , yet by Act of Parliament they may be transferred : And in the case of the Lord Norris , If the Act of Attainder had given to the Queen all Actions , she might have had a Writ of Error : And we see by experience , That the King and his Assigns have advantage of conditions annexed by Abbots to their Leases , and that by 31 H. 8. and our condition is not so proper or peculiar to Sir Francis , for by the words of it any other person might have tendred the King for Sir Francis , so as it is not tyed to his person . If the Provi●o had been . Because it may be my Son will marry without my consent Or it may be I shall have more Children Provided therefore , that if I tender , &c. that pretence of Marriage without assent , or plurality of children , is not any parcel of the condition . And he vouched the case between Clovell and Moulton ; A. sold Lands to B. and it was covenanted betwixt them , That A. upon request made unto him , or his Heirs , should make further assurance to B. of the said Land ; A. is attainted , now the covenant is suspended , for A. hath not any Heir , afterwards the Heir of A. is restored by Parliament , with a saving to others of all their rights , &c. B is not aided by that saving so as he can make request to the Heir of A. &c. And he said , That the tender of the King is well enough for time ; for although all the Terms were past , yet the two years were not expired : A. covenants with B. That if A. doth not levy a Fine to B. of the Manor of C. within two years , that then A. shall be seized of the Manor of D. to the use of the said B. Now although that all the Terms be past so that no Fine can be levied according to the Covenant , yet no use shall rise out of the said Mannor of D. before that the two years are fully expired : And here needs not any Office by which the tender ought to be found , the Commission authorizing the tender , and the retorn of the Certificate by the Commissioners is sufficient ; for the whole matter in fait is become matter of Record ; as the Execution of a Writ once by the Sheriff being retorned , and the party grieved by the Certificate shall have a traverse to it ; but where a Certificate is in lieu of a Tryal , as of Bastardy by the Bishop ; in Case of Seddition or Diminution certified in a Writ of Error , there no traverse lyeth to it ; but upon Certificate of not payment of Tythes , the party grieved may have a Traverse : In our Case here If the Subject continues possession after such Certificate made , he is an Intruder . The Queen when she made the Lease was Tenant for the life of another , and afterwards by the tender of the King according to the Provilo all the Conveyance , and the Estates limited by it , are dissolved , and the Fee-simple vested in Sir Francis , Quasi ab initio , and immediately also in the Queen by the Attainder , whose Estate is paramount the Conveyance made by Sir Francis , which is now , as if it had never been made , and so are all the Estates created by it , and then the Lease made ut supra is void . As to the Exception which hath been taken to the Information , ( Indentura sua ) without saying , Sigillo suo sigillat , it is well enough , for so much is said in effect ; for Non est Indentura sua , if it be not sealed , and all necessary circumstances are not to be pleaded , as the delivery of the Deed , or livery upon a Feoffment , for a Feoffment includes livery , and a Deed delivery . Gent , Baron to the same intent : Here the words of the Proviso are , Tender to Sir Francis , his Executors or Assigns , no words of Heirs , and on the part of Sir Francis , If he , or any for him : But in Dacres case , If the said John Dacres himself , and yet the Queen took advantage of such a Tender . Manwood chief Baron to the same intent . As to the Exception to the Information , scil. Per Indenturam suam , without saying Sigillo suo sigillat' ; for if the Indenture was not Sealed , then it was not any Deed , and then no Covenant , and then no Vse , and then no Condition , &c. But I conceive , That the Information is good enough , for Covenants by Indenture include Sealing and Delivery , and other things which are of the Essence of an Indenture , which need not to be pleaded , because in Law presumed : But for a clear Answer to it , Sealing and Delivery are matters in pais , therefore confessed by the Demurrer : And here the Defendants have pleaded Quod bene & verum est , That the said Sir Francis by the said Indenture , &c. covenanted , &c. and if any imperfection be in the pleading , it is now saved by the Demurrer . An Exception hath been taken to the bar , because the Defendants have pleaded three several Leases of several parcels of the Lands in question , and concluded , Virtute quarum quidem concessionum , they were possessed and entred , &c. which cannot be good , because several Interests and Estates , but ought to have pleaded severally , scil. One Lease of such Land in which the Intrusion is supposed , and so concluded Virtute cujus . they were possessed , & sic de caeteris . and so to each Interest one several Conclusion : A. hath an Annual Rent of 10 l. out of Bl. Acre , and another Rent of 20 l. out of , &c. and another Rent of 30 l out of the same Acre and takes a Distress in Bl. Acre aforesaid , and avows for all the Rents together , the Avowry is not good , for how can the Avowant have a Retorn ? when Non constat Curiae , how many of the Cattel he took for one Rent , and how many for another : As to the matter in Law , first , If this Condition doth extend to the Estate of Sir Francis , Nihil habet quaestionis ; for by the performance of the Condition Sir Francis is in statu quo prius , and so all the Estates limited by the said Indenture quite plucked up by the root . As to the Condition , I conceive that it is not knit in privity to Sir Francis , and doth not depend upon his liking or disliking : The Act it self , in which is the performance of the Condition , doth consist in the tender of the Ring , the words preceding purporting the doubt of the proof of his Son , and the bridle , &c. are his Motives by which he was induced to make the Condition , not to perform the Condition . nor any part or parcel of the Condition , or word of Condition . The words of the Condition are , If he himself , or any other by his appointment shall tender , &c. What privity is here ? who knows who shall be his Deputy to make the tender ? It may be any person in the World , therefore no privity in the person who is to tender ; and as to the person to whom the tender is to be made , there is no privity there , for it may be made to the Nephew , his Executors or Administrators . Also no precise place is set down in the Condition where the tender shall be , it may be in Ireland , Scotland , or in any other Country , therefore the Condition in all points general , and so free as an ordinary Condition : But if the Condition was to be performed by Sir Francis in his proper person , or by subscribing his name with his hand , or such like act , then it had been otherwise . The case of Littleton 76. A Feoffment in Fee is made upon Condition , that if the Feoffee pay to the Feoffor such a day 10 l. then the Feoffee shall have the Land to him and his Heirs for ever , and before the day the Feoffee makes a Feoffment over upon a Condition , the second Feoffee tenders the Mony , it is a good tender , and yet the words of the Condition do not extend so far , but only to the first Feoffee , who was privy to the Condition ; so where the payment is to be made on the part of the Feoffor , and he dyes before the day , tender by the Heir is good ; and here , this is a general Condition , and therefore may be performed generally without being restrained to any person for the performance of it : And here , we are in an Act of Parliament , Quod omnia potest , 32 H. 8. gave to Assigns of the Reversion which always before were fixed in privity . Monks dead persons in Law , by Act of Parliament made capable of Purchase and Inheritance ; Gavelkind and Borough-English made discendable at the common Law , which the King could not do : An Alien born is made Denizen by the King , by which he may Purchase , but yet not inherit : But an Act of Parliament may make him heritable ; Corruption of Blood the King cannot take off , but it ought to be purged by Act of Parliament . As to the Statute of 29 Eliz. it hath made the Conveyance void , as hath been objected ; for the Terms within the two years limited by the Statute are past , and then the Condition is gone , as against Intail upon Condition , if the Intail be spent the Condition is gone : But I conceive , that until the two years be fully expired , the Estates limited by the Conveyance continue , and the Condition also . The words of the said Statute are , ( Shall within two years after the last day of this Session , &c. openly shew and bring forth into the Queens Court of Exchequer , his Conveyance , and there in the Term time in open Court , shall offer and exhibit the same ; ) These words shew that the parties ought to shew the Conveyance within two years , but doth not speak of any term and in the other Clause it speaks of term , but not of two years ; so the time in which it ought to be shewed is two years , but the time of the Inrollment might be in the term after the two years well enough ; for there are two two times in the Statute , the one to shew the Conveyance , the other for the Inrollment of it , and two things are to be done , Shewing and Inrollment , and two times answerable to them , two years , and Term-time . And he took it for a general Rule , that time once expressed , shall not be afterwards by implication abridged . And if by your construction you make the time to end with the Term , you abridge the time by a Month at least , which was expressed before , two years . And for the reasonable construction of times , Vide 28 H. 8. Dyer 44 Boulds Case . If it fortune Joan Moll' to decease before the Feast of &c. without Issue Male of her Body then living , &c. this word ( then ) shall be referred to the Feast , and not to the time of the death of the party ; for ( as the reason of the Case is ) where the intent of the parties is to have continuance in the thing , the thing which they would have continue to the most extream time as may be : And if Lands be given to one and the Heirs Males of his Body begotten , and if he dye without Heirs of his Body , then it shall remain over ; by this Implication ( if he dyes without Heirs of his Body ) the Donee shall not have general Tail , but it shall be intended such Heirs to whom it was limited before . And in our Case here , there are some weeks between the ends of the Terms , and the end of the two years , and those weeks shall not be utterly void , for in these weeks after the end of the Terms those of the Chancery shall take Conusance of Deeds : And here in our Case , the party was only to shew the Deed , which might have been done at any time after the Terms , so as it be within the two years ; if one be bound with Condition , That if within two years he pay the Queens Silver upon a Fine to be levied , and then and there in Term time ingross the same , if he pay the Queens Silver within the two years , he hath saved his Bond , although that the Fine be not ingrossed until a Term after the two years : So if one be bound to acknowledge a Deed in the Chancery within two years , and there in the Term-time to Inroll the same , if he do acknowledge it within two years , it is sufficient , and he may inroll it afterwards : So in our Case , the Estates continuing , and the Condition also till the two years are fully expired , therefore the Condition is well performed ; for the Estate continues defeazable by the Condition , because within the two years , and to abridge time is a violent thing . And now Sir Francis is alive , so as the power of the tender of the power of the King continueth : And I conceive , That the Certificate is sufficent without any Office , and the party grieved may have traverse to it : And I hold clearly , that as this Case is Office cannot be found . Office properly is to be found of things in pa●s which happen before the Office , as the Nonage of an Heir , or of an Alien born or of a Villain ; here to entitle the King an Office is necessary to find things which have hapned before ; and without doubt this Certificate is traversable , as the Certificate of the Bishop of Recusancy ; and also the Certificate of the Commissioners of Sewers , and here those who are to certifie , are to certifie a thing done by themselves and therefore there needs not any Office , because they do it virtute Commissionis . If a Commission be awarded to take a Surrender of the Bishoprick of N. or of a Pentioner &c. there needs not any Office to find it ; and in the time of King Hen. 8 divers Abbots surrendred their Possessions to him , of which no Office was found . And now for conclusion ; The Queen comes in paramount her first Estate which she had pur auter voy , scil . by Attainder , and now she hath it by the Condition , and so paramount the Title under which the Defendants claim : And afterwards Iudgment was given for the Queen .

Trin. 31 Eliz. In the Common Pleas. CCLXXVII . The Scholars of All Souls and Tamworths Case .

This Case is Reported in the first Part of Leonard . IN a Writ of Right by the Colledge of All Souls in Oxon against Tamworth , the Writ was , Quod clamat tenere de nobis in liberam , puram & perpetuam Elemosinam . And Exception was taken to it , because it ought to be Liberam Elemosinam , without puram & perpetuam . Also it ought to be with a double ee , and not Elemosinam , sed non allocatur● for as to the first Exception it is but Surplusage , and as to the other it is the common course . Another Exception was taken to the Writ , because that the words are , Quod clamat este jus & haereditat' sua , without saying in jure Collegij . An●er●on , The Writ is good enough . If a Parson pleads that he is seized , he shall say in jure Ecclesiae , for he hath two Capacities , and without those words he shall be intended to be seized in his own right : But if an Abbot plead that he was seized he needs not such words , for that he hath not any other capacity : And so of Dean and Chapter , Mayor and Commonalty , and afterwards the Writ was awarded good , and that the Tenant should answer over , Vide Liber Entries , 236 , 237. It was also moved , If the Colledge should count of his Seisin within 30 years , because that the Corporation never dyes , and then if he count upon his own possession : And it was holden , That if the Warden of the Colledge that now is , was ever Seised , he ought to count upon a Seisin within 30 years : But upon the Seisin of his Predecessor he ought to count of a Seisin within 60 years , as another common person : For the change of the Head , if such Seisin , is as the dying seized , and descent of a common person .

Mich. 15 Eliz. In the Kings Bench. CCLXXVIII . Wood and Chivers Case .

IN Ejectione firmae between Wood and Chivers , the Case was , That the Bishop of Salisbury let the same Chivers the Manor of Lanington for 80 years for 40 l. rent , payable at four usual Feasts , upon Condition that if the rent be behind by the space of three Months after any of the Feasts in which , &c , then a re-entry : The Bishop dyed , after confirmation , J. S. was created Bishop , who granted to R. the Office of Receiver of all his Revenues , &c. exercend' per se vel Deputat . suum ; and afterwards the Bishop made a special Letter of Attorney to the said R. to demand the rent , and if it were behind to re-enter : R. at the last day of the three Months came to the Capital Messuage of the said Manor , an hour before the setting of the Sun ; for to demand the rent due at Midsummer then last past , but none was there on the part of Chivers the Lessee to pay the rent , for which R. left his Servant in the Hall of the said Messuage , commanding him to stay there , and if any came to pay the said rent , that he give to him Notice thereof , and afterwards he went out of the same House , and walked in a Lane which was within the Gate of the House , and did not return into the House until the Sun was set , and then he returned , and because the rent had not been paid , he digged a Clod of the Land in the Name of the Bishop , and so re-entred : And afterwards the Bishop let the said Manor to W. for three years by Deed , signed and Sealed ; and because C●●vers continued his possession notwithstanding the re-entry , he made also a Letter of Attorney to M. to enter into the said Manor in the Name of the Bishop , and to deliver the said Deed of the said Lease to the said W. upon the Land , as his Deed and these two Deeds the Bishop in his Chamber delivered to the said W. but not as his Deed : But he said unto him , Here is the Lease , and a Letter of Attorney to M. and he shall enter in my name , and deliver to you the Deed of his upon the Land , as my Deed upon the Land : Whereupon he took the two Deeds , and delivered them over to M. who by force thereof entred upon the Land , &c. An Exception was made , because it doth not appear here that the Bishop delivered the Letter of Attorney to M. himself , nor to the use of M. and then it may be taken , that the Deed of Letter of Attorney was delivered to M. to keep only , and not as his Deed. But that Exception was now allowed : For it was holden that the Livery in the Manor was good enough , and so the Letter of Attorney sufficient ; for in all Deeds of Feoffments in which Letters of Attorney are contained , the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney , for by such Letter of Attorney no Interest is to pass , but only an Authority . And note , It was resolved by all the Iustices , That in the computation of these three Months there ought to be allowed to every Month 28 days : And now we are to see if this Rent be well demanded , because the demand was made an hour before Sun-setting , and then the party went out , and walked in the Lane till the setting of the Sun , without any other demand : And it was moved that this walking in the Lane , which was not a common High-way , but a private way , and that the House of the said Farm was of the one side of the Lane , and the Farm-land on the other , and so the Land parcel of the Farm , and then his walking there is a continuance of the demand ; quod Catlin concessir , was the Lane a High-way , or not , for the Manor is on both side . And it was agreed by all the Iustices , That if the Lessor cometh to the Land before the last hour , viz. in the Morning , or in the Afternoon , and demands the Rent , and afterwards goes off the Land , and is not there at the last instant of the day , the same is not a sufficient demand , although that return be presently after the Sun is set : And by Gerrard Attorney General , If the Lessor cometh upon the Land at the last day before the last instant , as in the morning , &c. and demands the Rent , and continues there upon the Land till the Sun be set , without making any other demand , yet the demand for the Manor is good enough , for his presence there is the continuance of the demand , Quod fuit concessum per totam Curiam . And by Catlin , If the Lessor after his demand in the Morning departeth off the Land , and before the last instant returneth , and stays upon the Land till Sun-setting , there is the continuance of a demand , without any further demand , which Wray Chief Iustice concessit . And it was holden in this case , That where R. left his Servant in the House to stay there , and to signifie to him that if any person came to pay the Rent , that that was not any continuance of the demand , for R. himself was but a Servant , and he in that business could not make a Servant : And Catline said , That the Bishop himself might by word command his Servant to demand a Rent , and to make a Re-entry , Quod fuit concessum , but in our Case R. had not commanded his Servant to make any demand : And so here upon the whole matter is not any sufficient demand ; and so Wray Chief Iustice said .

CCLXXVIII . Trin. 29 Eliz. In the Common Pleas.

ACtion upon the Case was brought for these words , Thou wouldst have stoln my Cloak if J.S. had not come in the way ; and thou art a Thief , and I will prove it . After Verdict it was found for the Plaintiff . It was objected in Arrest of Iudgment , That these words were not actionable : For the first words , Thou wouldst have stoln my Cloak , &c. do not by Law give any cause of Action , and when the words subsequent , Thou art a Thief , are depending apon the said former words , and to be construed as spoken in respect of them , and upon that intent . But the Opinion of the whole Court was to the contrary . And that the said latter words should be taken and construed in abstracto by themselves , as in gross , and not as dependant upon the former words , and afterwards Iudgment was given that the Plaintiff should recover .

Mich. 26 Eliz. In the Common Pleas. CCLXXIX . Hungerford and Watts Case .

HUngerford brought an Action upon the Case againts Watts , Words . for that the Defendant had said , That the Plaintiff had caused the Defendant to be arrested with forged Writs . It was objected , That the words were not actionable ; for it might be that the Writs were forged by strangers without the privity of the Plaintiff , and that the Plaintiff not knowing them to be forged procured the Arrest . But the Opinion of the Court was , That the words were actionable ; for the word ( Caused ) extends as well to the Forgery as to the Arrest , and so amounts to the slander of Forgery .

CCLXXX . Mich. 19 Eliz. In the Common Pleas.

Costs . IN an Action upon an Escape the Plaintiff is Nonsuited : It was holden that the Defendant should not have Costs . Note , The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort personal to be supposed to be done immediately to the Plaintiff . Notwithstanding this Action is quodam modo , an Action upon the Statute 1. by Equity of the Statute of West . 2. cap. 11. which giveth it expresly against the Warden of the Fleet : Yet properly it is not an Action upon the Statute , for in the Declaration in such an Action no mention is made of the Statute which see in the Book of Entries , 169 , 171. and also here is not supposed any immediate personal offence or wrong to the Plaintiff : And an Action upon the Case it is not , for then the Writ ought to make mention of the Escape , and that it doth not here , and yet at the Common Law , before the Statute of Westm. 2. an Action upon the Case lay for an Escape , and so by Dyer , Manwood , and Mounson , Costs are not given in this Case . And by Dyer upon Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have Costs , for it is not a personal wrong ; for the Writ is , quod disseisivit , which is a real wrong .

Mich. 29 Eliz. In the Common Pleas. CCLXXXI . Hollingshed and Kings Case .

HOllingshed brought Debt against King , and declared , That King was bound to him in a Recognisance in 200 l. before the Mayor and Aldermen of London in interiori Camera of Guildhall in London : Vpon which Recognizance the said Hollingshed before brought a Scire Facias before the said Mayor , &c. in exteriori Camera , and there had Iudgment to recover ; upon which Recovery he had brought this Action ; and upon the Declaration the Defendant did demur in Law , because that the Plaintiff in the setting forth of the Recognizance had not alledged , That the Mayor of London had authority by Prescription or Grant to take Recognizances , and if he had not , then is the Recognizance taken coram non Judice , and so void ; and as to the Statute of Westm. 2. cap. 45. the same cannot extend to Recognizances taken in London , which see by the words , De his quae recordata sunt coram Cancellario Domini Regis & ejus Justiciariis , qui recordum habent & in rotulis eorum irrotulantur , &c. and also at the time of the making of that Statute , the City of London had not any Sheriffs but only Bayliffs : And the Statute ordains , That upon Recognizance Process shall go to the Sheriffs , &c. therefore not to them . But the whole Court was clear to the contrary ; for we well know , that they of London have a Court of Record , and every Court of Record hath authority incident to it to take Recognizances for all things which do concern the Iurisdiction of that Court , and which arise by reason of the matters there depending . Another matter was Objected , for that the Recognizance was taken in interiori Camera , but the Court was holden in exteriori Camera , therefore it was not well taken . But as to that Anderson Chief Iustice said , Admit that the Recognizance was not well taken , yet because that in a Scire Facias sued upon it , the Defendant shall not take any advantage , he shall be now bound by that admittance : As if one sues a Scire Facias , as upon a Recognizance , whereas in truth there is not any such Recognizance , and the party pleads admitting such Record , and thereupon Iudgment is given against him , the same is not void , but voidable . And Fleetwood Recorder of London , alledged many Cases to prove the Courts of the King ought to take notice , that those of London have a Court of Record ; for if a Quo Warranto issueth to the Iustices in Eyre , it doth not belong to them of London to claim their Liberties ; for all the Kings Courts have notice of them : And at the last , after many Motions , the better Opinion of the Court was , That the Plaintiff should recover : Periam aliquantum haesitavit : And it was said by Anderson , and in a manner agreed by them all , That if dependant this Demurrer here , the Iudgment in London upon the Scire Facias is reversed , yet the Court here shall proceed , and take no notice of the reversal .

CCLXXXII . Mich. 20 Eliz. In the Common Pleas.

A Man seized of a Barn in which the Tythes of certain Lands have used to be inned , let the same by these words , Demises .. Demise and to Farm-let the Barn , with all Tythes belonging to the same ; It was holden , That by that Demise the Tythes did not pass but Tythes which had usually been demised with the Barn , passed by such words , as by the Demise of an House , Cum omnibus terris eidem pertinent' , all the Lands pass which have used to be demised with the said House ; for the demising usually of the Tythes with the Barn makes the Tythes belonging to the Barn , but not the Inning .

Mich. 30 Eliz. In the Common Pleas. CCLXXXII . Haltons Case .

Recognisance . Inrollment . A Recognizance was acknowledged before J. S. who was one of the Masters of the Chancery , and before the same was Inrolled , the Conusee dyed ; the point was , whether at the request of the Executors of the Conusee it might now be Inrolled : It was the Opinion of all the Iustices , That upon the request aforesaid it might be Inrolled , like as it was of a Conusance of a Fine taken before a Iudge , which may be removed out of his hands by a Certiorari , although it be not a Record before that it be certified , in the speaking of that Case . It was made a question , whether the Court of Chancery might help a man who purchased Lands for valuable Consideration , where there wanted the words ( Heirs ) in the Deed of Purchase , or not ; but the point was not resolved . But in that Case it was agreed by all the Iustices , That after a Fine is levied of Land , Chancery . Attornment . that the Chancery may compel the Tenant of the Land to Attorn: And so where an Annuity or Rent is granted to one for life , or in Fee , and the Deed is Executed , Sealed , and Delivered , but no Seisin is given to the party of the Rent or Annuity ; the Court of Chancery may decree a Seisin of the Rent to be given , and the Rent to be paid to the Grantee , and that was said to have been often times decreed in the said Court of Chancery .

CCLXXXIV . Mich. 30 Eliz. In the Common Pleas.

Intrusion . Trespass . NOte , by Anderson Chief Iustice . If one intrude upon the Possession of the King , and another man entreth upon him , that he shall not have an Action of Trespass for that Entry , for that he who is to have and maintain Trespass , ought to have a Possession : But in such Case he hath not a Possession , for every Intruder shall answer to the King for his whole time , and every Intrusion supposeth the Possession to be in the King , which all the other Iustices agreed , except Periam , who doubted of it . And Rhodes Iustice said , and vouched 19 E. 4. to be that he cannot in such Case say in an Action of Trespass . Quare Clausum suum fregit .

CCLXXXV . Mich. 29 Eliz. In the Common Pleas.

NOte , It was holden by Popham Chief Iustice , Remainder . and so said by him to have been resolved upon a Special Verdict in the County of Somerset , 20 Eliz. That where a Lease was made unto Husband and Wife for their Lives , the remainder to the Heirs of the Survivor of them , that the same was a good remainder notwithstanding the incertainty , and that in that case , after the death of the Wife , he should have Iudgment to recover the Land . But if a man be possessed of a term for 20 years in the right of his Wife , and he maketh a Lease thereof for 10 , rendring rent to him , his Executors and Assigns , and dyeth , that in such case , though the Wife surviveth , yet he shall not have the rent , because that she cometh in paramount the Lease : But if a man be possessed of a term in the right of his Wife , Mortgage . and Mortgageth for payment of a certain Sum of Money at a day certain , and before the day the Wife dyeth , and the Husband payeth the Money at the day , and then dyeth ; whether his Executors , or the Administrators of the Wife , should have the term , was not then resolved : Ideo Quaere that Case .

Trin. 32 Eliz. In the Exchequer . CCLXXXVI . Bartase and Hinds Case .

NOte , Manwood Chief Baron gave it for a general Rule for all Counsellors at Law , That they did not advise any Collectors of Subsidies or Fifteens , to exhibit Bills in the Exchequer Chamber for the Non-payment of Subsidies , &c. for such Bills should not be allowed hereafter , because they had remedy by Distress : Also it was holden , That if any be assessed for the Fifteen which he ought to pay , or if two Towns are to pay together , and the one Town be taxed more than it ought to be , or had been accustomed , those which are grieved by such Sesment may have a Commission out of the Exchequer , which is called Ad aequaliter taxand' ; and that was put in ure in a Case between Bartase and Hind , where one of them was Lord of the Town of Little Marloe , and the other of Hedford : And it was also holden , That Fifteens are to be levied of Goods and Chattels properly , and one Township sometimes is richer than another , and therefore it is not reason that they pay their Fifteen always according to the same proportion : But by Clark Baron , where the Custom hath been that the Fifteen should be taxed according to the quantity of Acres , there the Rate and Purport shall be always one , whosoever holds the Land , and as to the Commission Ad aequaliter taxand' , Manwood and Fanshaw said , That they could shew above twenty Presidents of it .

Mich. 17 & 18 Eliz. In the Kings Bench. CCLXXXVII . Barnard and Tussers Case .

Debt . BArnard recovered in a Scire Facias upon a Recognizance against Tusser , and afterwards brought an Action of Debt upon the same Recovery , and it was adjudged maintainable , notwithstanding that it was Objected , That the Iudgment in such Scire Facias is not to recover Debt , but to have Execution of the Iudgment . And by Wray Chief Iustice , If in a Scire Facias to have Execution of an Annuity the Plaintiff hath Iudgment , upon such Iudgment he shall have an Action of Debt .

Mich. 17 & 18 Eliz. In the Kings Bench. CCLXXXVIII . The Earl of Arundel and Bradstocks Case .

THe Case was , The Earl of Arundel let Lands to Bradstock for years , upon condition that the Lessee should not do any Act by which his Goods and Chattels might be forfeited : Bradstock committed Felony , and before any Attainder he obtained his Charter of Pardon : It was holden in this case , That the Earl might lawfully enter ; but if the words of the Condition had been , Whereby the Goods ought to be forfeited , chen it had been otherwise ; for before Attainder they ought not to be forfeited .

Mich. 17 & 18 Eliz. In the Kings Bench. CCLXXXIX . Taylors Case .

Outlawry . How avoided by Plea in Person . TAylor was Outlawed in Debt , and a Supersedeas of Record was delivered to the Sheriff before the awarding of the Exigent : It was holden that the party should avoid the same by Plea ; then it was moved , if the Plea should be pleaded by Attorney , or in Person : To which it was said by Manwood , That where matter in fait is pleaded in avoidance of an Outlawry , it ought to be pleaded in Person , but matter of Record by Attorney . And Ford Prothonotary said , It was so agreed in Sir Thomas Chamberlains Case in 7 Eliz. and so it was adjudged in this Case .

CCXC. Mich. 17 & 18 Eliz. In the Kings Bench.

THe Case was , The Prior of Norwich made a Lease for life by Indenture , by which the Lessee covenanted to find Victuals to the Cellerer at all times when the Cellerer came thither to hold Court ; the Priory was dissolved and the Possessions given to the Dean and Chapter newly erected : It was holden in this case , That the Lessee should perform that covenant to him who supplyed the Office of Cellerer , scil. the Steward : And it was also holden , That the Lessee should have an Action of Covenant against the Assignee of his Lessor , or his Lessee , at his Election .

CCXCI. Mich. 19 & 20 Eliz. In the Kings Bench.

A. B. & C. three Ioyntenants give their Lands to D. in tail , Joyntenants . the remainder to A. in tail : It was the opinion of Mead , That the remainder is void : Manwood and Harper , A. and B. Ioyntenants , Grants . A. makes a Lease for life of his Moiety to C. and grants the reversion to B. the same is good , quod Curia concessit . A. and B. Ioyntenants of a Term , A. grants his Moiety to his Companion , the same is good without question , if it be by Deed ; but if it be by Word , Quaere .

Hil. 20 Eliz. CCXCII . Hills Case .

HIll . 20 Eliz. Rot. 371. Giles Hill seized of a Close of Pasture called Pitmonde , and of Broome Acre , two other Closes in his Demesne as of Fee ; and so seized the said Giles , and Agatha his Wife , and Robert their Son , and B. his Wife , by Indenture leased the same Broome Acre , and the said other two Closes to W. Hutchin and B. and his Wife for 90 years , Si quis eorum tam diu vixerit reddendo inde annuatim praedicto Egidio , & Uxori ejus , & Haeredibus ipsius Egidij , viz. pro Broome Acre 3 s. 4 d. & pro una Clausura 10 s. & pro altera 20 s. ad quatuor anni Terminos , with Clause of Re-entry , If any part or parcel of the said rent be behind , &c. Giles and Agatha dyed : The Son sold the reversion of Broome Acre 12 Febr. 12 Eliz. by Deed Indented , rendring rent to Smith and Heale ; the rent of Broome Acree is behind , Smith and Heale enter , and lease the same to Reynolds for three years , who being Ejected , brings Ejectione firmae and Iudgment was given for him , for that they are several Reservations , and several Conditions : And a difference was taken between this and Winters Case ; for in Winters Case the rent reserved originally is entire ; but in this Case the rent is originally several ; and also in Winters Case the condition was , That if any part of the rent be behind , that the Lessor should re-enter into the whole . Note that the rent reserved for Broome Acre was 3 s. 4 d. and the condition was , si contingat praedict' reddit' , ou ascun parcel de ceo to be behind in part , or in all , by one Month after any Feast , &c. in quo solvi debuit , Quod tunc bene licebit praefat' Egidio , &c. in omnia & singula praemista superius specificat' re-entrare ; Et nomine , That pro 10 de nariis pro Broome Acre pro uno quarterio anni aretro existent , the Vendees of the Reversion did enter .

CCXCIII . Mich. 19 Eliz. In the Common Pleas.

Leases . NOte by Dyer and Manwood Iustices , A. leaseth to B. for years , the remainder to the right Heirs of the said B. and makes Livery accordingly , that the said remainder is void , because that there is not any person in esse who can take presently by the Livery , and every Livery ought to have its operation presently : But where a Lease is made to B. for life , the remainder to his right Heirs , that he hath a Fee executed , and it shall not be in abeyance ; and Iudgment was given accordingly .

CCXCIV. Hil. 23 Eliz. In the Common Pleas.

THe Case was , a Man made a Lease of a Garden , containing three Roods of Land , the Lessee is ousted , and he brought Ejectione firmae , and declared , That he was Ejected of three Roods of Land : And by Rhodes Serjeant , The Declaration shall not be intended that the Plaintiff was Ejected out of the Garden of which the Lease was made ; which Dyer granted ; for Gardinum is a thing which ought to be demanded by the same name in all Praecipe's : And this Action of Ejectione firmae is higher than an Action of Trespass ; and the Plaintiff if he recover shall be put into possession by it . Mead and Windham held the contrary ; and they agreed , That in all real Actions a Garden shall be demanded by the name of Gardinum . But this Action of Ejectione firmae is in the nature of Trespass , and it is in the Election of the party to declare , as he doth , or for to declare of the Ejectment of a Garden : For a Garden may at one time be used for a Garden , and at another time for Plough-Land : But they conceived the better course to be , and the better order of pleading to have been , if the Plaintiff had declared , That he was Ejeected of a Garden containing three Roods of Land , as in the Lease it is specified , Vide 22 E. 4. 13. Assise of a Garden . Vide Cook 11 Part , Savells Case . Ejectione firmae of a Close vocat' Leedes , containing three Roods , a Rule that such Action lyeth not of a Close , although it hath a certain name , but it ought to be of so many Acres , and of what nature every Acre is .

CCXCV. Mich. 19 Eliz. In the Common Pleas.

AN Action of Debt was brought by an Administrator , who declared , That the Administration was committed unto him by the Archbishop of Canterbury : It was holden , That in such Case he needed not to declare Ratione Praerogativae suae ; or that the Intestate had bona notabilia in divers Dicocesses ; for if the Intestate had not Goods in divers Diocesses , the same shall come and be shewed on the other side ; and then the Plaintiff shall shew the same in certain , and to that purpose divers Presidents were shewed to the Court by Sandbege and Best , principal Clerks of the Court ; and the same was also affirmed by the Prothonotaries of the Court of Common Pleas.

CCXCVI. Mich. 19 Eliz. In the Kings Bench.

IN an Action upon the Case , the Plaintiff declared upon Trover and Conversion to his use ; It was pleaded by Plowden , That the Defendant before the Action brought , had lawfully sold the Goods , whereof , &c. and he demanded Iudgment of the Action : As if one hath Goods by Trover , and Bails them over before any Action brought against him , Detinue doth not lye against him , which Wray Chief Iustice concessit , as to the Detinue : But where such a person , who hath Goods by Trover , Bails them quibusdam ignotis , such an Action will lye against him .

CCXCVII. Mich. 19 Eliz. In the Common Pleas.

IN a Writ of Dower the Demandant recovered by default , Retorn of the Sheriff . and the Sheriff took an Enquest de Officio , by which it was found that the Husband did not dye seized prout eis constare poterit ; and that Inquisition is retorned by the Sheriff , and filed : It was moved by Mead , That the Office and Inquisition was not good , for the Office ought to have expresly found , That the Husband dyed seized , or not , and not ambiguously as it doth here , prout eis constare poterit , and therefore by the Award of the Court , the Retorn was taken off the File because it was insufficient , and a Writ de novo awarded .

CCXCVIII .

A. Is bound to B. upon Condition to stand to the Arbitrement of certain persons , who award that B shall make a Release to A. of all Actions , Debts , Duties , and Demands at the request of A. and afterwards A. comes to B. and requires him to make him a Release ; who said to him , That he was unlearned , and that he would go to one to make it , and the next day after the request he seals and delivers it to A. who accepts of it : It was holden by Windham and Mead , That notwithstanding that Acceptance , the Obligation was forfeited ; for they said , That presently after request , he ought to have done it in the speediest manner that might be . Vide acc' 15 E. 4. 31. Vide also Wottons Case , 16 Eliz. Dyer 338.

Mich. 26 Eliz. In the Common Pleas. CCXCXI . The Dean and Chapter of Christ Church and Parotts Case .

Grants of the King. NOte in the Common Pleas in a Case between the Dean and Chapter of Christ Church in Oxford and Parott ; It was holden by the Iustices , that if the King grants Lands unto a Corporation by another name than that which they were named before , yet the Land shall pass , and the Letters Patents shall be to them as a new Incorporation , &c.

Mich. 19 Eliz. In the Common Pleas. CCC . Beechers Case .

Jurors . BEecher being a Gentleman of the Middle-Temple , was Retorned in an Attaint , and before the Retorn of the Pannel , he became a Minister of the Church ; and now at the day of the Retorn he appeared , and prayed to be discharged according to the Priviledge of those of the Ministry : But the Court would not allow of his prayer , because that at the time of the Pannel made he was a Lay-man : Wherefore he was sworn one of the Iury.

Hil. 19 Eliz. In the Kings Bench. CCCI. Vernon and Sir Thomas Staveleys Case .

TEnant in Tail made a Lease for the life of the Lessee according to the Statute of 32 H. 8. Discontinuance . and by Wray and Gawdy Iustices , the same was not a Discontinuance : But if Tenant in Tail levyeth a Fine which bindeth his Issue by the Statute of 4 H. 7. 32 H. 8. that same is a Discontinuance . Look upon the Statute of Leases , and of Fines ; the words in the former are , scil. Such Fines shall be good and effectual in the Law ; but in the other , scil. Such Fines shall be a bar against the Conusor and his Heirs . And if Tenant in Tail after such a Fine dyeth without Issue , the Donor cannot enter , but is put to his Formedon : And as to the principal Case , Dyer agreed in opinion with Wray and Gawdy .

Trin. 28 Eliz. Rot. 1027. CCCII . Milborne and the Inhabitants of Dunmowes Case .

MIlborne brought an Action upon the Statute of Winchester against the Inhabitants within the Hundred of Dunmow in the County of Essex : It was found by Special Verdict , Upon Statute of Hue and Cry. That the Plaintiff was robbed the 23 of April , inter horam secundam & Matutinam tempore Nocturno , & ante Lucem ejusdem diei ; and the Opinion of the Court was clear , That the Plaintiff should be barred , for the said Statute provides for ordinary Travel , as in the case of Archpole , who came to his Inn after Sun-set , & ante Noctem in tempore diurno , which is an usual time for Travellers to come to their Inn ; but the Law doth not receive any in protection of this Statute , which travel in extraordinary hours ; for it is the folly of the traveller to take his journey so out of season ; and the inhabitants are not bound to leave their houses , and attend the high-ways tempore Nocturno : And another reason was alledged by the Iustices , because that the said Statute appoints Watch to be kept in the time of night à festo Assensionis usque festum Sancti Mich. and this Robbery was done the 23 of April , so out of the said time : And afterwards Iudgment was given against the Plaintiff .

CCCIII. Hil. 29 Eliz. In the Common Pleas.

Devises . SErjeant Fenner demanded the Opinion of the Court upon this Case . A. devised Lands to his Wife for life , and afterwards to B. his Son , and his Heirs , when he should come to the age of 24 years ; and if his Wife dyed before that his said Son should attain to the said age of 24 years , that then J S. should have the said Lands until the said age of the said Son : A dyed , J. S. dyed the Wife dyed , the Son being within the age of 24 years ; If the Executors of J. S. should have the Lands after the death of J. S. until the said age of the Son , was the question . Anderson and Periam conceived that he should not ; for this Interest limited by the Will to J. S. was but a possibility , which was never vested in him , and therefore could not by any means come to his Executors . Rhodes and Windham doubted of it . And Fenner put the Case 12 E. 2. Fitz. Condition 9. where Land is Mortgaged to J. S. upon payment of Money to the said J. S. or his Heirs , such a day , and before the said day J. S. by his Will deviseth , That if the Mortgagor pay the Money , that then A. B. shall have them , that this Devise of that possibility is good , which Case all the Iustices denied . And Windham put the Case between Welden and Elkington , 20 Eliz. Plowd. 519. where Lessee for years devised his term to his Wife for so many of the years of the said term as she should live ; and if she dyed within the term , that then his Son Francis should have the residue of the years not incurred , Francis dyed intestate , the Wife dyed within the term the Administrator of Francis had the residue of the term , and yet nothing was in Francis the intestate but a possibility . A Lease was made to one Hayward , his Wife , and one of his Children , Habendum to Hayward for 99 years if he so long live , and if he dye within the said term , that then the said Wife should have the said term for so many of the years as should be to come at the time of the death of her Husband , and if she dyed also within the said term , that then the Child , party to the Demise , should have the same for so many of the years of the said term as should be not expired at the time of the death of the Wife . And the case of Cicell was cited Dyer 8 Eliz. 253. A Lease was made to William Cecill pro termino 41 annorum si tam diu vixerit : Et si obierit infra praedictum terminum , extunc Eliz. uxor praedict. Will Cicell habebit , & tenebit omnia & singula praemissa pro residuo termini praedict. incompleti , si tam diu vixerit : Et si praedict. Eliz. obierit infra terminum praedict. Tunc Willielmus Cicell the Son , &c. shall have and hold it pro residuo termini praedict. completi . And it was holden by Catlin and Dyer , that these Remainders were void , for the term is determinable upon the death of William Cecill the Father , and the residue of the said term cannot remain : And by the Lord Anderson , the Remainders of the term limited ut supra are utterly void ; for every Remainder ought to be certain , but here is no certainty ; for it may be that the first possessioner of the term may live longer , so as he in the Remainder cannot know what he shall have . And such was also the Opinion of Rhodes . And he put the Case between Gravenor and Parker , 3 & 4 Phil. & Ma. Dyer 150. A Lease was made to A. for life by Indenture , Et provisum fuit by the same Indenture , That if the Lessee dyed within the term of sixty years then next ensuing , that then his Executors should have in right of the Lessee so many of the years as should amount to the number of sixty years , to be accounted from the date of the Indenture ; and it was holden , That that secondary Interest to the Executors was void , and that the words concerning the same did sound in Covenant .

CCCIV. Trin. 31 Eliz. In the Common Pleas.

THe Case was , A made B. and C. his Executors , Executors Action . they took upon them the charge of the Administration , and afterwards B. dyed ; and now an Action of Debt was brought against the surviving Executor , and the Executor of the other Executor , and the Writ was abated , because against the surviving Executor it ought only to be brought ,

Pasc. 30 Eliz. In the Common Pleas. CCCV . Smith and Babbs Case .

SMith brough an Action upon the Case against Babb for stopping of Water incessanter decurrent . by his Land , Action upon the Case . Stopping of Water . by which his Land was drowned , and his Grass rotted : Exception was taken to it , because it is not alledged , That the Water had so run time out of mind . Gawdy Iustice , If the Water hath run there but for one year , if the Defendant hath diverted it , so as he hath drowned the Plaintiffs Land , the Action will lye well enough .

Trin. 26 Eliz. In the Common Pleas. CCCVI . Basil Johnsons Case .

BAsil Johnson one of the Clerks of the Chancery , Priviledge of a Clerk in Court. was impleaded in the Common Pleas by Bill of Priviledge , by an Attorney of the said Court , and now Basil came into Court , and shewed that he is one of the Clerks ut supra , and prayed his Priviledge ; but the whole Court was against it , because the Plaintiff is as well priviledged in this Court , as the Defendant is in the Chancery , and was first interessed in his Priviledge by the bringing of his Writ , but the Defendant was not entituled to his Priviledge before the Arrest ; and afterwards by the award of the Court ; the said Basil was ousted of his Priviledge .

32 Eliz. In the Common Pleas. CCCVII . Collier and Colliers Case .

Prohibition . BEtween Collier and Collier the Case was , That the Plaintiff was Sued for Incontinence in the Spiritual Court , and there they would have him Answer upon his Oath if he ever had Carnall Knowledge of such a Woman ; upon which he prayed a Prohibition : Vide inde F. N. B. 41. a. Register 36. Et nemo tenetur seipsum prodere : But the Court would advise of it .

32 Eliz. In the Common Pleas. CCCVIII . Mountney and Andrews Case .

Execution . IN a Scire Facias by Mountney against Andrews of Grays-Inn , upon a Iudgment in Debt , the Defendant pleaded , That heretofore a Fieri Facias , at the Suit of the now Plaintiff , issued to the Sheriff of Leicester , by force of which the said Sheriff took divers Sheep of the Defendants , and that as yet he doth detain and keep them . It was holden by the whole Court to be a good Plea , although he did not say , That the Writ was retorned ; for the Execution is lawful notwithstanding that , and the Plaintiff hath his remedy against the Sheriff .

Hil. 29 Eliz. In the Common Pleas. CCCIX . Dawbney and Gores Case .

BEtween Dawbney Plaintiff and Gore and Gon Defendants , in a Writ of Disceit , In Arrest of Iudgment it was moved , That two are accountable to one , and the one of them accounts without the other , that that is not any account , and then no account can be assigned in that . As to that it was said by Popham Attorney-General , That notwithstanding that one be not compellable to account without his Companion , and by way of Action of Account , the one shall not account without the other , unless the Process be determined against him , and then he who appeareth hath accounted and the other against whom the Process is determined , hath purchased his Charter of Pardon , the account made by his Companion shall bind him . Vide inde 41 E. 3. 13. Yet if one of the Accomptants will account willingly , the same is a good account : And in account , if one confesseth , and the other pleadeth in bar , the confession of the one shall bind the other ; and such was the Opinion of the Court. Another matter was moved in this case , because that one Tedcastell and Swinnerton , being accountable to the said Gores and Dawbney , they have accounted to Dawbney only , and he alone hath accepted of the account , and that is not any account , therefore no desceit , but the Action of Account doth remain . To which it was answered by Popham , That the same was a good account , being accepted by Dawbney , and should bind the Gores ; for an Account is a personal thing , as an Obligation , which may be released by one of the Obligees . Vide 14 E. 4. 2. Where one was accountable to two , and the one of them did assign Auditors , before whom the Accountant is found in Arrearages , and thereupon both of them brought Debt upon Account , and well : And so none of the Exceptions were allowed by the Court.

Mich. 33 Eliz. In the Common Pleas. CCCX . Trivilians Case .

THo. Trivilian Tenant in tail of White Acre , Black Acre , and Green Acre , leased White Acre for years to B. and Black Acre to C. and afterwards made a Feoffment of all three Acres to F. and others by Deed , in which Deed was comprised a Letter of Attorney , in which he ordained Harris , and three others , his Attorneys , joyntly and severally to enter in the Premises , and every part thereof in the name of the whole , and possession in his name to receive , and afterwards to make Livery , &c with other ordinary and usual words ; and it was expressed in the said Deed of Feoffment , that the Feoffment should be to the intent to perform his last Will ; and afterwards one of the said Attorneys entred into the Land demised for life , and expelled the Tenant for life , and made Livery and Seisin to the Feoffees accordingly ; and afterwards the said Harris , another of the Attorneys , scil. one of the Ioynt Lessees , being one of the three Attorneys , made Livery of the Land demised for years ; and after the Feoffor in the time of Queen Eliz. by his last Will devised , That the Feoffees should be seized of the Land , Rents and Reversion , until of the Issues and Profits thereof certain Sums of Mony should be paid to his younger Sons , and dyed . And Exception was taken to the pleading , because it is not specially shewn , that the Land devised was holden in Socage . And that was holden a sufficient Exception : And the Court was of Opinion , That the Opinion of Dyer , Devises . Whiddon , and Bendloes in 16 Eliz. was not Law ; for by the common Law no Land was devisable , but by Custom , which ought to be pleaded where Title is made by Devise . Tenances . And now by the Statute all Lands holden in Socage are devisable , and but two parts of the Land holden by Knight Service ; and therefore he who would make Title to himself by a Devise , ought to shew the Tenure of it , and so it was lately adjudged in the Kings Bench in Thompsons Case . And by Anderson and Periam , This Feoffment was well executed for the manner of it , Attorneys make Livery . for the Letter of Attorney is Conjunctim & divisim ad intrandum in omnia & singula praemissa ; and upon these words one Attorney may make Livery in one parcel of the Land , and the other Attorney in the other parcel , and in this case , if one of the said Attorneys make Livery in one part only , without medling with the residue by himself , or by any other , the same shall pass ; for it is not necessary that all pass , or nothing at all .

7 Eliz. Dyer 79. CCCXI. The Dutchess of Suffolks Case .

ADrian Stokes and the Lady Francisca Dutchess of Suffolk his Wife , brought a Quare Impedit against the Bishop of Exeter and others : The Bishop pleaded , and demanded Iudgment of the Writ , because he said , It appeareth by the Writ , Quod praedicta Francisca uxor praefati Adriani , nominatur in dicto Brevi Domina Francisca Ducissa Suffolk , ubi per Legem terrae eadem Francisca by her Marriage betwixt the aforesaid Adrian , and her the said Frances , had lost her name of Dignity , and ought to be named Francisca uxor praefati Adriani : Wherefore , and because the said Frances is named Lady Dutchess of Suffolk in the said Writ , therefore he demanded Iudgment of the Writ . And afterwards the Plaintiffs did discontinue their Suit , and durst not proceed . Vide the Case 7 E. 6. Dyer 79.

Mich. 4 & 5 Phil. & Mary . CCCXII . The Queen , Due , and Kirbys Case .

THe King and Queen brought a Writ of Disceit against Due and Kirby , and declared , That Colley , was seized of certain Lands in Fee , and holden of the King and Queen as of their Manor of Westbury , which Manor is ancient Demesne , and so seized , levied a Fine to the said Due for Conusans de droit &c. Due rendred unto Colley for life , the Remainder over to Kirby in Fee ; Colley dyed , Kirby entred as in his Remainder : Kirby pleaded , That the Land is Frank-fee , &c. upon which they are at Issue ; which Issue depending , not tryed , Due dyed : It was moved that the Writ should abate . But it was allowed ; for this Action is but Trespass in its Nature for to punish the said Disceit : And Due had nothing in the Land , but is named only because he was party to the Disceit . And no Land is to be recovered , but only the Fine reversed .

Pasc. 26 Eliz. In the Kings Bench. CCCXIII. Russels Case .

RUssel was condemned in an Action of Debt , Execution . and after the year and day the Plaintiff sued a Capias ad satisfaciend' against him , and he was taken by force of it , and committed to the Marshal as in Execution : It was holden by the Court , That the same was a void Execution , and not only avoidable by Error , and therefore the Defendant was discharged , for it is not at any Execution ; and the Plaintiff may have a Scire Facias when he will .

Pasc. 26 Eliz. In the Kings Bench. CCCXIV . Wroth and Capells Case .

BEtween Wroth and Capell the Case was , 3 Leon. 102. That A. was indicted upon the Statute of 8. H. 6. and Exception was taken to the Indictment , because there were no words of Freehold in it , or to prove that the party grieved had any Freehold , whereof he might be disseised : But because the words of the Indictment were Expulit & disseisivit , which could not be true , if the party expelled and disseised had not Freehold , therefore the Exception was not allowed , &c. Another Exception was taken to the Indictment , for that the words were in unum Tenementum intravit , and this word Tenementum is too general , and an incertain word ; and therefore for that cause the party was discharged . But the Indictment was further in unum Tenementum , & 10 Acras terrae eidem pertinent . and as to those Acres he was put to answer .

CCCXV. Pasc. 26 Eliz. In the Common Pleas.

Execution . NOte , It was agreed by the Court , and affirmed by the Clarks , That if an Action of Debt be brought upon an Obligation against two upon one Ioynt Praecipe , and the Plaintiff hath Iudgment to recover , that one Ioynt Execution ought to be sued against them both ; but if the Suit were by Original and several Praecipe's , Execution might be sued forth against any of them .

Mich. 8 & 9 Eliz. In the Common Pleas. CCCXVI. Belfield and Rous's Case .

IN Dower ( by Sibill Belfield , who was the Wife of Anthony Rous ) against Thomas Rous , they were at Issue , upon Detinue of Charters , and it was found for the Demandant ; and it was further found , That the Husband of the Demandant , of whose Seisin she demanded Dower , dyed having Issue Charles Rous , Quodque idem Carolus & dict' Sibill perceperunt & receperunt per spacium sex annorum proxime post mortem dict' Anthonij the Issues and Profits of the said Lands , whereof the Demandant now demands Dower ; and that the said Charles afterwards dyed without Issue , after whose death the said Thomas Rous entred , &c. And Iudgment was given for the Demandant , and to recover damages after the death of her Husband .

CCCXVII . Pasc. 7 Eliz. In the Common Pleas.

Uses . BEfore the Statute of Vses a Feoffment is made to the use of a Man sole , and a Woman sole , and their Heirs , and afterwards they inter-marry , and afterwards the Statute of Vses came : It was the Opinion of the Iustices , That they should hold the Land in such sort as they held the Vse , scil. by several and divided Moieties ; for by the said Statute the possession shall be executed to the Vse , in such Nature , Condition , and Quality as it was before .

Mich. 28 & 29 Eliz. In the Kings Bench. CCCXVIII . Sir Gervaise Clyftons Case .

A Quo Warranto was brought against Sir Gervaise Clyfton , 3 Leon. 184. Quo Warranto . and shewed , That the said Sir Gervaise was seized of a Manor and a Messuage , within which he claimed to have a Court with view of Frank-pledge , and other Liberties , and that without any Grant or Authority , usurpavit Libertates praedictas : That the Defendant pleaded Quod non usurpavit Libertates praedictas infra Messuagium praedict' modo & forma ; and thereupon it was demurred in Law , for it was said , That the Defendant ought to have said Non usurpavit Libertates praedictas , nec eorum aliquam , for he ought to answer singulum ; and also he ought to have pleaded as well to the Manor as to the Messuage ; for if the Defendant hath holden Court within any place of the Manor it is sufficient . And the Case 33 H. 8. Br. Travers sans ceo 367. was cited , and Information was in the Exchequer , That the Defendant had bought Wools of A.B. contrary to the Statute , the Defendant pleaded , That he had not bought of A. B. and the Plea was not allowed , for he ought to have said , That he had not bought modo & forma , for if he had bought of A. B. or J. S. the same is not any matter , nor traversable , which Cook denied to be Law : And he conceived also that the Information upon the Quo Warranto is not sufficient ; for by the same the Defendant is charged to hold a Court , and it is not shewed what Court , and it may be it was a Court of Pypowders , Turn , &c. And Vide 10 E. 4. 15 , 16. a Quo Warranto contains two things , 1 Claim , 2. Vsurpation . And here the Defendant hath answered but to the Vsurpation , and it hath said nothing as to the Claim : And it hath been holden here , heretofore , that he ought to make answer to both . And it hath been holden in a Reading upon the Statute de Quo Warranto , which is supposed to be Frowicks Reading , That a Quo Warranto doth not lye of such Liberties which do not lye in Claim , as Goods of Felons , &c. which lyeth only in point of Charter .

CCCXIX. Temps Roign Eliz.

THe Prior of Bath leased his Manor of A. to C. for life , rendring rent , and afterwards the Priory was dissolved , the King leased the whole Manor , cum pertinenciis , to Sir Walter D. Kt. Dyer , The matter depends upon this point . If the Demesne be severed from the Services during the life of the Lessee : And he conceived , That the Lord cannot hold a Court , if such a power be not reserved to him upon the Lease . Weston , The Manor nor is in suspence during the Lease , for a Reversion upon an Estate for life , and Services in possession cannot be united to make a Manor , but contrary if but parcel had been leased , Quod Curia concessit . Welch , The Demesnes are severed from the Services for ever , as if they had been granted in Fee ; but here having regard to the Lessor , the Demesnes and Services are united and made one Manor ; but as to the Lessee , and all others , the Services are in gross ; and of that Opinion was also Dyer . And he said , If a Bishop leaseth his Demesnes of his Manor for life , and dyeth , the Reversion shall be in his Successor , and was in himself for his life in the right of his Church : And if Husband and Wife seized of a Manor in the right of his Wife , lease the Demesnes of the said Manor for life , yet he hath the Reversion in the right of his Wife , and in such Case it doth remain a Manor ; but if the Husband sole had made the Lease , he had gained the Reversion to him , and so severed it from the Manor .

CCCXX . Temps Roign Eliz.

Devises . A. Devised that his Wife should take the Profits of his Lands , until his daughter should come to the full age of 25 years , and if the daughter dyed within the age of 18 years , then his wife should have the Land for her life , the remainder over to J. S. The daughter became of the age of 18 years , and dyed before she came of the age of 20 years ; and Dyer held clearly , That the Remainder was gone ; for the daughter accomplished , and survived the age of 18 years : And he said that the case late depending in the Kings Bench was this , The Husband devised the Profits of his Lands to his Wife for 25 years , and that then his Son should have it in Tail to him , and to the Heirs of his Body , &c. now before the 25 years expired he hath Fee , and if he hath Issue , then his Estate is changed into Tail : But by Carus he hath both Estates , scil. Fee-tail , and Fee-expectant .

CCCXXI. Temps Roign Eliz.

Surrenders . A Woman Tenant in Tail made a Lease not warranted by the Statute , took a Husband , had Issue and dyed ; the Husband being Tenant by the Courtesie surrendred to the Issue : It was holden that he should not avoid the Lease during the life of the Tenant by the Courtesie : But yet some held , That the Surrender ought to be by Deed , as a Lease to A. for life , the Remainder to B. for life , the Remainder to C. in Fee ; if B. surrenders to C. it must be by Deed.

CCCXXII . Temps Roign Eliz.

THe Case was this , A. leaseth Lands to B. for years , Extent . rendring Rent , with Clause of re-entry ; and afterwards Debt is recovered against him : It was holden , That now the Moiety of the Rent and the Reversion was extendable by Elegit , and upon such Extent , Condition suspended . the Condition is suspended during the Extent , as well in the Lessor , as in the Party who hath the Extent .

Temps Roign Eliz. CCCXXIII . Mitchell and Nordens Case . Procedendo upon Aid-Prayer in Dower .

ELizabeth ' , &c. Dilectis Jacobo Dyer , &c. Monstravit nobis Elizabeth ' Mitchell , quae fuit uxor , &c. Quod cum ipsa prosecuta fuit coram vobis & sociis vestris , &c. Breve nostrum de Dote unde nihil habet versus Thomam Norden &c. Et praedictus Thomas venit , & dixit , Quod vir praedictae Elizabethae was seized , and leased to him for life with warranty ; and for that cause he vouched to warranty Tristriam' Mitchell Filium & Haeredem dict' Richardi infra aetatem existen' , & in Custodia eo quod dictus Richardus die quo obiit , &c. Et hoc paratus est verificare . Unde non intendit quod vos praefati Justiciarii nostri nobis inde inconsultis ulterius procedere velletis : Et petiit auxilium de nobis , & habuit : Et super hoc dies datus est tam praefatae Eliz. quam dict. Tho. Norden à die Pasc . &c. Et dictum fuit praefatae Eliz. Quod sequatur penes vos , quarum quidem allegatione praetextu vos in placito praedict. ulterius procedere distulistis , & adhuc differtis in ipsius Eliz. dispendium & gravamen : Et super hoc , eadem Eliz. venit hic coram nobis in Cancellaria nostra ; Et petit Breve nostrum de Procedendo , inde in hac parte vobis dirigend' : Super quo quaesita fuit in eadem Curia Cancellariae nostrae à Gilberto Gerrard , Attornato nostro generali , qui pro nobis in hac parte sequitur si quid dicere scivit , aut potuit , per quod dict' Tristriamus infra aetatem , & in custodia nostra existen' ut praefatur , ad Warrantiam obligetur aut obligari debeat , aut si idem Gilbertus aliquid pro nobis habeat aut dicere scivit quare Breve nostrum de Procedendo praefatae Eliz. in ea parte minime concederetur . Qui quidem Gilbertus adtunc , & ibidem dixit , quod praefat' Tho. Norden non informavit praedict. Gilbertum de aliquo , per quod praedict. Tristriamus in custodia nostra existen' ullo modo obligetur ad warrantizand' , & eidem nihil dixit aut dicere scivit & potuit quia praedict. Breve de Procedendo eidem Eliz. in ea parte concederetur : Nos inde nolentes eidem Eliz. justiciam ulterius differre in hac parte : Vobis Mandamus , quod si coram vobis in placito praedict. taliter sit processum & allegat' , tunc in placito illo , & in redditione Judicii in eodem placito cum ea celeritate quam de jure & secundum Legem & Consuetudinem hujus Regni nostri Anglioe poteritis procedatis , & partibus praedict. plenam & celerem , &c. dicta allegatione non obstante . Teste me ipsa , &c. Et super hoc eadem Eliz. petit Judicium & Seisinam suam versus praedict. Thomam Norden de tertia parte Tenementorum praedict. cum pertinentiis . Super quo visis , &c. Consideratum est , &c. Quod praedict. Elizabetha recuperet seisinam suam versus praefatum Thomam Norden de tertia parte Tenementor' praedictor' . Et quod idem Thomas expectet si praedict' Tristriamus Tenementa praedict. unde &c. ei warrantizari debeat pro recompensatione valentiae tertiae partis praedict' versus eundem Tristriamum ratione Warrant' illius habend' durant' minore aetate sua , Et donec manus dict' Dominae Reginae à possessione terrae ipsius Tristriami amoveantur .

Virtute Brevis istius mihi direct' ultimo die , &c. habere feci infranominat' Eliz. plenariam seisinam de tertia parte Messuagii , viz. de una Aula parcell' Messuagij praedict. ac de una Camera sive Conclave in Messuagio praedict. existent' , necnon de uno Solario , ac de una parcell' ambulatorij vocat' a Gallery , alia parcell' dict' Messuagii necnon de tertia parte unius Molendini , viz. de integro Molendino praedict' per quemlibet tertium mensem quolibet anno durante vita , &c. occupand' , & gaudend' , &c.

CCCXXIV . Hil. 25 Eliz. In the Kings Bench.

Traverse . IN an Action upon the Case , the Plaintiff declared upon certain Corn which came to the hands of the Defendant , and that he converted it , and supposed the coming to be to his hands in London . The Defendant said , That he was seized of certain Lands in R. in Berks , and that the Plaintiff did thereof him disseise , and sowed the Lands , and before severance he himself re-entred , and took away the Corn , as was lawful for him to do absque hoc , that any Corn came to his hands in London : and by the Opinion of the whole Court , the Traverse was holden to be good .

Hil. 25 Eliz. In the Common Pleas. CCCXXV . Wingate and Sands Case .

EJectione firmae by Wingate against Sands : It was moved upon Evidence , That a Fine was levied , and in one Term three Proclamations were made , and before that the fourth Proclamation was made , the Term was adjourned , so as the fourth Proclamation could not be made the said Term : It was agreed by the whole Court , That by that adjournment the fourth Proclamation was not executed , but should be supplyed the next Term , in which the fifth Proclamation was to be made .

Trin. 29 Eliz. In the Star-Chamber . CCCXXVI . The Lord Cromwell and Townsends Case .

HEn. Lord Cromwell Exhibited a Bill in the Star-Chamber against Roger Townsend Esq for that the said Townsend in an Action between James Tavernor Plaintiff , and Ja. Cromwell , Firmor of the said Lord Cromwell Defendant in Trespass , in the favour or unlawful maintenance of the said Tavernor , did procure a partial Iury to be retorned . And upon the hearing of the Cause , the matter given in Evidence was , That the said Tavernor was a Copyholder of the said Lord Cromwell , and that the said Lord , pretending that the said Tavernor had forfeited Copyhold , caused the said Ja. Cromwell to make an Entry in the right of the said Lord upon the said Tavernor , upon which Entry Tavernor brought an Action of Trespass against the said Ja. Cromwell , in which Action the parties were at Issue upon the Forfeiture ; and before any Venire Facias issued , Tavernor hearing that one Steward , who was Bayliff of the Liberty under the Earl of Arundel , and who ought to have made the Pannel , &c. was purposed to have made the said Pannel not duly , viz to have retorned in the same great Gentlemen of the Country , who were Lords of Manors in favour of the said Lord Cromwell ; That he went to the said Roger Townsend , who was then one of the principal Servants and Agents of the said Earl , and shewed unto him , That if those great Persons and Lords of Manors be returned for the trial of the said Issue , peradventure they would not so easily appear for the Expedition of the said Parties as Gentlemen of an Vnder-Condition ; and also many of them being Lords of Manors , and having customary Tenants , and therefore not indifferent to try that Issue ; and prayed his Order to the said Steward for the making of an indifferent Pannel : Vpon which said Conference with the said Steward for the making of an indifferent Pannel , and shewing unto him that in doing and making of the same there was not convenient , nor any equal course to retorn Knights , Esquires , or Lords , but rather such sufficient Persons for the greater Expedition of Iustice , and Indifference of Tryal : And afterwards the said Tavernor exhibited a Petition , shewing all the special matter , and prayed him to give order for the making of an indifferent Pannel for the trial of that Cause ; which Petition was delivered to the Earl by the said Townsend , in the name of the said Tavernor ; upon which the said Earl referred the said Matter , and the ordering of the same to three of his chiefest Agents and Counsellors , viz. Dicksey . Townsend , and Chrell , and delivered to them the Book of the Freeholdry within the said Liberty , who according to their Commission made a Pannel , which was retorned , and the Iury passed with the said James Cromwell in the right of the said Lord : And if that intermedling of Townsend with the Matter , ut supra , &c. especially his conference with the Bayliff , be maintenance or not , was the Question : And by Anderson and Wray it was said for Law , That because the said Townsend was in a manner a Servant to the said Earl , who had the retorn of the Writs , and one of his principal Counsellors and Agents , and hearing ex insinuatione of the said Tavernor the misdemeanour of the Bayliff of his Lord , could not do better than admonish the said Bayliff of his duty , for it concerned the Honour of his Master , and also his Inheritance in the said Liberty : But if the said Townsend had been a meer stranger to the said Earl , so as no such privity had been betwixt them , the same had been clearly Maintenance in Townsend , as it was lately adjudged in that Court in the case of one Gifford , where the parties being at Issue , and a Venire Facias to the Sheriff to retorn a Iury , a stranger wrote to one of the Iurors , who was retorned in the Pannel , praying him to appear at the day , and to do in that cause according to his Conscience , and the same was adjudged Maintenance . And afterwards upon full hearing of the cause , the said Townsend by the Sentence of the Court was acquitted of any Maintenance , with great allowance and approbation of many Lords of the Counsel there present , Bromley Cancellario tantum exclamante .

CCCXXVII . Mich. 15 & 16 Eliz. In the Common Pleas.

IN a Writ of Partition the Defendant prayed in Aid , the Plaintiff counterpleaded the Aid , upon which Issue was joyned , and found for the Plaintiff : It was the Opinion of the Court That it was peremptory for the Defendant . And the Plaintiff shall have the Partition , scil. Quod fiat Partitio , and the reason thereof is for the delay of the Plaintiff , and for the vexation of the Country who are to try it ; otherwise it had been if it had been adjudged against the Defendant upon a Demurrer .

CCCXXVIII . Mich. 21 Eliz. In the Kings Bench.

IN a Formedon of a Manor , the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant averred the Tenant sole Tenant as the Writ supposed , and upon that Issue was joyned , and found for the demandant : Vpon which a Writ of Error was brought ; and Error assigned in this , That whereas upon Ioyntenancy pleaded by Fine , the Writ ought to abate without any Averment by the Demandant against it ; the Averment hath been received against the Law : And by Southcote at the common Law , If the Tenant plead Ioyntenancy by Deed , the Writ should abate without any Averment , but that was remedied by the Statute of 34 E. 1. but Ioyntenancy by Fine doth remain as it was by the common Law ; for he hath punishment enough in that , because by that Plea , if it be false , he hath by way of conclusion given away the Moiety of the Land in demand to him with whom he hath pleaded Ioyntenancy ; and the Law doth not intend that he will so slightly depart with his Land for the abatement of a Writ : Else in a Praecipe quod reddat the Tenant confesseth himself to be Villain to a Stranger , the Writ shall abate , without any Averment of Frank-estate ; for the Law intends that the Tenant will not enthrawl himself without cause . Wray to the same intent : But the Demandant may confess and avoid the Fine , as to say , That he who levied the Fine was his Disseisor upon whom he hath before entred , &c. And if Tenant in Fee-simple be impleaded , and he saith , he is Tenant for life , the Remainder over to A. in Fee , and prayeth in Aid of A. the Demandant shall not take Averment , That the Tenant the day of the Writ brought was seized in Fee. Note , That in this Fine Ioyntenancy was pleaded but for parcel ; and it was holden by ●ray and Southcote , That the whole Writ should abate , as in a Writ against many , the misnosmer of the one shall abate the whole Writ against all the Defendants ; and so where the Demandant enters into parcel of the Land in demand , if the Land in demand be one entire thing , it shall abate the Writ in all . In this Case the Demandant ought to have in his Writ a Foreprise of the Land , parcel of the Land in demand , whereof the Ioynt-tenancy by Fine is pleaded ; for this dismembring of the Manor , and destruction of the Land whereof the Ioyntenancy is pleaded , is peravail and beneath the Gift whereof the Formedon is conceived ; and therefore in respect of the title of the Demandant , it remains in right parcel of the Manor , and therefore it ought to be demanded accordingly with a Foreprise : But if A. gives to B a Manor , except 13 Acres in Tail , there if after upon any Discontinuance the Issue in Tail is to have a Formedon , in such Case there needs not any Foreprise , for the said 10 Acres were never severed from the Manor upon the Gift . But if Land in demand be several as 20 Acres but two , this Foreprise is not good , Vide Temps E. 1. Fitz. Br. 866. Praecipe unam bovat' terrae ; except a Selion , and the Writ was abated , for every demand ought to be certain , but a Selion is a parcel of Land uncertain as to the quantity , in some places it is an Acre , in some more , and in some less . Another point was , That because that the Tenant hath admitted and accepted this Averment , scil. Sole Tenant as the Writ supposeth ; if the Court notwithstanding the admittance of the Tenant ought without exception of the party ex Officio abate the Writ : And Wray conceived that it might , for it is a possitive Law : As if a Woman bring an Appeal of Murder upon the death of her Brother , and the Defendant doth admit it without Challenge or Exception , yet the Court shall abate the Appeal , 10 E. 4. 7. And Vide the principal Case there , Non ideo puniatur Dominus : And if an Action be brought against an Hostler upon the common Custom of the Realm , and in the Writ he is not named ( Common Hostler ) and the Defendant doth accept of such a Writ without any Exception unto it , yet the Court shall abate the Writ ex Officio , Vide 38 H. 6. 30.

CCCXXIX . Mich. 21 Eliz. In the Kings Bench.

NOte this Case : A. makes a Feoffment in Fee to B. and binds himself only to warranty , without more : B. is impleaded , and voucheth A. who enters into the Warranty , and loseth , so as Iudgment is given against B. and also to recover in value against A. who before Execution dyeth : It was the opinion of the Court , that B. should have Execution in value against the Heir of A.

CCCXXX . Mich. 21 Eliz. In the Common Pleas.

A. Seized of Lands in the right of his Wife for the term of the life of the Wife , made a Feoffment in Fee to the use of his said Wife for her life : In that case the wife is remitted , and it is not like Townsends Case , Plowd Com. 111. for in that case the Entry of the Wife was not congeable , for she was Tenant in tail , which Estate was discontinued by the Feoffment of her Husband . Periam Iustice cited Si●enhams case . Baron seized in the right of his Wife for the term of the life of the Wife . They both surrendred , and took back the Land to them and a third person : And it was holden that the Wife was not presently remitted ; but after the death of her Husband she might disagree .

CCCXXXI . Mich. 21 Eliz. In the Common Pleas.

A. B. and C. three Brothers : A. hath issue and dyeth , the middle Brother Purchaseth Land , and deviseth the same to his Son in Tail , and if he die without Issue that the Land shall remain to the King , and Lineage of the Father , sc. of the middle Brother , and if the Son of the eldest Son or the youngest Brother should have the Land , was the Question ; and it was the opinion of the Lord Dyer , That the Son of the eldest Brother should have it .

CCCXXXII . Mich. 21 Eliz. In the Common Pleas.

A Lease for life was made to B the Remainder to C. and D. in Tail : It was holden that in this case C. and D. cannot disagree to that Remainder without matter of Record , for they are Tenants in Common ; but if the Remainder had been limited to them in Fee , so as they took joyntly , it had been otherwise , for then by the disagreement of the one , the other shall take the whole Land .

Mich. 32 Eliz. In the Kings Bench. CCCXXXIII . Waite and Coopers Case .

IN Ejectione firmae between Waite and Cooper : It was found by Verdict , That Cranmer , late Archbishop of Canterbury , was seized of the Manor and Borough of Southwark in the right of his Bishoprick , and that the Prior of Morton was seized of the House in which the Ejectment is supposed , and held the same of the said Archbishop as of his said Manor and Borough , after which , 30 H. 8. the said Archbishop gave to the King the said Manor and Borough , with confirmation of the Dean and Chapter ; and that the same year the said Prior surrendred , by which the said King was seized , as well of the said Manor and Borough , as of the said House , and afterwards the King by his Letters Patents gave the said House , and other Lands in Middlesex and Essex to Curson and Pope in Fee , tenend in Libero Burgagio per fidelitatem tantum , & non in Capite , pro omnibus serviciis & demandis : And afterwards King Edw. 6. gave the said Manor and Borough to the Mayor and Commonalty of London ; Curson and Pope covey the said House to Welsh in Fee , who dyed without Heir : All the Question was , What Tenure is here reserved upon the Words and Grant made by King Hen. 8. to Curson and Pope . It was said , It could not be a Tenure in Burgage , because here is not any Rent reserved , which see by Littleton 162 , 163 , 164. And the Lord Anderson at the first very strongly insisted upon that . Another matter was , because here is reserved for all the Lands and Tenements but one Tenure ; so that if the Court should adjudge the Tenure reserved to be Burgage , then Lands at the Common Law out of Boroughs should be holden in Burgage : Also a Tenure in Burgage cannot be created without these words , ut de Burgagio : And to that purpose Shute Iustice agreed , Vide Br. Tenures 94.

Mich. 29 Eliz. In the Kings Bench. CCCXXXIV . Fullers Case .

NOte , It is holden by the whole Court in Fullers case , That if one give 300 l. to another to have an Annuity of 50 l. assured to him for 100 years , if he , his Wife , and four of his Children so long shall live , That this is not within the Statute of Vsury : So if there had not been any Condition ; but care is to be taken that there be no Communication of borrowing of any Money before .

Trin. 30 Eliz. In the Kings Bench. CCCXXXV . Goore and Winkfields Case .

3 Leon. 223. DEbt upon an Obligation by Goore against Winkfield , the Obligation was written in this Form ; Know all by these Presents , That I H. Winkfield am bound to William Goore in the Sum of , &c. for the payment of which Sum I give full power and authority to the said Goore to keep the said Sum upon the Profits of the Bayliwick of Swinstall from year to year , until the same be paid : To which the Defendant pleaded , That the Plaintiff had levied parcel of the said Sum , &c. and did not shew how much , and therefore the pleading was holden not good . And it was clearly agreed by the whole Court , That the Plaintiff was at Liberty , either to bring his Action upon the said Obligation , or to levy the Debt according to the Clause aforesaid .

Pasc. 26 Eliz. In the Kings Bench. CCCXXXVI . Powley and Siers Case .

POwley brought Debt against Sier Executor of the Will of one A. The Defendant demanded Iudgment of the Writ : For he said , That one B. was Executor of the said A. and that the said B. constituted the said Defendant his Executor , so as the Writ ought to have been brought against the Defendant as Executor of an Executor , and not as immediate Executor of the said A. The Plaintiff replyed , That the said B. before any probate of the Will , or any Administration , dyed , and so maintained his Writ , upon which the Defendant demurred . Wray was for the Writ , for although here be not any Probate of the Will of A. or any other Administration ; yet when B. makes his Will , and the Defendant his Executor , it is an acceptation in Law of the Administration and Execution of the first Will . Gawdy and Ayliff Iustices , that the Writ was not good . Vide 23 Eliz. Dyer 372.

Mich. 19 Eliz. In the Kings Bench. CCCXXXVII . Taylors Case .

TAylor was Outlawed in Debt , where a Supersedeas upon Record was delivered to the Sheriff before the award of the Exigent . It was holden that the Party should avoid the same by Plea : Then it was moved , If the Plea should be pleaded by Attorney , or in Person . To which it was said by the Iustices , That where matter in fact is pleaded in avoiding of an Outlawry , he ought to plead it in Person ; but matter of Record by Attorney . And so Ford Prothonotary said it was agreed in the Case of Sir Thomas Chamberlain , 7 Eliz. and so it ought to be in the principal Case here .

CCCXXXVIII . Mich. 18 Eliz. In the Kings Bench.

NOte , It was agreed for Law in the Kings Bench , if Lessee for years grant all his Estate and Interest to A rendring rent by Indenture , and for default of payment a re-entry . And the Grantor demandeth the rent , and A. demands an Acquittance , but the Lessee for years refuseth ; in such case A. may refuse to pay such rent , for the rent is to be paid in this nature without an Acquittance ; but contrary if Lessee for years had leased parcel of his Estate , rendring Rent with Clause of Re-entry , &c.

CCCXXXIX . Mich. 18 Eliz. In the Kings Bench.

THe King seized of a Manor to which an Advowson is appendant , a Stranger presented , and his Clerk in by 6 Months : It was holden , that in such case the Grantee may present , for the Advowson was always appendant , and the Inheritance thereof passed to the Grantee for it was not made disappendant by the usurpation , as in the case of a common person ; for the King cannot be put out of possession . But the Patentee shall not have Quare Impedit of the first disturbance , for that presentment did not pass to him , being a thing in Action without mention thereof in his Grant. And if the Patentee brings a Quare Impedit of a second avoidance , he shall make his presentment by the presentment of the King , not making mention of the Vsurpation : Yet if a Bishop present for Lops in the case of a common person , he ought to make mention of it ; for that is a title to the Patron .

CCCXL . Trin. 28 Eliz. In the Kings Bench adjudged .

NOte , In the Case of one Manning it was adjudged . That where an Infant Executor sold the Goods of his Testator for a lesser price than they were worth , and afterwards brought an Action of Detinue against the Vendee , upon that Detinue in retardatione executionis Testamenti , that the said Sale was good , and should bind the Executor notwithstanding his Nonage .

28 Eliz. In the Chancery . CCCXLI . The Lord Awdleys Case .

THe Lord Awdley , 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerset , and afterwards by Indenture reciting the said Feoffment , and the date of it ; and also that it was to the intent that his Feoffees should perform his Will as followeth in effect , viz. My Will is , That my said Feoffees shall stand seized to the use , that the said Hoddy shall receive of the profits of the Lands 100 l. which he had sent to the said Lord Awdley ; and also stand seized to pay all his debts upon Bills signed with his hand ; and after the debts paid , that the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Jone his Wife , and to the Heirs of their two Bodies , with divers Remainders over . The said Lord had Issue by the said Jone , and also had Issue by a former Wife a daughter , the Feoffees never made any Estate to the said Lord and his Wife : And by the Opinion of divers Iustices and Sages of the Laws , that upon that matter no use was changed ; for it is not any last Will , but an Intent . And although that the Feoffees shall be seized to the use of the Feoffor and his Heirs , because that no consideration was , by which they should be seized to their own uses , yet the same cannot make any Vse unto the said Lord and his Wife in tail without containing an Estate , for the Wife is a Stranger to the Land : And also it cannot be a Will , for the Estate mentioned in the said writing , ought to have been made to the said Lord and his Wife , who cannot take the same by his Will . This matter depended in the Chancery : And the advice of the Iustices being there required , they delivered their Opinions , That by the said Writing no Vse was changed nor any Estate vested in the said Lord and his Wife : And a Decree was there made accordingly , until proof be made that such an Estate was made .

CCCXLII . Mich. 26 Eliz. In the Kings Bench.

THe Case was in the Kings Bench , in Debt : It was found by Special Verdict , That the Testator , being possessed of divers Goods in London , where he dyed ; and also at the time of his death , the Queen being indebted unto him in the Sum of 4 l. 10 s. she then residing at Whitehall ; the Archbishop as Metropolitan , granted licence of Administration to the Queen ; and the Bishop of London afterwards granted licence of Administration to J.S. The Court sent to the Civilians to appear in Court , and to deliver their Opinions in this case . And thereupon Lloyd , Doctor of Law , appeared and argued to this effect , viz. That in ancient times in such cases , the several Ordinaries committed several Administrations for the Goods in their Diocess respecive : In which case , the mischief was very great , for the Creditor was driven to bring several Actions of the Administrators of the several Ordinaries : Vide H. 7. 13 R. 2. Administrators 21. But afterwards upon a Decree , upon a Composition in such cases , the Metropolitan committed the Administration : He further argued , That debts cannot be said Bona Notabilia , for they cannot be said within or without any County or Diocess , and are things transitory , and therefore called aes alienum : And he said , That the Administration granted by the Archbishop was void , for as Archbishop he had not to intermeddle within the Diocess of another , but as Legatus Papae : And in the time of Hen. 2. Becket Archbishop of Canterbury was stiled Legatus Natus , but now that power Legantine is determined , and therefore the authority to commit Licences of Administration in another Diocess , but in case of Bona Notabilia is determined : And he said , That by the Civil Law , Jones Rep. 225. if a man deviseth all his Goods in such a County , by that debts do not pass ; and yet by especial words a man may devise his debts . Awbrey Doctor argued to the contrary ; and he confessed that in ancient times every Ordinary in such cases committed licences of Administration : But he denied that the Prerogative which is now practised in such cases by the Metropolitan was given upon any Composition , but that it began by Prescription : If a man in his Iourney dyed in another Diocess , notwithstanding that he had out with him but his necessary and ordinary Apparel , in such case the Metropolitan committed the Administration ; and he said , That as he conceived , debts are Bona Notabilia , & secundum fictionem Legis , they are local and he said , to make Bona Notabilia it is sufficient if the Intestate have 3 l. in one Diocess , and 2 l. in another Diocess : But he said , That posito , that Bona Notabilia are not in the case ; yet the Administration granted by the Metropolitan is not void until it be revoked : For although that the Metropolitan on the right of his Bishoprick , hath not to intermeddle in another Diocess ; yet in this case , because the Archbishop of Canterbury is a Patriarch : ( For in Christendom there are four great Patriarchs , and eight lesser Patriarchs , whereof the Archbishop of Canterbury is one , ) and by reason thereof , he hath general Iurisdiction through all England , Ireland , &c. But now by the Statute , his Authority is restrained . For he cannot cite any other out of other Diocess by any Process : But notwithstanding , he may do many great Acts by himself , or his Chancellor in every Diocess ; and he argued very much upon the Prerogative of the Archbishop of Canterbury . The Iustices did not then deliver any Opinion in this case . Quaere , If Letters of Administration of the Goods of a common person be committed to the Queen , if good . The case was adjourned . Vide Cook 5 part , Ucre and Jeffreys Case , and Cook 8 part , in Sir John Needhams Case for the Resolution of this Case .

CCCXLIII . Pasc. 17 Eliz. In the Common Pleas.

A Man made a Lease for life , and afterwards made a Lease to another for years . The Ordinary committed Licences of Administration to A. the Tenant for life , and A. joyned in the purchase of the Fee-simple of the Land demised . It was holden by the Iustices , that the Fee was executed for a Moiety ; for the Remainder for years was not any impediment unto the Execution thereof . Manwood conceived that the Term was not extinct ; for it is not properly a term , but as an interest of a term , which cannot be surrendred . Mounson , He hath the term in auter Droit , viz. as Administrator , therefore it cannot be extinct . Dyer , If an Executor hath a term , and purchaseth the Fee-simple , the term is determined . A Woman , Tenant for years , taketh a Husband , who purchaseth the Fee , the term there is extinct . Manwood , True there , for the Husband doth an act which destroyeth the term , viz the purchase : But if a Woman , being a termor , marrieth with him in the reversion , the term continueth ; for here is no act of the husband , but the act of the Law. Dyer was of Opinion , That the Tenant for life , and the Administrator should be Tenants in Common of the Fee. The Case was adjourned .

CCCXLIV . Mich. 20 Eliz. In the Common Pleas.

THe Case was , The Husband is seized in the right of his Wife , of certain customary Lands in Fee. He and his Wife by Licence of the Lord makes a Lease for years by Indenture rendring rent , have Issue two Daughters , the Husband dyeth , the Wife takes another Husband , and they have Issue a Son and a Daughter , the Husband and Wife dye , the Son is admitted to the reversion , and dyes without Issue : And by Manwood , the said reversion shall descend to all the Daughters , notwithstanding the half blood ; for the Estate for years , which is by Indenture , by licence of the Lord , is a Demise or Lease according to the order of the Common Law and according to the nature of the Demise , the possession shall be adjudged , which possession cannot be said the possession of the Copyholder , for his possession is customary , and the other is contrary ; and therefore the possession of the one , shall not be the possession of the other , and so no Possessio Fratris in this case : But if there had been a Guardian by the custom , or this Lease had been made by surrender , then the Sister of the half blood should not inherit : And by Mead , the case of the Guardian hath been so adjudged . Mounson to the same intent . And if a Copyhold descend to the Son , he is not a Copyholder before admittance , but he may take the profits of the Lands , and punish a Trespasser .

CCCXLV. Mich. 15 Eliz. In the Common Pleas.

THe Case was , A man seized of Lands in Fee , devised that his Wife should take the profits of his Lands until Mary his Daughter and Heir should come to the age of 16 years , and if the said Mary shall dye , that J. S. should be his Heir . Manwood , The Daughter , after she hath attained the age of 16 years , shall have the Land in tail ; for Devises ought to be construed according to the intent of the Devisor , as near as it may be collected , but no intent shall be taken against all reason and certainty . It is certain that the Daughter shall not have the Fee-simple , for the same should have descended to her without any Devise ; and these words ( if she dyed ) cannot be intended a Condition , for it is certain that she shall dye : But if the words had been , before the age of 16 years , That after her death J. S. should be his Heir , in such case it had been a Condition . And when it is said , That J. S. should be his Heir , it shall be intended his Collateral Heir , so as the Estate tail remains in the Daughter . Mounson and Harper contrary . And that she should have but for life : And by Mounson , if J. S. had been a Stranger to the Devisee , she should take nothing . And this case was put by Barham , Serjeant , A man devised 100 l. to his youngest daughter , 100 l. to his middle daughter , and 100 l. to his eldest daugher , and that all these Sums should be levied out of the profits of his Lands : And it was the better Opinion of the Court , that the youngest daughter should be first paid , and then the middle , and then the eldest daughter , and that was one Coniers Case .

Mich. 16 Eliz. In the Common Pleas. CCCXLVI . The Archbishop of Yorks Case .

3 Leon. 159. THe Case was , The King granted to the Archbishop of York the Toll of Corn sold in the Market of Rippon ; and afterwards the King granted to the Mayor and Citizens of York to be discharged of Toll through the whole Realm ; and afterward the Archbishop exchanged his Manor of Rippon with the King for another Manor : It was moved if now the Citizens of York should be discharged of Toll , for the Grant to the Archbishop was eigne to the Grant to the Citizens of York , to be discharged of Toll in Rippon . Dyer conceived that they should not be discharged , for the King had no right ; and when the King grants over the Manor of Rippon , the Grantee shall have the Toll notwithstanding the Grant made to the Citizens , for the Grant made to them was void , as to discharge them of Toll at Rippon ; for the Grant to the Citizens shall not take effect after the Exchange , for the Grant was void ab initio : But if the Grant of the King to the Archbishop had been but for life , then the Grant afterwards made to the Citizens should have taken effect after the Estate for life determined : And the better Opinion of the Court was , that Toll should be paid .

Mich. 29 Eliz. In the Exchequer . CCCXLVII . The Bishop of Londons Case .

THe Case was , The King Lord , Mesne and Tenant , the Mesnalty is holden in Chief , and the Tenancy by Service , the Mesnalty Escheats by Attainder , now if the Tenancy shall be holden in Chief . Manwood , It hath been holden , that no Tenure in Capite may be , if not by the making of the King : And he said , That if before the Statute of West . 3. the Tenant of the King had made a Feoffment to hold of him , so that now there is Lord , Mesne , and Tenant , and afterwards the Mesnalty comes to the King by Attainder , and if by the said Mesnalty to the Crown , the Seigniory paramount be extinct , then the Tenancy is not holden in Chief ; but if the Mesnalty be drowned in the Seignory , it is otherwise . Some held , That there was a difference where the Mesnalty comes to the Seigniory , and where the Seigniory comes to the Mesnalty . Quaere .

Trin. 26 Eliz. In the Kings Bench. CCCXLVIII . Burgess and Fosters Case .

IN Ejectione firmae the Case was , That the Dean and Chapter of Ely were seized of the Manor of Sutton , whereof the place &c. is parcel demised and dimisable by Copy according to the custom : And that the said Dean and Chapter by their Deed granted the Stewardship of the said Manor to one Adams , to execute the said Office per se vel legitimum suum deputat' eis acceptabilem : After which the said Adams made a Letter of Deputation to one Mariot ad Capiend' unam sursam redditionem of one John Whettesley and Ann his Wife , & examinand' Ann' praedict. ea intentione , That the said John and Ann should take back an Estate thereof for their lives , the Remainder to one John Buck in Fee. ( Note the Surrender ought to be de duobus Messuagiis ) Mariot , Two several Surrenders of the said Husband and Wife of the said two Messuages , and took an Estate for their lives , the Remainder over to the said John Buck in Fee , upon condition to pay certain Moneys , &c. It was moved , That the Surrender is void , and without warrant ; for the Warrant was ad Capiend' unam sursam redditionem , and here are two several Surrenders , and so the Warrant is not pursued and then the Surrender is void . Another matter was , because the Remainder to John Buck by the words of the Letter of Deputation should be absolute , and without condition , and now in the Execution of it is conditional , so as the conditional Estate is not warranted by the Deputation . But the Court was clear of Opinion to the contrary in both the points , That the proceedings here are sufficient , and well warranted by the Deputation . Another matter was objected , because the Surrender and Regrant is entred into the Roll of a Court dated to be holden 2 Maij , and the Letter of Deputation bears date the 3 of June after ; but as to that the Court was clear , That the Mis-entry of the Date of the Court should not prejudice the party , for that Entry is not any matter of Record , but only an Escroll ; and if the parties had been at Issue upon the time of the Surrender made , or of the Court holden , the same should not be tryed by the Rolls of the Manor , but by the Country : And the party shall give in Evidence to the truth of the matter , and shall not be bound by the Rolls ; and according to this Resolution Iudgment was given .

Trin. 31 Eliz. In the Common Pleas. CCCXLIX . Long and Hemmings Case .

GIles Long brought a Quare Impedit against the Bishop of Gloucester , Hemmings and Hadnell , Hemmings pleaded , That one Tho. Long seized of the Manor of F. to which the Advowson was appendant , by his Deed granted the Advowson unto him 17 Eliz. The Incumbent pleaded the same Plea ; to which the Plaintiff Replicando said , That before the said Grant , viz. 6 Eliz. the said Tho. Long granted to him the said Manor , &c. and upon Issue joyned , the Iury found this Special Matter , That the said Feoffment was by word , and Livery and Seisin was made ; and afterwards the said Tho. Long granted the said Advowson to the Defendant ; and afterwards Attornment was had ; and if without Attornment the Advowson passed with the Manor , was the Question . Shuttleworth argued , That the Advowson passed as appendant to the Demesns , for an Advowson shall be more properly appendant to the Demesns than to the Services , for the Services may be determined many ways , so cannot the Demesns ; for if the Services be determined by Escheat , &c. yet the Advowson remains appendant to the Demesns , and an Advowson may be appendant to an acre parcel of the Manor , but not to the Services ; and so an Advowson may well pass without Deed , as upon a Feoffment of a Manor the Services pass without Deed. And if a man seized of a Manor with an advowson appendant , makes a Feoffment of one acre parcel thereof , with the advowson , the advowson is appendant to that acre , 33 H. 6. 5. although it be not by Deed. Vide contra Temps E. 1. Faits & Feoffments 115. 17 E 3. 4. It ought to be by Deed , 43 E. 3. 24. Walmsley argued to the contrary . The Verdict is , That Tho. Long give not the Manor but the Capital Messuage of F. and all other Lands and Tenements of the same , which words ( of the same ) have relation to the Messuage , and therefore neither the Manor of F. nor the advowson pass : and admit that all the Demesns pass , yet the advowson cannot pass as appendant , for that advowson shall pass as appendant to the whole Manor , and not to such , or such part of it . And by Littleton , 7 E. 4. 27. if a man holds of me three acres by 12 d. and I grant the Services of the third acre , the same is void ; so here , there is no advowson appendant to the Demesns : And he said , That in this case the advowson is appendant to the Services ; and although Services are Inheritances incorporeal , yet an advowson may be appendant to them , as one Office may be appendant to another Office , and one advowson to another advowson , 33 H. 8. Dyer 48. A Man seized of a Manor , to which an Advowson is appendant , enfeoffeth one by Deed of one acre , parcel thereof ; and also by the same Deed grants the Advowson the Advowson shall pass as in gross , for they are several Grants although but one Deed. Another matter was , That Thomas Long enfeoffed and here the Iury have found , that Thomas Long gave in tail , &c. And he conceived that the Plaintiff upon that Verdict should have Iudgment : As in Waste , the Plaintiff assigns the Waste in cutting down of 20 Oaks , and upon Not Guilty , It was found that he cut down but 10 , the Plaintiff shall have Iudgment upon that Verdict . The Case was adjourned .

CCCL . Trin. 19 Eliz. In the Kings Bench.

THe case was , Lessee for life of another bargains and sells by Deed indented and enrolled , and afterwards levies a Fine to the Conusee , Sur Conusans de droit come ceo , &c It was holden by the whole Court , That it was a forfeiture of his Estate ; for when the Bargainee , being now Tenant for the life of another , accepts a Fine of a Stranger sur Conusans de droit , &c. that he admit the Fee in him by matter of Record , otherwise it is of a Fine sur Release . And by Manwood , If Lessee for life be disseised and levies a Fine to the Disseisor , sur Conusans de droit , &c the Lessor shall re-enter . Quod Dyer negavit , Because that the Lessor at the time of the Fine levied , had not any thing in the Reversion , but only a Right . Manwood put this Case , Land is given to A. and B. and to the Heirs of B. they are disseized by two , A releaseth to one of the Disseisors , now they are Ioyntenants but for a moiety , and the Estate in the other moiety is changed into an Estate for life .

Trin. 31 Eliz. In the Common Pleas. CCCLI . The Queen and the Bishop of Norwich's Case .

IN a Quare Impedit , the case was , That the title to present to the Church was devolved to the Queen by Lapse ; The Patron himself presented , and his Clerk was inducted , and afterwards deprived . It was the Opinion of the whole Court , That if the Deprivation was without any covin , that the title of the Queen by Lapse was gone .

Trin. 29 Eliz. In the Common Pleas. CCCLII. Ashpool and the Inhabitants of Everinghams Case .

IN an Action upon the Statute of Winchester of Huy and Cry , by Ashpool against the Inhabitants of the Hundred of Everingham : It was argued by Serjeant Shuttleworth for the Hundred , and he insisted upon this , That the Robbery for which the Suit was brought , was committed in the night : and Vide Stamford 33 & 38. If a man be robbed in the day , and the Chief escape , and be not taken , the Town or Hundred shall answer for it : as if he should have said , If the Robbery was not done in the day , the Town or Hundred should not answer for it : and by 11 H. 7 5. the Lord cannot distrain in the Night for Rent arrear , for the Tenant is not bound to tender his rent in the night time . And although there are no express words in the Statute of Winchester , that Huy and Cry shall be made by the party robbed , yet in reason it is to be presumed that the same was intended by the Statute . Vide that by these words in the Statute it may be implyed , viz. That no pain as yet hath been appointed for their Concealments and Lachess , which ( Lachess ) imports , That none ought to be charged in such case , but here there was a defalt , and no defalt can be where there was not notice , and all the course is , Hutesiam & clamorem fecit , & notitiam inhabitantibus dedit ; and also this word ( Concealment ) amounts to as much , for none can be said to conceal that whereof he had no notice . And vide Stamford 35 , 36. if the Felon escape the Hundred shall answer to the party robbed , who hath made Huy and Cry : But the whole Court was clear , that Huy and Cry , or Notice to the Inhabitants , was not requisite by the Statute ; for as it was said by the Lord Anderson , it might be that the party robbed was bound , so as he could not give notice , or make Huy and Cry , or it may be he was killed by the Thieves ; and b. 28 E. 3. 11. Fresh suit is to be made from Town to Town , and from Country to Country , and that Fresh suit is to be made by the Inhabitants of the Hundred , and not by the party robbed , for no mention is made of such Fresh suit : And that will more clearly appear , if we take to the Common Law before the Statute of Winchester ; for before the said Statute , the Law was , That every Town and City should be guarded by the Inhabitants , &c. so that if any suspected persons did resort to such Town or City , he should be stayed until the next Sessions ; in which Case he should have deliverance according as he could acquit himself : And if any Town or City failed therein , and then a Robbery had been done , the County should answer for it ; for at their own peril they were bound to guard the Country : But there was some difference betwixt Robberies committed in the day time , and Robberies done in the night , which see 3 E. 3. so Corone 293. Where a man killed another in the day , and the Felon was not taken , but escaped in the night , and the Town was amerced for the same , because there the Adventurers came in the day time , and the Felon was not taken . And as to that which is found by the Verd●ct , That the Robbery was done post occasum solis , & per lucem diurnam , the Opinion of all the Iustices was , That with such a Robbery the Hundred should be charged , for that at such time of the day Travellers are commonly drawing to their Lodgings . And afterwards Iudgment was given for the Plaintiff .

Pasc. 29 Eliz. In the Kings Bench. CCCLIII . Neals Case .

IN a false Imprisonment by Neal against the Mayor , Sheriffs , and Commonalty of the City of Norwich : The Writ was directed to the Coroners of the said City : and Exception was taken to the Writ , because it was not directed to the Sheriff of the same City , but to the Coroners : But the Exception was disallowed by the Court , for the Sheriff was part of the Corporation . And also it hath been adjudged , That a Sheriff cannot summon himself : The Writ was holden good .

CCCLIV.

JOhn Grendon brought Trespass for breaking of his Close against Thomas Albany : and upon the pleading , the Case was , That Francis Bunney was seized , and 1 Maij 20 Eliz. by Deed indented enfeoffed M. H. to the use of the said Francis Bunney for the term of his life , the remainder to D. in tail , the remainder to E. in tail , the remainder over to F. in Fee : In which Deed of Feoffment there was a Proviso , That if it should happen one P. P. to dye without Issue Male of his Body , that then it should be lawful for the said Francis Bunney at all times , during his life , by his Deed indented , to be sealed and delivered in the presence of three credible Witnesses , to alter , change , diminish or amplifie any Vse or Vses limited by the said Deed or any Vse or Vses thereof to any person or persons , and to limit after the death of the said Francis to begin : After which the said Francis Bunney 1 Aprilis , 23 Eliz. by his Deed indented , did renounce , relinquish , and surrender to the said M. H. D. E. & F. all such liberty , power , and authority of revocation , which he had after the death of the said P. P. without Issue , &c. and further did remise , release , and quit-claim to them the said Condition , Promise , Covenant , and Agreement aforesaid and all his said Power , Liberty , and Authority , and further granted to them and their Heirs , that at all times then after , the said power , liberty , and authority should cease , and to all intents and purposes should be void . After which P. P. dyed without Issue , Note that in this Case Francis Bunney being but Tenant for life , enfeoffed one T. upon whom the said D. entred for a Forfeiture , 1 Maij 23 Eliz. after which 20 Maij 24 Eliz. the said Francis Bunney by Indenture between him and the said D. sealed and delivered as abovesaid , altered the former Vses , and covenanted and agreed with the said D. that from thenceforth the said M. H. and his Heirs should be seized to the use of the Plaintiff and his Heirs . It was argued by Altham . That by that Feoffment made by the said Francis Bunney to the said F. the liberty and power aforesaid was not extinct or lost , for the liberty and power was not then a thing in esse , because then P. P. was alive ; and also the liberty is collateral to the Land whereof the Feoffment is made . 39 H. 6. 43. The Son and Heir apparent disseiseth his Father , and hereof enfeoffeth a Stranger , the Father dyeth , now against his own Livery the Son doth not enter ; but if the Father dyeth , then the Son shall enter ; which proveth that the Livery is not so violent as to destroy a future Right , but that afterwards it may be well revived à fortiori , in our case where the thing pretended to be extinct is meerly collateral . 34 E. 3. Fitz. Garr . 69. In Assize of Common , the Release of the Father with Warranty of the Land , is no bar because it is of another thing . 15 H. 7. 11. Cestuy que Use declares by his Will , That his Feoffees shall sell his Lands , and dyeth , the Feoffees make a Feoffment to the same use , yet they may sell , so as against their Livery , the Authority to sell remains to them . And he cited Brents case , Dyer 340. where a future Vse is limited to his Wife that shall be , shall not be prevented by a Fine or Feoffment . And vide the Statute of Fraudulent Conveyances 27 Eliz. where a Conveyance is made with Clause of Revocation if afterwards the party makes such a Conveyance , bargain , sell , or grant the said Lands for money or other good consideration paid or given , ( the first Conveyance not being revoked ) that then such former Conveyance against the last Purchasors , shall be void . Another matter was , admitting that the said Power and Liberty be not extinct by the said Feoffment , If by the said Indenture or Renunciation , Relinquishment , Release , &c. it be destroyed : And he said , that a thing in esse could not be released . Litt. 105. & 4 H. 7. 10. A Lease for years to begin at a day to come cannot be released before that it come in esse . 11 H. 6. 29. Br. Damages 138. In Detinue , The Defendant would have confessed the Action , if the Plaintiff would have released the Damages , and the Plaintiff would have so done , but could not before Iudgment ; for before Iudgment the Plaintiff had not interest in the damages , but he was intituled to them by the Iudgment ; so Lands in ancient Demesne are recovered at the Common Law , and Execution had accordingly , and afterwards the Lord reverseth the Iudgment , the Tenant notwithstanding that Release may enter , for his title which accrued to him by the reversal , was not in esse at the time of the Release . And it was adjudged 23 Eliz. that where Lessee for years devised his term to his Wife , if she should so long live , and if she dyed within the said term , that then the residue of his term should go unto his daughter , who then should be unpreferred , and dyed , the daughter released to her mother all her right in the said Land , the mother dyed within the term , That that Release did not bind the daughter , for that at the time of the Release she had not any title . Cook contrary : And he said . That by the Feoffment the said power and title was extinct ; and he well agreed the case cited before of 15 H. 7. for in such case the Vendee of the Feoffees shall be in by the Devise , and not by the Feoffees . 9 H. 7.1 . The husband makes a discontinuance of the Land of his wife , and takes back an Estate to him and his wife , by which his wife is remitted , they have Issue , the wife dyeth , the husband shall not be Tenant by the Courtesie , for he hath extinguished his future right by the Livery . 12 Ass. ultimo . A Praecipe brought against A. who loseth the Land by erronious Iudgment , and after Execution had , enters upon the demandant , and makes a Feoffment , his Writ of Error is gone . 38 E. 3.16 . In a Scire Facias to execute a Fine , the Plaintiff recovers , and makes a Feoffment in Fee , and afterwards the Tenant in the Scire Facias by Writ of Error , reverseth the Iudgment in the Scire Facias , Now the Plaintiff in the Scire Facias shall not have a new Scire Facias . 34 H. 6.44 . A Recovery against B. by false Oath and after Execution had , B. enters , and makes a Feoffment to a Stranger , who enfeoffs him who recovers , it is a good bar in an Attaint . 27 H. 8.29 . The Feoffees to an Vse are disseised , the Disseisor enfeoffeth Cestuy que Use , who enfeoffs a Stranger now by that Feoffment his right to the Vse is extinct : And as to the Release , the same is not properly a Release , but rather a Defeasance to determine the power and authority aforesaid , as if A. enfeoffeth B. with warranty , and afterwards B. covenants with A , that the said Warranty shall be void , that Covenant shall enure , to defeat and determin the Warranty : And afterwards in the principal Case , Iudgment was given against the Plaintiff . See more of this Case in Cook 1. part .

Trin. 29 Eliz. In the Kings Bench. CCCLV. Owen and Morgans Case .

Ante 26. & 93. GEorge Owen brought a Scire Facias against Morgan , to have Execution of a Fine levied 8 Eliz. by which Fine the Land was given to the Conusee and his Heirs , and the Conusee rendred the same to Husband and Wife , ( Note that the Husband was the Conusor , ) the remainder in Fee to the now demandant ; ( and Note that the Writ of Covenant was between the Conusee Plaintiff , and the Husband Deforceant , without naming of the Wife ) and afterwards , the Husband suffered a common Recovery , without naming of the Wife : The Husband and Wife dyes without Issue , and now Owen , to whom the remainder in Fee was limited by the Fine , brought the Scire Facias , in bar of which the Recovery was pleaded : It was argued by Serjeant Shuttleworth , That the Recovery had against the Husband only , was a good bar , and should bind the remainder ; and he said , That the Wife ought not to be named in , or party to the Recovery for nothing accrued to her by the Fine , because she was not party to the Writ of Covenant , nor party to the Conusance and none can take by the render , who was not party to the Writ of Covenant , and to the Conusance . Vide 30 H. 8. Fines 108. None can take the first Estate by the Fine , but those who are named in the Writ of Covenant , &c. but every Stranger may take by Remainder . Vide 3 E. 3. Er. Fines 114. 6 E. 2. Fines 117. 7 E. 3. Scire Facias 136. It is said by Horton , If such a Fine is accepted , it is good . The Case was adjourned .

CCCLVI.

A. Seized of a Manor , to which two parts of the Advowson were appendant presents , and afterwards aliens the Manor with the appurtenances the Alienee presents , and purchaseth the third part of the Advowson , and presents again one A. who was Chaplain to the Duke of Rutland , and had a Dispensation from the Pope 1 Eliz. before the Statute was repealed , and was instituted and inducted , and afterwards accepted of a plurality , viz. another Benefice , and dyed 11 Eliz. The Queen presented for Lapse , and her Clerk was instituted and inducted ; The said Lord of the Manor dyed seized inter alia , and that Manor was allotted to the Wife of D. for her part ; and he brought a Quare Impedit , It was moved if D. should not joyn in the Quare Impedit with him who had the third part , and by Walmsley he is not to joyn in it . 22 E. 4. by Brian , If an Advowson descends to four Coparceners , and they make partition to present by turns , and the third doth present when the second ought , for that time the presentment is gone , but when it comes to his turn again , he shall present ; which proves that they are as several Tenants , and therefore ought not to joyn , &c. It was Adjourned .

Temps Roign Eliz. In the Kings Bench. CCCLVII . The President of Corpus Christi Colledge Case .

NOte , It was holden by Cholmley Serjeant , Plowden , and many others , in the Case of the President of Corpus Christi Colledge in Oxford , That if the said Master or President of any such Colledge , by his Will deviseth any Land to his Colledge , and dyeth , such Devise is void : For at the time when the Devise should take effect , the Colledge is without a Head , and so not capable of such Devise ; for it was then an imperfect Body : And so it was holden by the Iustices upon good advice taken thereof .

CCCLVIII . Temps Roign Eliz In the Kings Bench.

IN a Warrantia Chartae , the Defendant said that the Plaintiff had not any thing in parcel of the Land the day of the Writ brought : If in a Praecipe quod reddat the Tenant aliens , and afterwards vouches , the Vouchee is not bound to enter into the Warranty : But here in this Case it may be , That at the time that the Plaintiff requested the Defendant to warrant he was Tenant of the Land , in which Case the warranty is attached , and then if ever the Land be recovered against him , he shall have this Writ ; and of this Opinion was Brown Iustice : For the Land which the Defendant had at the time of the request , is bound by the request , but if he alieneth after the request , he shall not have the Warranty .

CCCLIX . Mich. 9 Eliz. In the Kings Bench.

A Man seized of a Manor , in which there are divers Copy-holds , and the Custom there is , That if any Copyholder leaseth his Land above the term of one year , that he shall forfeit his Copyhold . A Copyholder committed such a Forfeiture , and afterwards the Lord leased the Manor for years , and the Lessee entred for the Forfeiture ; and Weston said that his Entry was not lawful ; for although that the Heir may enter for a Condition broken in the time of his Ancestor , because he is privy in blood ; yet the Lessee or Feoffee cannot do so , for he is a Stranger , such a one of whom an Estranger shall not take advantage . Dyer , If this forfeiture be preserved by Homage , and enrolled in the Court Rolls , the Lessee may well afterwards enter ; for by the forfeiture the Copyhold Estate is void and determined , as if a Leafe for years be made , rendring Rent upon Condition to cease if the Rent be not paid , here presently , by the not payment , the Interest of the term is determined , and of that the Grantee of the Reversion shall have advantage .

CCCLX . Mich. 10 Eliz. In the Common Pleas.

AN Action upon the Case was brought for stopping of a way : The Plaintiff declared that the Duke of Suffolk was seized of a House in D. and let the same to the Plaintiff for life , and that the said Duke , and all those whose Estate , &c. have used time out of mind , &c. to have a way over the Land of the Defendant to the Park of D. to carry and recarry Wood necessary for the said House , from the said Park to the same House ; and further declared , That the Defendant Obstupavit the way . It was moved by Carus , That upon that matter no Action upon the Case lay , because the Freehold of the House is in the Plaintiff , and also the Freehold of the Land , over which , &c. is in the Defendant : But if the Plaintiff , or the Defendant , had but an Estate for years , then an Action upon the Case would lye , and not an Assize , and it is not material , If the Plaintiff had but an Estate for years in the Park quod fuit concessum per totam Curiam : It was also holden . That this word Obstupavit is sufficient without any more , without shewing any special matter of the stopping , as the erecting of any Gate , Hedge , Ditch , &c. for Obstupavit implyes a Nusance continued , and not a personal disturbance , as forestalling , or saying to the Plaintiff upon the Land where , &c. that he should not go over , or use the said way , for in such case , upon such a disturbance , an Action upon the Case lyeth : But as to a local and real disturbance , the word Obstupavit amounts to Obstruxit : and although in the Declaration is set down the day and year of the stopping , yet it shall not be intended that it continued but the same day ; for the words of the Declaration are further , By which he was disturbed of his way , and yet is , and so the continuance of the disturbance is alledged , and of that Opinion was the whole Court. Leonard Prothonotary , He hath declared of a Prescription , habere viam tam pedestrem , quam equestrem , pro omnibus & omnimodis Carriagiis , and upon that Prescription he cannot have a Cart-way , for every Prescription est stricti juris . Dyer , That is well observed , and I confess that the Law is so ; and therefore it is good to prescribe habere viam pro omnibus Carriagiis , without speaking either of a Horse , or a Foot-way .

CCCLXI.

A. Enfeoffed B. to the intent that B. should convey the said Land to such person as A. should sell it . A. sold it to C. to whom B. refused to convey the Land ; and thereupon he brought an Action upon the Case against B. And by Wray Chief Iustice , and Gawdy Iustice , here is a good consideration , for here is a trust , and that which is a good consideration in the Chancery , is in this case sufficient . Shute Iustice was of a contrary Opinion . And afterwards Iudgment was given for the Plaintiff .

Mich. 29 Eliz. In the Common Pleas. CCCLXII . Sir Richard Lewknors Case .

SIr Richard Lewknor seized of Wallingford Park , Ante 162. made a lease thereof for years , and dyed ; the Lessee granted over his term to another , excepting the Wood ; the term expired , and an Action of Waste was brought against the second Lessee by the Coparceners , and the Husband of the third Coparcener , being Tenant by the Courtesie . Shuttlewood and Snag Serjeants , did argue , That the Action would not lye in the form it was brought ; and the first Exception which was taken by them was , because the Action was general , viz. Quod fecit vastum in terris , quas Sir Roger Lewknor , pater praedict' of the Plaintiff cujus haeredes ipsae sunt praefat' Defendent . demisit ; And the Count was , that the Reversion was entailed by Parliament unto the Heirs of the Body of Sir Richard Lewknor , and so they conceived that the Writ ought to have been special , cujus haeredes de Corpore , ipsae sunt : For they said , that although there is not any such Writ in the Register , yet in novo Casu , novum est apponendum remedium : And therefore they compared the Case to the Case in Fitz. N. B. 57. viz. If Land be given to Husband and Wife , and to the Heirs of the Body of the Wife , and the Wife hath Issue and dyeth , and the Husband committeth waste , the Writ in that case , and the like , shall be special , and shall make special recital of the Estate . And so is the Case 26 H. 8. 6. where Cestuy que use makes a lease , and the Lessee commits waste ; there the Action was brought by the Feoffees , containing the special matter , and it was good , although there was not any such Writ in the Register cujus haeredes de Corpore , and we are not to devise a new form in such case , but it is sufficient to shew the special matter to the Court. And the words of the Writ are true , for they are Heirs to Sir Roger Lewknor ; and the Count is sufficient , pursuant and agreeing to their Writ ; for they are Heirs , although they are not special Heirs of the Body , and so the Court was of Opinion , that the Writ was good notwithstanding that Exception . And Anderson and Periam Iustices , said . That the Case is not to be compared to the Case in Fitz. Nat. Brevium 57. for there he cannot shew by whose demise the Tenant holdeth if he doth not shew the special Conveyance , viz that the Land was given to the Husband and Wife and to the Heirs of the Body of the Wife . Nor is it like to the Case of 26 H. 8. for the same cause . For always the demise of the Tenant ought to be specially shewed , and certainly which it cannot be in these two Cases , but by the disclosing of the title also to the reversion . Another Exception was taken , because that the Writ doth suppose Quod tenuerunt , which , as they conceived , is to be meant , that tenuerunt joyntly , whereas in truth they were Tenants in Common . Walmsley contrary , because there is not any other form of Writ , for there is not any Writ which doth contain two tenuerunts and the words of the Writ are true , quod tenuerunt , although tenuerunt in Common ; but although they were not true , yet because there is no other form of Writ , it is good enough : as Littleton , If a Lease be made for half a year , and the Lessee doth Waste , yet the Writ shall suppose Quod tenuit ad terminum annorum , and the Count shall be special : 40 E. 3. 41 E. 3. 18. If the Lessee doth commit Waste and granteth over his term , the Writ shall be brought against the Grantor , and shall suppose , Quod tenet , and yet in truth , he doth not hold the Land , and the Writ shall not contain two Tenets , and such also was the Opinion of the Court. The third Exception was , because that the Writ was brought by the two Coparceners , and the Heir of the third Coparcener , without naming of Tenant by the Courtesie : And thereupon Snag cited the Case of 4 E. 3. That where a Lease is made for life , the Remainder for life , and the Tenant for life doth waste , he in the Reversion cannot have an Action of Waste during the life of him in the Remainder : So in the like case , the Heir of the third Coparcener cannot have waste , because there is a mean Estate for life in the Tenant by the Courtesie . And to prove that the Tenant by the Courtesie ought to joyn in the Writ , he cited the Case of 3 E. 3. which he had seen in the Book at large , where the Reversion of a Tenant in Dower was granted to the Husband , and to the Heirs of the Husband , and the Tenant in Dower did waste , and they did joyn in the Action of Waste , and holden good : And so is 17 E. 3. 37. & F. N. B. 59. & 22 H. 6. 25. Walmsley contrary ; for here in our Case , there is nothing to be recovered by the Tenant by the Courtesie , for he cannot recover damages , because the disinherisin is not to him , and the term is expired and therefore no place wasted is to be recovered , and therefore it is not like to the Books which have been vouched , For in all those the Tenant was in possession and the place wasted was to be recovered , which ought to go to both , according to their Estates in Reversion , but so it is not here ; for in as much as the term is expired , the Land is in the Tenant by Courtesie , and so he hath no cause to complain . And such also was the Opinion of the whole Court , that the Writ was good notwithstanding the said Exception . Then concerning the principal matter in Law , which was , whether the Writ was well brought against the second Lessee , or whether it ought to have been brought against the first Lessee : It was argued by Shuttleworth , That it ought to have been brought against the first Lessee ; for when he granted over his term , excepting the Trees , the Exception was good , ergo , &c. For when the Land upon which the Trees are growing is leased out to another , the Trees pass with the Lease as well as the Land and the profit of them is in the Lessee during the term , and therefore when he grants his term , he may well except the Trees as well as the Lessor might have done . And that is proved by the Statute of Marlbridge , for before that Statute the Lessee was not punishable for cutting down the Trees , and that Statute doth not alter the property of the Trees , but only that the Lessee should render damages if he cut them down &c. Also the words of the Writ of Waste proveth the same , which are , viz. ●n terris , domibus , &c. sibi dimissis . And the Lessee might have cut them down for Reparation , and for Firewood , if there were not sufficient Vnderwood , which he could not have done , if the Trees had not been excepted : And in 23 H. 8. Br. it is holden , that the excepting of the Trees , is the excepting of the Soil . And so is 46 E. 3. ● . where one made a Lease excepting the Woods and afterwards the Lessee did cut them down , and the Lessor brought an Action of Trespass , Quare vi & armis clausum freg● , &c. and it was good , notwithstanding Exception was taken to it : And it is holden 12 E. 4. 8. by Fairfax & Littleton , That if the Lessee cut the Trees that the Lessor cannot carry them away , but he is put to his Action of Waste . Fenner and Walmsley Serjeants contrary : And they conceived that the Lessee hath but a special property in the Trees , viz. for Fire-boot , Plough-boot , House-boot &c. and if he pass over the Lands unto another , that he cannot reserve to himself that special property in the Trees , no more than he who hath Common appendant , can grant the principal , excepting and reserving the Common ; or grant the Land excepting and reserving the Common ; or grant the Land , excepting the Foldage . The grand property of the Trees doth remain in the Lessor , and it is proved by 10 H. 7. 30. & 27 H. 8. 13. If Tenant for life , and he in the Reversion joyn in a Leafe , and the Lessee doth Waste they shall joyn in an Action of Waste , and the Tenant for life shall recover the Free-hold , and the first Lessor the damages , which proves that the property of the Trees is in him : As to that , that he was dispunishable at the common Law , that was the folly of the Lessor ; and although it was so at the common Law , yet it is otherwise at this day ; for when the Statute says , That the Lessor shall recover damages for the Waste , that the property of the Trees is in him . As the Statute of Merton . cap. 4. enacts , That if the Lessor do approve part of the Waste having sufficient for the Commoners , and they notwithstanding that bring an Assize , they shall be barred in that Case , and the Lord may have an Action of Trespass against them if they break the Hedges , by force of that Statute , as it hath been adjudged ; for the intent of the Statute was to settle the Inheritance of the Land approved without interruption of the Commoners , and so in this case : But note , That by the Statute of Marlbridge , the Lessor shall recover damages for the Houses , &c. which are wasted &c. and yet a man cannot infer thereupon , that therefore the Lessee hath no interest nor property in them ; and such interest hath he in the Trees notwithstanding the words of the Statute , which is contrary to the meaning , as it seems ; and therefore Quaere , if there be any difference betwixt them and what shall be meant by this word ( Property . ) But the damages are given by the Statute in respect of the property which the Lessor is to have in reversion after the Lease determined . Anderson Chief Iustice , The Lessor hath no greater property in the Trees , than the Commoner hath in the Soil . Walmsley 2 H. 7. 14. & 10 H. 7. 2. The Lessor may give leave to the Lessee to cut the Trees , and the same shall be a good Plea in an Action of Waste , and the reason of both the Books is , because the property of them is in the Lessor . And to this purpose the difference is taken in 2 H. 7. betwixt Gravel and Trees . 42 E. 3. If a Prior licence the Lessee to cut Trees , the same shall discharge him in a Writ of Waste brought by the Successor ; but if the Lessee cutteth down the Trees , and then the Prior doth release unto him , the same shall not bar the Successor , and so is 21 H. 6. And he cited Culpeppers Case 2 Eliz. and 44 E. 3. Statham , and 40 Ass. 22. to prove that the Lessor shall have the Windfalls . If a Stranger cutteth down Trees , and the Lessee bringeth an Action of Trespass , he shall recover but only to his loss , viz. for lopping and topping . As to that which was said , That if the Lessee cut down Trees , that the Lessor cannot take them away , that is true , for that there is a contract of the Law , that if the Leslee doth cut them down , that he shall have the Trees , and the Lessor have treble damages for them . Also he said , That the Trees are no part of the thing demised , but are as Servants , and shall be for Reparations . As if one hath a Piscary in the Land of another man , the Land adjoyning is as it were a Servant , viz. to dry the Nets . So if one hath Conduit Pipes lying in the Land of another , he may dig the Land to mend the Pipes , and yet he hath no Interest nor Freehold . To that which was said , That by the excepting of the Trees upon the Land the Land upon which they stood is excepted ; It is true , as a Servant to the Trees for their nourishment , but not otherwise : For if the Lessor selleth the Trees , he afterwards shall not meddle with the Land , but it will be wholly in the Lessor , quia ●u●●ata causa tollitur effectus ; and if the Lessee tyeth a Horse upon the Land where the Trees stood , the Lessor may distrain the same for his Rent , and avow as upon Land within his distress and fee , and holden of him : And he said that the Lessor might grant the Trees , but so cannot the Lessee ; and therefore he said that the property is in the Lessor and not in the Lessee , and if the Lessor granteth them , they pass without Attornment , but contrary if the Lessor had but a Reversion in them ; and if the Lessor cutteth them down , the Rent shall not be app●●●ioned and therefore they are no part of the thing demised . For ● E. 7. & Temps E. 1. Fitz. Waste , in two or three places it is holden , That if the Waste be done Sparsim in a Close or Ground the Lessor shall recover the whole ; then admit that the Trees are cut down , If the Exception shall be good how shall the thing wasted be recovered , and against whom : quod nota . Anderson Chief Iustice , did conceive that the Exception was void , and that the Action was well brought ; and he said , It was a knavish and a foolish demise , and if it should be good , many mischiefs would follow , which he would not remember . Windham was of the same Opinion ; and he said , That the Lessor might have accepted them , and so take from the Lessee his Fire-boot , Plough-boot , &c. which shall go with the Land . Periam Iustice agreed , That as to such a special property , none can have it but such a one who hath the Land , and therefore the Exception of the Wood by the Lessee was void : But as to the other things , perhaps if they were Apple-trees , or other Fruit-trees , the Exception had been good : Also although the Trees were not let directly , yet they are after a sort , by a mean annexed to the Land . And if the Action were brought against him who made the Exception , he cannot plead that they were let unto him , and therefore he doubted of the Exception . Rhodes Iustice also said , That he doubted of the Exception ; and he said , That the Book of 44 E. 3. is , that the Lessee should have the Windfalls ; and did not much regard the Opinion of Statham . But Anderson was of Opinion that the Lessor should have the Windfalls . Note , The Case was not at this time adjudged , but adjourned ,

CCCLXIII . Hil. 29 Eliz. In the Common Pleas.

A Copyholder with licence of the Lord made a Lease for years , and afterwards he surrendred the Reversion , with the Rent , to the use of a Stranger , who was admitted accordingly . It was moved , If here there needed any Attornment , either to settle the Reversion , or to create a Privity . It was the Opinion of Rhodes and Windham Iustices , That the Surrender and Admittance , ( ut supra ) are in the nature of an Attornment , or at the least do supply the want of it .

Mich. 29 Eliz. In the Common Pleas. CCCLXIV . Bell and Langleys Case .

IN Trespass , the Case was thus , That A. was Lord of a Manor , of which B. held Black Acre by Copy of Court-Roll in Fee according to the Custom : A. made a Feoffment of the said Black Acre to a Stranger ; B. dyed . The point was , If now the customary interest be determined against the Heir of B. For it was moved because that the Feoffee had not any Court , the Heir of B. could not be admitted , nor the death of his Ancestor presented because but one Copyholder : But all the Court held the contrary , and that the Copy should bind the Feoffee , and the ceremony of admittance was not necessary ; For otherwise every Copyholder in England might be defeated by the sole act of the Lord , viz. his Feoffment . But the Lord by his own act , which shall be accounted his folly , hath lost his advantages , viz. Fines , Heriots , and such other Casualties .

Mich. 29 Eliz. In the Common Pleas. CCCLXV . Boxe and Mounslowes Case .

THomas Boxe brought an Action upon the Case against John Mounslowe , That the Defendant slandred him , in saying , That the said Thomas Boxe is a perjured Knave , and that he would prove the said Thomas Boxe had forsworn himself in the Exchequer , &c. and supposed the said words to be spoken in London 4 Feb. 28 Eliz. Et praedict' Johannes Mounslowe per Johannem Lutrich Attornatum suum venit & defendit vim & injuriam quando , &c. Et dicit quod praedict' Tho. Boxe actionem suam versus eum habere non debet ; quia dicit quod praedict' Thomas Boxe being one of the Collectors of the Subsidies , before the speaking of the said words , viz. 27 & 28 Eliz. in Curia Scaccarij apud Westm' , did Exhibt a Bill against the said John Mounslowe , containing , That the said John being assessed in ten pounds in Goods , the said Thomas Boxe came to him , and demanded of him sixteen shillings eight pence which the said John Mounslowe did refuse to pay ; and that demand and refusal was supposed to be in London in Breadstreet ; Et pro verificatione praemisiorum ad●unc & ibid' Sacramentum Corporale per Barones praefat' Thomae Boxe praestitit : The said Thomax Boxe swore the said Bill in substance was true , ubi revera , the said John Mounflowe did not refuse : per quod the said John Mounslowe , postea , viz. praedict. tempore quo , &c. dixit de praefat' Thoma Boxe praedict. verba , &c. p●out ei bene Leuit: The Plaintiff replyed , that the Defendant spake the words de injuria sua propria absque causa per praefat. Johannem Mounslowe superius allegata : Et hoc petit quod inquiratur per Curiam , & praedict. defendens similiter . And a Ven●re Facias was awarded to the Sheriffs of London , and it was found for the Plaintiff , and damages 400 l. And now it was moved in Arrest of Iudgment , that there was no good Trial , nor the Issue well joyned ▪ for the Issue doth consist upon 2 points triable in several Counties , viz the Oath which was in the Exchequer , and that ough to have been tryed in Middlesex ; and the matter which he affirmed by the Oath viz the demand and the refusal to pay the subsidy , and that was alledged to be in London , and is there to be tryed ; and the Issue , viz. de 〈…〉 propria goeth to both , for the ubi revera will not amend the Case , as Penam Iustice said ; and both are material : For the Defendant ought to prove that the Plaintiff made such Oath and also that the substance and matter of the Oath was not true , for otherwise the Plaintiff cannot be proved perjured . And therefore the Counties here , ( if they might ) should have joyned in the Tryal : And the Opinion of the Court was against the Plaintiff ; For Anderson and Wincham said , That if this Issue could have been tryed by any one of the Counties without the other , it should most properly and naturally have been tried in Middlesex , where the Oath was made , for the Perjury , if any were was in the Exchequer : But they said . The Issue here was ill joyned , because it did arise upon two points triable in several Counties , which could not joyn ; whereas the Plaintiff might have taken Issue upon one of them well enough , for each of them did go to the whole , and if any of them were found for the Plaintiff , that he had sufficient cause to recover . Gawdy moved that it should be helped by the Statute of Ieofails , which speaks of mis-joyning of Issues . Anderson , The Issue here is not mis-joyned : For if the Counties could joyn , the Issue were good , but because that the Counties cannot joyn , it cannot be well tryed : But the Issue it self is well enough . Windham and Rhodes were of the same Opinion ; but Periam doubted it . Anderson said , That if an Issue tryable in one Court , be tryed in another and Iudgment given upon it , it is Error . And afterwards Lutrich the Attorney said , That it was awarded that they should re-plead ; Nota , quod mirum : For first , the Statute of 32 H. 8. cap. 30. speaks of mis-joyning of Process , and not mis-joyning of Issues ; and admit that this Case is not within any of those Clauses , each of them being considered by it self , yet I conceive it is contained within the substance and effect of them , being considered together . Also I conceive , it is within the meaning of both Statutes , viz. 32 H. 8. cap. 30. & 18 Eliz. cap. 14. for I conceive , the meaning of both Statutes was to waste delays , circuits of Actions and Molestations , and that the party might have his Iudgment notwithstanding any defect , if it were so , that notwithstanding that defect , sufficient title and cause did appear to the Court. And here the Plaintiff hath sufficient cause to recover , if any of the points of the Issue be found for him : For if it be found that the matter and substance of the Oath be found true , which might be tryed well enough by those in London ) the Plaintiff had cause to recover : Wherefore , I conceive that the Verdict in London is good enough and effectual : And note , that Rhodes said that he was of Counsel in such a case in the Kings Bench , betwixt Nevil and Dent.

CCCLXVI . Mich. 19 Eliz. In the Common Pleas.

3 Leon. 103. THe Case was , A. granted B. a Rent-charge out of his Lands to commence when J. S. dyes without Issue of his Body ; J. S. dyes having Issue and the Issue dyeth without Issue : Dyer said , That the Grant shall not take effect , for J. S. at the time of his death had Issue , and therefore the Grant shall not then commence , and if he dyeth , then not at all by Manwood . And Dyer and Manwood said , If the words had been to begin when J. S. is dead without Issue of his Body , then such a Grant should take effect , when the Issue of J.S. dyes without Issue , &c. And they said , That if the Donee in tail hath Issue , which dyeth without Issue , the Formedon in Reverter shall suppose that the Donee himself dyed with Issue , for there is an Interest . And there is a difference betwixt an Interest and a Limitation : For if I give Lands to A and B. for the term of their lives , if either of them dyeth , the Survivor shall hold the whole : But if I give Lands to A. for the lives of B. and C. now if B. or C. dyeth , the whole Estate is determined , because it is but a Limitation , and B. and C. have not any Interest .

CCCLXVII . Temps Roign Eliz. In the Common Pleas.

THe Prior of Bath let his Manor of A. to C. for life , rendrint Rent ; and after the Priory dissolved , the King let the whole Manor , with the appurtenances to J. S. Dyer , The matter depends upon this point , If the Demesus be severed from the Services during the life of the Lessee . And he conceived that the Lord could not hold a Court , if such power were not reserved upon the Lease ; contrary if but parcel had been leased , quod fuit concessum . Welch , The Demesns are severed from the Services for ever , as if they had been granted in Fee ; but here , having regard to the Lessor , the Demesns and Services are united , and make one Manor : But as unto the Lessee , and all others , the Services are in gross ; and such also was the Opinion of Dyer : And he said , That if a Bishop Leases the Demesns of his Manor for life , and dyeth , the Reversion shall be in his Successor , and was in him in his life time in the right of his Church ; and if Husband and Wife , seized of a Manor in the right of the Wife , let the Demesns of the said Manor for life , yet he hath the Reversion in the right of his Wife , and in such Case it remains a Manor ; but if the Husband alone had let it , he had gained the Reversion to him , and severed it from the Manor .

CCCLXVIII . Trin. 33 Eliz. In the Common Pleas.

THe Case was , 3 Leon 252. A man 30 Eliz. made a Feoffment in Fee to the use of himself for life , and after to the use of his first Son , and his Heirs : The Father and the Feoffees before Issue , For mony , by Deed gave , granted , and enfeoffed J. S. and his Heirs , who had no notice of the use : the Tenant for life had Issue , and dyed the Issue entred . Glanvill , The use limited to the first Son is destroyed ; for without regress of the Feoffees it cannot rise , and it is gone by the Livery . Vide Plow . Com. 347. And also he put the Case of the Earl of Kent , who by the Release of the surviving Feoffees , a dormant use was destroyed , and could not afterwards be revived . Harris , The use might rise without the entry of the Feoffees ; and he put a difference betwixt an use created before the Statute , and created after ; for in the first case they ought to enter , and if they be disabled by any Act , as in the case of Gascoign and the Earl of Kent , it shall never rise ; but in the latter case all the authority and confidence is by the Statute taken out of the Feoffees , and the use contingent shall rise without aid of the Feoffees , by the operation of the Law ; for the Land is bound to the uses , and charged with them ; as upon a Recovery in a Warrantia Chartae , the Land of the Defendant is charged pro loco & tempore ; and according to the common Experience in Conveyances for payment of the Kings Debts , as in the case of Bowden and Dennis , the Debtor of the King made a Feoffment in Fee unto the use of himself and his Heirs until he should make a default of payment of such a Sum to the Queen at such a day , and for default to the use of the Queen and her Heirs . Cooper , There needs no entry of the Feoffees ; and he put the difference before put by Harris , between an use created before , and an use created after the Statute ; and now the Feoffees have not any power to revive or destroy such uses , but are only as instruments to convey the uses , for the use is created upon the Livery , and is transferred by the Statute , if the person to whom the use is limited be capable thereof at the time of the limitation ; and he put the Case of Feoffments to uses , 30 H 8. and there is a great difference betwixt uses limited before and after the Statute ; for they have not such a Seisin whereof they may make a Feoffment . And he put the Case of Cheny and Oxenbridge ; Cheny let to Oxenbridge for 60 years , and afterwards enfeoffed Oxenbridge to the use of Cheny himself and his Wife , for their lives , with divers Remainders over ; and it was adjudged in the Court of Wards , that by that Feoffment the term was not extinct : And he put the Case of the Lord Paget , adjudged in the Kings Bench ; A Feoffment was made to the use of the Feoffor for life , the Remainder to him whom the Feoffor should name at his death in Fee ; the Feoffor and the Feoffees for good consideration levy a Fine to a stranger and afterwards the Feoffor names one and dyes , the party named by the Feoffor shall have the Land notwithstanding the Fine . Beaumount , The contingent use here is utterly destroyed ; and it appears by the preamble of the Act of 27 H. 8. that the makers of the said Act did not favour Vses , but their intent was utterly to root out Vses ; and if contingent Vses , which are not , nor can be executed by the Statute , should stand in force , the mischief would be . That no Purchasor would be secured of his Purchase , but should always be in danger of a new born use , not before known . And he grounded his further Argument upon the reason of Manwood and Dyer , Where a man makes a Feoffment in Fee to the use of himself and his Wife that shall be and afterwards he and his Feoffees , and those in remainder make a Feoffment to divers new Feoffees , and unto new Vses , and afterwards takes another wife and dyes ; it seemed to the said 2 Iustices that by that Feoffment ut supra the contingent Vse was destroyed ; for when the Estate which the Feoffees accepted of is taken away , which is the root and foundation of the Vses , which are the Branches and Body of the said Tree , it necessarily follows , that they also be taken away . And forasmuch as the Feoffees by their Livery are barred to enter for to recontinue the Estate which should yield the said Vses , they also are gone and extinguished . Yelverton conceived that notwithstanding the Feoffment , that the use did rise in its due time according to the limitation of it . Quaere , the Case was not Resolved but Adjourned .

CCCLXIX . Trin. 33 Eliz. In the Common Pleas.

IN a Replevin , the Defendant avowed for Damage feasant , the Plaintiff in bar of the Avowry shewed , That he is inhabitant of such a Town , and shewed , that every inhabitant in every Messuage in the said Town had used to have Common in the place where , &c. Glanvill , The Prescription is not good for want of capacity in the party who pretends interest , for it is not certain , but applyed to a multitude ; and he put divers cases to prove the same , as 22 H. 6. 21 H. 7. 1. Mariae , Dyer 100. The King grants a Rent probis hominibus de Islington , the same is void , for they are not capable . Harris , The Prescription is good ; and he agreed that a confused multitude could not prescribe in matter of Interest , but in an Easement or Discharge , as in a way to the Church , and that by reason of the custom of the Land , and not in their Person . Vide 7 E. 4. 26. Where it is pleaded , That all the Inhabitants within such a Town have used to have Common there , and for a Township to have a way to the Church , and by Danby it is good ; and Littleton said it ought to be pleaded by way of Vsage : and 18 E. 4. 3. All the Inhabitants of such a Town , time out of mind , have used to have Common , &c. Where a difference was taken , where the Prescription is in the Person , and where in the Land . 15 E. 4. 29. Cooper , Inhabitants of a Town may well prescribe , and he vouched Bracton 222 , 223. Quando acquiritur ex longo usu sive constitutione cum pacifica possessione continua , & non interrupta ex scientia negligentia & patientia Dominorum , Et etiam omitti potest per negligentiam : and he vouched Britton 144. Common is obtained by long sufferance , and also may be lost by long negligence , &c. The Case was adjourned .

CCCLXX . Mich. 5 Jac. In the Common Pleas.

TEnant for life of a Rent acknowledgeth a Statute , and releaseth to the Terr-tenant , the Statute is forfeited : It was holden by Cook , and two other of the Iustices in Communi Banco , That the Rent as to the Conusee was in esse .

CCCLXXI .

IT was holden by Yelverton in his Reading , That if a man makes a Lease for two years , and confirms the Estate of the Lessee for 20 years , it is a good confirmation for 20 years , because that all is but a Chattel .

CCCLXXII .

IF 2 Ioyntenants are for life , and the one grants his Estate for the life of his Companion , it was holden to be a Forfeiture ; for first it is a Severance of the Ioynture , and then a Lease for the life of another .

CCCLXXIII . Mich. 5 Jac. In the Common Pleas.

TWo men were joyntly bound in an Obligation , the one is Principal the other is Suerty , the Principal dyed , the Suerty took Administration , and the Principal having forfeited his Obligation , the Suerty made an Agreement with the Creditor , and took upon him by Bond to discharge the Debt ; In Debt brought by another Creditor of the Intestate , upon fully Administred pleaded by the Administrator , it was a Question , if upon shewing of the Obligation , and that he had satisfied it , and contented it in his proper Debt he should be relieved upon that Plea. It was adjudged he should not , because by the joyning with the Principal , the Debt became his own Debt .

CCCLXXIV .

IF Land be given to A. and B. for the life of C. the remainder to the right Heirs of A. or B. who shall survive : It was holden . That if A do release to B that the remainder was destroyed . And if Land be given to one in Tail , and if J. S. comes to Westminster such a day the remainder to J. S. in Fee , if the Estate-tail descends to two Coparceners who make Partition ; now if J. S. come to Westminster , the Fee shall not accrue , because the particular Estate is not in the same plight as it was before .

CCCLXXV . Mich. 5 Jac. In the Common Pleas.

IT was resolved , That a Copyholder was not within the Statute of W●●ls .

CCCLXXVI . Mich. 5 Jac. In the Common Pleas.

A Man makes a Feoffment with warranty ; If the Feoffee brings a Warrantia Chartae against the Heir , who pleads riens per discent at the time of the Voucher and it is found for the Tenant : It was holden , That the Plaintiff should never after have Execution of Lands which after descend , for that it is peremptory for the Demandant .

CCCXXLVII . Mich. 5 Jac. adjudge acc' .

THe Queen hath the Isle of Garnsey , and cognisance of Pleas within it , for her Ioynture : A man within Garnsey being disturbed to present to a Church which is void , brings a Quare Impedit in Communi Banco ; It was holden in this Case , That Garnsey is an Island where our Law runneth not ; but it is otherwise of the Isle 〈◊〉 Man , &c. And it was said , That if the King grants cognisance of Pleas , a man shall not have cognisance of Quare Impedit , Assise , Redisseisin , &c.

CCCLXXVIII . Mich. 5 Jac. In the Common Pleas.

NOte , It was resolved by the Iustices , That if a Parson takes a Benefice above the value of 8 l. with a Dispensation , and afterwards takes a 3 l. Benefice , that the first Benefice is void by the Statute of 21 H. 8. cap. 13.

CCCLXXIX . 44 Eliz. In the Kings Bench.

NOte , It was said that it was adjudged 44 Eliz. in Banco Regis . That if Lessee for life granteth his interest to his Lessor , that the same shall not enure as a Surrender , because there wants words of Surrender , but shall enure by way of Grant only .

CCCLXXX . Hil. 5 Jac. In the Kings Bench by Cook.

IT was holden by Cook Chief Iustice , 1 Roll. 844. Syderf . 445. If a man seized in Fee deviseth that after the death of his Son without issue , that J. S. shall have his Lands , that in that case the Son hath an Estate in Fee determinable , and that the Remainder is good .

Mich. 5 Jac. In the Kings Bench. CCCLXXXI . Balls Case .

A Copyholder pleaded , That the Custom of the Manor was , that every Copyholder for life might appoint in the presence of two others , that such a man should have his Copy-hold after his death without any Surrender to his use and that the two Tenants should assess for his Fine what Sum they pleased , so as it was not lesser than had used to be paid , where the Lord would assess a reasonable Fine ; and it was adjudged that it was a good Custom .

Pasc. 6 Jac. In the Common Pleas. CCCLXXXII . Glascocks Case .

A Copyholder alledges the custom to be , That all the Tenants within such a Manor in Essex , had used to cut down Trees to repair their Copyhold and Freehold Tenements within the Manor and also to sell their Trees at their pleasure : And adjudged a good custom .

Mich. 1 Jac. In the Common Pleas , Rot. 854. CCCLXXXIII . Sapland and Ridlers Case .

IT was adjudged after long Argument , That where the custom of a Copyhold Manor was to admit for life , and in remainder for life at any time when there is but one Copyholder for life in possession : And during the minority of the Heir within the age of 14 years , his Guardian in Soccage in his own name admits a Copyholder in remainder for life ; that it was a good Admittance according to the custom ; and he was Dominus pro tempore well enough as to that purpose ; although it was objected by Walmsley , That the Guardian is but a Servant and not Dominus ; but because it was agreed that he had a lawful interest , the admittance was good : And so it was adjudged .

Pasc. 3 Jac. In the Common Pleas. CCCLXXXIV . Duke and Smiths Case .

IT was agreed , That if he in the Reversion suffereth a Common Recovery to Vses , his Heir cannot plead that his Father had not any thing at the time of the Recovery , for he is estopped to say that his Father was not Tenant to the Praecipe , and therefore it is a good Recovery against him by way of Estoppel .

CCCLXXXV . Mich. 6 Jac. In the Kings Bench.

IN a Writ of Error brought upon a Iudgment given in Communi Banco in an Ejectione firmae upon a Lease of a Running Water , it was agreed by the Court , That no Livery could be made of Running Water , because it is fugitive ; but otherwise it is of Water in a standing Pool , for that is certain and peramount ; and of that Livery ought to be with a dish of part of the Water .

CCCLXXXVI . Duncombs Case . In the Common Pleas.

THe Grantee of a Rent-charge for life acknowledgeth a Statute , and afterwards he released to the Terr-tenant ; It was the Opinion of Cook Chief Iustice in Communi Banco , that the Rent after the Release should be put in Execution upon the Statute .

CCCLXXXVII . The Opinion of Popham Chief Justice in the Kings Bench.

IT was the Opinion of Popham Chief Iustice , That if a man covenant to stand seized to the use of himself for life , the remainder to the use of his Executors , that in that Case the Executors shall take to the use of their Testator : But if a man covenant upon good consideration to stand seized to the use of the Executors of a stranger , that the word ( Executors ) is a word of Purchase , and they shall take to their own use .

CCCLXXXVIII . Mich. 7 Jac. In the Common Pleas.

COok Chief Iustice put this case , If the custom of a Manor is , that every Tenant at his death shall pay his best Beast for a Heriot , if a Feme sole , who is Tenant for life of this Manor , taketh a Husband , and afterwards dyeth , if the Lord shall have a Heriot : Dodderidge the Kings Serjeant said that he should not , because that the Wife had not Goods .

Mich. 7 Jac. In the Common Pleas. CCCLXXXIX . Wards Case .

AN Information was against Ward and his Wife , for his Wives not coming to the Church , upon the Statute of 28 & 35 Eliz. It was said by Cook Chief Iustice , That the Husband is chargeable for the Recusancy of his Wife , and he said there needed no Conviction ; but before an Information the Husband shall not be chargeable for his Wife , but where he is named with the Wife ; and he said . That the King had a Fee-simple in their Lands , for he hath it to him and his Heirs and Successors until conformity , with satisfaction of the Arrearages . Vide Statut. 28 Eliz. Rastal . Tit. Corone .

Mich. 3 Jac. In the Common Pleas. CCCXC . Wheelers Case .

A Copyhold custom is , That a Woman shall have a Free Bench , quam diu se bene gesserit , and live chaft ; and she is incontinent , of which the Lord hath not notice , and the Lord admits her Tenant : It was holden it should bind the Lord , although he had not notice of the Incontinency .

Mich. 5 Jac. In the Star-Chamber . CCCXCI . Edwards and Wattons Case .

NOte for Law in the Star-Chamber , If a man write a scandalous Letter unto another , and put his name to it , if the party who writ it , publisheth the same either before or after the delivery , an Action upon the Case lyeth against him at the Common Law : But if the party who writes it doth not publish it , yet he may be sued for the same in the Star-Chamber : And it was said in this Case . That he who receives Books which are written against the Religion established in the Kingdom , and shews them to others , with Comments of them , he runs into a Praemunire by the Statute of 4 Eliz.

CCCXCII .

Rolls tit . Waste . THe Case was , A. made a Lease of White Acre to B. upon condition he should do no Waste ; in which there was a Fish-pond stored with Carps , Pikes , and their Fry ; C. destroys all the Fish , B. being upon the Land , for which A. enters ; 1. If the destruction of all the Fish , and their Fry , be Waste within the Statute of Gloucester : It was said that it was , for they are parcel of the Inheritance , as are Deer within a Park enclosed : But it was adjudged 29 Eliz. in Communi Banco in Moyle and Ewers Case , That where a Lease of a Manor was , in which was a Warren of Conies , and the Lessee destroyed the Conies , that it was not waste , for they were ferae naturae , and the Land bettered by them ; and such was the Opinion of Walmsley Iustice , although the Conies were in a Warren paled and enclosed with a Wall ; but the destroying of Doves in a Dove-house is Waste . And it was adjudged in Sir Francis Palmers Case , 9 Jac. in B.R. That although the cutting of Vnderwood was not Waste yet the eradicating of it was Waste : The other matter was , If the destruction of the Fish by a Stranger , the Lessee being upon the Land were waste ; it was said it was waste , for qui non vetat peccare cum possit jubet ; and it was said , That if a man commit waste , or suffer another to do it , he did incur the penalty in the Statute . But in this case it was said , That a Condition to defeat an Estate should be taken strictly : As if a Custom be , that if a Copyholder for waste done shall forfeit his Estate , if a stranger doth the waste it is no Forfeiture , for three things in Law shall be taken strictly , Conditions , Customs , Penal Laws . As if the Custom be , That an Infant at the age of 15 may make a Feoffment , he cannot make it by Attorney . And it was adjudged 1 Jac. in Communi Banco in Woodleys Case . So the Statute of 5 E. 6. a Penal Law is , That a man shall not buy any Victual to sell the same again : Yet it was adjudged , That where a man buys Meal , and makes the same into Starch , and sells it , he may well justifie the sale thereof , and it is out of the Statute , because it is not the same thing .

Pasc. 8 Jac. In the Kings Bench. CCCXCIII . Wards Case .

IT was adjudged in this Court , That if a Mill be set upon Posts , that no waste lyeth for it ; and that a Copyhold might be of a Mill , as it was adjudged in Green and Harris's Case . Also it was said , That there is a real and personal Forfeiture of Copyhold Lands ; Real is not necessary to be found by the Homages , as was resolved in Brocks Case ; but otherwise it is of a Personal Forfeiture : And Hil. 8 Jac. a Woman Copyholder built a new House upon the Land , and it was agreed to be a Forfeiture .

Pasc. 8 Jac. In the Common Pleas. CCCXCIV . Brown and Tuckers Case .

IF a man have Estovers to such a House , 4 Co. 84. and he enlargeth his House , or buildeth more Houses or Chimneys , the Estovers remain to all the Houses and Chimneys which were there before , and not to those added or new builded , as it was adjudged .

Pasc. 8 Jac. In the Common Pleas. CCCXCV . Batcliffe and Chaplins Case .

1 Roll. 623. IN an Ejectione firmae between Ratcliffe and Chaplin upon not guilty pleaded , it was given in Evidence . That time out of mind a Custom had been used , and that proved by Witnesses , that the eldest Heir , be it Male or Female , should inherit the Land ; and that it appeared in the Court Rolls of the said Manor , of which the Land in question was parcel ; two Presidents to prove that the eldest Sister ought to inherit , and that the youngest Sister should have nothing in the Land ; the one President was 8 Eliz. and the other 18 Eliz. In the other side in disaffirmance of the custom , it was given in Evidence , divers Court-Rolls 6 H. 4. and especially one President , That both Sisters should inherit as Coparceners did by the common Law ; notwithstanding which , the Iury found for the custom in regard they upon their own knowledge knew the usage of the Country , and that in divers places it had been so used in the Hundred within which this Manor was . But in this case it was agreed by the Court , That if the custom had been that the eldest Sister only should inherit , yet by that custom the eldest Aunt , or the eldest Neece should not inherit the Land : And so it is in the case of Borough English , where the custom is , That the youngest Son shall have the Land , it doth not give it to the youngest Vncle , for customs shall be taken strictly : and Foster Iustice said . That so it was adjudged in one Totnams case : And in the Argument of this case , it was said by Cook Chief Iustice , That there are two Pillars of Custom , one the common usage ; the other , that it be time out of mind ; and therefore upon the Evidence given to the Iury , the Court enforced the parties which maintained the custom to shew Presidents in the Court-Rolls to prove the usage , and he said , that without such proof , and that it had been put in ure , although it had been deemed and reported to have been the true custom ; yet the Court could not give credit to the promise by Witnesses .

Pasc. 8 Jac. In the Common Pleas. CCCXCVI . Arden and Goads Case .

IN an Action of Trespass upon the Case for divers Goods , the Declaration was of Trover and Conversion of them to the Defendants use : Vpon Not Guilty pleaded , they were at Issue , and there an Inventory of the Goods was given in Evidence to the Iury , as the Goods were apprised by Vpholsterers : And in this Evidence another Point did arise , These Goods were taken in Execution , and delivered to the Defendant by the Sheriff ; and afterwards the Owner of the Goods against whom the Execution was awarded , made a Deed of Gift of them to the Plaintiff by these words , scil. He granted all those Goods which were late put in Execution . Cook Chief Iustice said . That Quacunque via data that Deed could not entitle the Plaintiff to the Goods , for it is a Dilemma ; for Posito , that the Goods were put in Execution , then they did not pass ; and admit that they were not put in Execution , he did not grant but only those Goods which were in Execution , and so there is an opposition ; and afterward Iudgment was given for the Defendant .

Pasc. 8 Jac. In the Common Pleas. CCCXCVII . The Earl of Rutland and Spencers Case .

THe case was , 8 Co. 55. The late Queen Elizabeth granted to the Earl of Rutland the Office of Parkership and Constable of &c. Habendum from the time of his full age for life , and also by the same Patent she granted him the Stewardship of a Manor , Habend' praedict' Officia pro termino vitae per Deputatum suum vel Deputatos suos , &c. eidem Officio pertinent' in tam amplis modo & forma , &c. Volentes quod subditi nostri sint auxiliantes & assistentes to him : And after that one as Steward to that Court came and made Proclamations , and also did the Deputy of the Earl of Rutland : And thereupon the Earl of Rutland brought an Action upon the Case against the other : In this case three Points were moved by Nicholls Serjeant , 1. If a Stewardship granted by the King might be exercised by a Deputy without such authority given him in his Patent : And he took a Difference between an Office of Trust and other Offices , as in 28 H. 8. of a Carver , &c. and 11 E. 4. 1. the Office of the Chancellor of the Exchequer , and such Offices cannot without special Authority be assigned over , 39 H. 6. 34. Of the Office of Marshal per se vel sufficient' Deputatum , &c. Nevills Case in the Commentaries . Offices of trust which are inheritances may be executed by Deputy . 8 Eliz. Dy. 248. A Steward may be retained by word ; and he said , There is a difference between a Deputy and an Assignee ; for an Assignee can forfeit but his own Estate , but a Deputy shall forfeit the Estate of his Master , and therefore if a Steward grant his Office for life who hath the Office in Fee , the Grantee shall forfeit no more than his Estate for life , 2 E. 6. Br. If the under Steward make Admittances , it is good , and yet he is but a Deputy ; but if it be out of Court , then it ought to be by a special Custom , Vide 2 Eliz. Dyer . The Office of Chyrographer granted for life , and exercisable by a Deputy : And he said , That in these Letters Patents the intent shall be taken beneficially for the Subject , and that for the Honour of the King , if the King be not deceived in his Grant. Vide 6 E. 6. Dyer 77. Dodderidge to the contrary ; and he took a difference between Offices of Trust granted for life , and those which are granted in Fee , for he who hath it but for life cannot assign them over ; for the Grantor did not intend that another person should have the Office , unless express mention were made in the Grant of Assignees : But when the Office is granted in Fee , there is no such confidence put in the person of the Grantee , for his heir shall have it , who is a person not known to the Grantor . But in all cases the Grantee is elected for his skill : I agree 10 E. 4. 10. he may make a Deputy by special words , but then that Deputy by those words cannot make a Deputy : That a Steward is an Officer of trust , is proved ; for he enters Plaints in the Court , and Surrenders , and although he hath not a Iudicial Place , yet he hath a Ministerial Place , and the Lord and Tenants repose their trusts in him : And it is also an Office of Skill . Vide 21 E. 4. 20. That the Office of the Keeper of a Park , Steward , &c. cannot be assigned without special words of Assignees . And as to the Case which was put by Nicholls , 8 Eliz. That one may make a Steward by word , and therefore an Assignee for life by word , it is a Non sequitur : And he said That for another cause in the Patent it self , no Deputy in this case could be made ; for although the words are Habendum & Gaudendum , &c. Offic' praedict' per Deputarum suum , sive deputatos suos , the same had been good if there had been no Habendum before : There was an Habendum before in the Patent : But here are three several Habendums , which are as three several Grants , and the defect of the one shall not be supplyed by the other . 22 H. 6. 11. 2. Assises are maintainable for two Offices , although they be by one and the self same Grant : And those words ( Volentes , &c. ) in the Patent , are nothing to the purpose , for the Grant it self is determinable by the Body of the Grant , and the Clause de Assistantes shall not supply that . Vide 20 H. 6. 1. Land given to two & Haeredibus , with warranty , Haeredibus suis . Vide 13 E. 3. Grants 63. Throgmorton and Tracies Case , Plow . Com. 18 H. 8. Br. Lovels Case ; and so in our Case , the clause of Assistantes makes nothing to the matter ; for reddendo singula singulis it extends to no more than passed , and was granted before in the body of the Grant. The second Point which Dodderidge argued was , If there was a sufficient Disturbance : and he held that there was not , and therefore the finding of the Iury not good : And the Iury hath not found the vi & armis ; and he said , That when the Writ is vi & armis , there ought to be some violence , and taking of something , and some actual thing is to be done . Vide F. B. 86. & 92. 43 E. 3. 20. 8 R 2. Title Office. 48 E. 3. 25. 16 E. 4. 11. & 2 E. 3. 40. But in this Case there is but a threatning at the most but no force is used ; and there the Writ is ill , and there is no sufficient Disturbance to maintain this Action . The Case was adjourned .

Trin. 11 Jac. In the Common Pleas. CCCXCVIII . Cookes Case .

IN a Writ of Intrusit Maritagio non satisfacto , It was found for the Plaintiff , but no damages were assessed by the Iury , and the value of the Marriage was found to 50 l. and now the Question was , If the same might be supplyed by a Writ of Enquiry of Damages , and prima facie the Court seemed to be of opinion it could not ; for where a man may have an Attaint , there no damages shall be assessed by the Court , if they be not found by Iury : and the Court would advise of it ; but afterwards the same Term it was adjudged , That no Writ of Enquiry should Issue forth ; But a Venire facias de novo was granted . Vide 44 E. 3. Thorp . acc' .

CCCXCIX .

MOuntague Serjeant demanded of the Iustices their opinions in a Case upon the Statute of 3 Jacobi of Recusants , in the behalf of the Vniversity of Oxford : The Case was , If a Recusant Convict , to avoid the said Statute , grants his Patronage for years to one of his Friends in trust , if the Grant was void , or not within the said Statute . The Iustices refused to deliver their Opinions in this Case ; for they said , That this Point might judicially come in question before themselves , and such they said was the Answer of Hussey in 1 H. 7. in Humphrey Staffords case : When King Hen. 7. came in Banco , and demanded a question of them ; but yet tacite they seemed to agree , that such a lease of the Patronage was void by the said Statute ; and they said , That they would not have the Vniversity to be discouraged in the case , which implyed their Opinions to be accordingly : And 21 H. 7. was vouched , that the Patronage was only matter of favour , and not valuable . And in this Case Cook said , Quod apertus Haereticus melior est , quam fictus Catholicus .

Trin. 11 Jac. In the Common Pleas. CCCC . Grubhams Case .

THe Case was this , Grubham made a Lease to one by Deed-poll , Habendum to him and his Wife , and to his Daughter successive sicut scribuntur & nominantur in ordine , and afterwards dyed , his Wife dyed , and if it was a good remainder to the Daughter , was the Question . Harris Serjeant , It was void , and not a good remainder for the incertainty . Et vide Cook 1 part , Corbets Case . In all Contracts and Bargains there ought to be certainty : and therefore in 22 H. 6. If a Feoffment be made to two , & Haeredibus , it is void , although it be with warranty to them and their Heirs . Vide 9 H. 6. 35. Where renunciavit totam Communiam , doth not amount to a Release , because it is not shewed to whom he released : And so in 29 Eliz. in Banco Regis , in Windsmore and Halbards Case , where an Indenture was to one Habendum to him and his Wife , and a third person , and it was holden that it was void by way of Remainder to any of them . But the Court was of Opinion in the principal Case , That the Daughter had a good Estate in Remainder , and that the Case did not differ from the Case in the Lord Dyer ; where a Lease was made by Indenture to one , Habendum to him , and to another sicut nominat . in Charta , and that those words made the Grant certain enough ; and so in this Case , sicut scribuntur & nominantur in ordine , shall be sicut scribuntur & nominantur in eadem Charta ; But they agreed , That a Lease made to three , Habendum successive , was not good for the incertainty .

Hil. 9 Jac. In the Kings Bench. CCCCI . Price and Atmores Case .

IN an Ejectione firmae it was agreed by the Iustices , Where a man possessed of a term for 60 years , by his Will made his Wife his Executrix , and devised all his term and interest to her , and if she dyed before the term ended , that the same should remain to his Son and the Heirs Males of his Body the Son dyed , the Executrix entred , and claimed as Legatee , and assigned the term over , the Executor of the Son entred , that his Entry was not lawful , for the Son had but a Possibility , and no Interest ; for by the devise of the whole term , the whole Interest was in the Wife , and when it was in her it could not remain over ; otherwise if the Land had been granted to her for life , and if she dyed , that it should remain as before : And note , that 25 Eliz. it was adjudged in Communi Banco , that such a Possibility could not be released : And 29 Eliz. in Hammingtons , case , that it could not be granted .

Trin. 11 Jac. In the Common Pleas. CCCCII. The Bishop of Exeter and Sir Henry Wallops Case .

NOte in this case it was adjudged , That the King by a special Proviso in the Statute of 21 H. 8. of Plurality , might give to any of his Chaplains as many Benefices as he pleased . But otherwise it is of a common person , for they are stinted by the Statute .

Mich. 12 Jac. In the Kings Bench. CCCCIII . Glover and Archers Case .

THe case was , Tenant for life made a Lease for 21 years , 10 Co. 127 , 128 2 Cro. 127. & 309. ib. rendring Rent at Mich. and the Annunciation , or within 13 Weeks of any of the said Feasts : After Mich. and before the 13 Weeks past , the Lessor dyed ; and the Plaintiff his Executor brought Debt for the Rent : It was adjudged by Cook and the other Iustices , That the Action did not lye forthe Rent : For the Rent being to be paid at Mich. or within 13 Weeks after , the Lessee hath Election to pay it at any of the days , and before the last day it is not due , and when the Lessor dyeth before that day , his Executors have not any right to the Rent , but after the death of the Lessor , having but an Estate for life , the Rent is gone : But if the Lessor had had a Fee-simple in the Land , and had dyed before the last day , the Heir should have had the Rent , as incident to the Reversion : But if the Lessor had survived both days , the Rent had been a thing vested in him , and his Executors should have had it ; but if the Rent had been reserved at Mich. and if it be behind by 13 Weeks , that then it should be lawful for the Lessor to enter ; if the Lessor survive Mich his Executors shall have Debt for the Rent , for then the Rent is due , and the 13 Weeks are but a Dispensation of the Entry of the Lessor until that time : And in this case as well as where the Rent is reserved at two days in the disjunctive , it is sufficient that the Rent be demanded at the latter day , without demanding of it at the first day .

Mich. 10 Jac. In the Common Pleas. CCCCIV . Sir Baptist Hix and Fleetwood and Gotts Case .

Roll. tit . Condition . THe Case was , Fleetwood and Gotts bargained and sold Weston Park , being 300 Acres of Land , to Sir Baptist Hix for 11 l. for every Acre , which did amount to 25 30 l. and in the premises of the Indenture of Bargain and Sale , it was agreed by the parties , That the said Park being Wood-Land should be measured by a Pole of 18 Foot and a half : And further it was covenanted , That Fleetwood and Gotts should appoint one Surveyor , and Hix another , who should measure the said Park ; and if it by the measure should exceed the Number of Acres mentioned in the Indenture , that then Hix should add to them according to the proportion of 11 l. for every Acre , and if it wanted of the Measure , then the said Fleetwood and Gotts should repay to Hix the Surplusage of that Mony , according to the proportion of 11 l. the Acre : And upon the Indenture Hix brought Covenant , and Assigned a Breach , because upon Measure it wanted 70 Acres ; and the Defendants did demur upon the Declaration , because the Plaintiff had not therein shewed by what measure it was measured ; for they said by Shirley , That although it was agreed in the first part of the Indenture , that the measure should be by a Pole of 18 Foot and a half , yet when they come to the Covenants , there they do not speak of any Measure ; for which cause it shall be taken for such a Measure as the Statute speaks of scil. a Measure of 16 Foot and a half the Pole ; and by such Measure there wants not any part of the Acres . Dodderidge contr . And he put this ground , That if certainty once appeareth in a Deed , and afterwards in the same Deed it is spoken indifferently , Reference shall be unto the certainty which appeareth : And therefore if by an Indenture Lands be given to a man , & Haeredibus masculis , and afterwards in the same Deed it appears , it is Haeredibus de Corpore suo : It shall be an Estate-tail , because the first words were indefinite , and the last certain , by which it appeared that he passed but an Estate in Tail : And 4 E. 4. 9. b. the words of a Declaration was , Noverint universi per praesentes nos J. S. teneri , &c. W. B. in 20 l. solvendum eidem J.S. It was holden by the Court , the same did not make the Obligation void , because it appeared by the first part of the Obligation , that he should be bound to the Plaintiff ; and therefore the intent being so , the Plaintiff might declare of a Solvendum to himself : And the words ( J. S. ) should be Surplusage : And 22 E. 3. 4. the Abbot of Selby granted quandam annuam pencionem 〈◊〉 ad rogatum J.E. illam scilicet quam idem J. E. habuit ad terminum vitae suae , Et solvendam quousque ( sibi ) de beneficio Competo provisum fuerit ; It was holden by the Court in a Writ of Annuity brought , That the word ( sibi ) should have reference to B. the Grantee , and not to J. E. And Cook said , That the original Contract did leave the Measure in this Case ; and for that he vouched Redwellys Case in Plowd . Comment. A Lease rendring Rent at Mich. at D. and if it be behind for a month after demand , that the Lessor shall re-enter ; it shall be demanded at the first place .

Trin. 12 Jac. In the Star-Chamber . CCCCV. Sir Richard Egertons Case .

IN this Case the Wife of Sir John Townsend being sentenced in 1000 l. and in Execution in the Fleet for the Costs of the Plaintiff ; these Points were resolved by the Court : 1. If a man be Sentenced in the Star-Chamber to pay a Fine , and to Imprisonment , and the Delinquent renders his Body to Prison , that notwithstanding the Body continues in Prison , the King shall be satisfied the Fine out of the Profits of the Delinquents Lands . 2. If a Feme Covert be sentenced there and she renders her Body to Prison , and there abides , That the Lands of her Husband shall be sequestred , and the Profits thereof for the Fine of his Wife . And that now upon the Statute of Recusancy the Lands of the Husband for the Recusancy of his Wife , if he do not render her to Prison , and discharge the same . 3. If a man be Sentenced in the Star Chamber to pay a Fine , and to have Imprisonment , and he yield himself to Prison , That before his Fine be also paid , he shall not proceed in any Action at the Common Law against the Party in the same Suit.

Pasc. 12 Jac. In the Common Pleas. CCCCVI . Crane and Parkins Case .

IN Trespass , The Defendant pleaded that the Land in which was parcel of the Manor of Broughton Astley demisable by Custom , and shewed , That the Custom of the Manor was , that if any Tenant for life dyed , that the Lord for three years Fine ought to grant the same to his Heir , and pleaded a Grant of the Manor to the Lord Grey of Grooby : And also pleaded another Custom of the said Manor , That if any Tenant for life of the said Manor had a Wife , and dyed , that the Wife shall have in the Land her Widows Estate : And that after the death of the Wife , that the Son , for a Fine of three years paid to the Lord , should have it for his life , and that the Defendant claimed as Son , according to that Custom . The Plaintiff made Title as Lessee for years to the Lord Gray of the Manor , and traverseth that there was not any such Custom , that the Son for a Fine of three years paid should have the Land for his life . Hutton said , That the Traverse was good ; for if there was not any such Custom , that the Son should have it so for life , then ex consequente sequitur , that there is not any such Custom that the Son should have it after the death of the Wife , or her Surrender , and therefore he needed not to Traverse the last Custom alledged . But the whole Court was against him , and ruled , That the Traverse was not good ; for he ought to have traversed the last Custom , because there are several Customs , and the one is immediately to him , the other not ; and the Defendant claimed by the Second Custom , and therefore the Court awarded , That he should amend his Plea.

Pasc. 12 Jac. In the Common Pleas. CCCCVII . Sir Henry Rolls and Osborns Case .

Hob. Rep. 20. More Rep. 859 2 Brownl. 169. SIr Henry Rolls brought a Writ of Warrantia Chartae against Sir Robert Osborn and Katharine his Wife , and shewed , That the Defendant ought to warrant him a Messuage . 40 Acres of Land , 700 Acres of Pasture in Kelmarsh , and shewed , That Sir Robert Osborn and his Wife levied a Fine to him and his Heirs of a Manor , and of the Lands aforesaid , with warranty to him and his Heirs ; and further shewed , That a Writ of Entre sur disseisin was brought against him of the said Messuage , 40 Acres of Land , 700 Acres of Pasture , and that he had demanded the Warranty of the Defendant , or that he would minister to him a Plea , which the Defendant hath refused to do , to his damage of 1000 l. the Defendant confessed the Fine and Warranty , as aforesaid ; but further pleaded , That in the same Term that the Fine was levied , a Writ of Entry was brought against Sir Henry Rolls , in which Writ he vouched to Warranty the said Defendant , who alone entred into the Warranty and vouched over the common Vouchee , and so a Recovery was had accordingly : And averred That the said Recovery was to the use of Sir Henry Rolls for his life , and if there was a Marriage between him and A. S. within 4 years , then to the use of the said A. S. for her Ioynture , with divers remainders over and averred the life of Sir H. Rolls : Vpon which the Plaintiff did demur in Law. Shirley Serjeant argued for the Plaintiff . That the Warranty was not destroyed , but that the Plaintiff might well mantain his Warrantia Chartae : and for the same he vouched 22 H. 6.22 . Cliffords Case ; That there ought to be an alteration of the Estate to which the Warranty is annexed , and here is no alteration of the Estate ; for although the Recovery was had the said Term and a Voucher upon it , yet because the uses did not take effect presently , but were contingent uses , he remained Tenant in Fee-simple as he was before ; and so the first Warranty remained , and was not destroyed . Mountague Serjeant contrary ; and that the Warrantia Chartae was gone , and that for four Causes : 1. He who comes to an Estate in the Post shall not have a Warrantia Chartae , but Sir Hen. Rolls cometh to the Estate in the Post , ergo , he shall not have Warrantia Chartae . And for that vide 29 Ass. 34. Lord by Escheat shall not have Warrantia Chartae . 22 Ass. 57. The Lord of a Villain shall not have a Warrantia Chartae . 21 H. 6. Disseisor shall not have Warrantia Chartae : and so 19 H 6.25 . 10 H. 7.10 . Tenant by the Courtesie shall not have the Writ , because all these come to the Lands in the Post : But see Cook 3. part , Lincoln Colledge Case , they may have peradventure benefit of a Rent or of a Condition , but not of a Warranty , 27 E. 3. garr' Statham acc' . 2. Every Warranty ought to have the same Estate continuing to which the Warranty is annexed , but Sir Hen. Rolls had not the same Estate continuing , ergo , he shall not have the Warranty , because the Fine was to him and his Heirs with Warranty ; but this Recovery ( which was but a further assurance ) was but to the use of himself for life , with divers Remainders over so as the first Estate is altered : And 42 E. 3.2 . 40 E. 3. 14. it is a good Plea in a Warrantia Chartae , that the Demandant is not Tenant . And 41 Eliz. in Bointon & Chesters Case , it was adjudged in this Court , That if a man makes a Feoffment with Warranty , who enfeoffs the first Feoffor , upon Condition that that Warranty remains , he shall vouch by reason of the first Warranty ; but if upon that Feoffment he had limited any new use , there because the Estate was altered , the Voucher was gone . Vide F. N. B. 135. 19 E. 3. T. Voucher 12.2 . 48 E. 3. 18. acc' . And it was Resolved 34 Eliz in Banco Regis in Kempe & Henninghams Case , That in such Case he should not have several Warrantia Charta's : And therefore because in the principal Case he hath once vouched upon this Recovery , and upon that the Estate is altered , he cannot now have Warrantia Chartae . 3. Every Warranty is a Covenant real , which consists in privity , and therefore destroy the privity , and the warranty is gone . But now in this Case the first privity is destroyed , therefore the warranty is gone . And therefore 11 H. 4. 8. if two Ioyntenants be with warranty , and one of them maketh a Feoffment in Fee , the warranty is destroyed , because the first privity is destroyed , 21 H. 6. 51. acc' . But Vide 19 E. 3. Statham Garr' 31. If two Ioyntenants are with warranty , and the one Releases to the Feoffor , there the warranty remains , because the privity remains , Vide 2 H. 6. 7. Cook 1 Part , Chudleighs Case 125. acc' . And see M. 31 Eliz. in this Court , King and Watts Case : Land is given to Husband and Wife , and to the Heirs of the Body of the Husband and Wife , the Husband levies a Fine , and dyes without Issue , the Wife is impleaded , and adjudged that she could not have Aid , nor Warrantia Chartae , because the Estate was bound by the Fine , the Husband being Tenant in special Tail. 4. No warranty can have but one recompence , and if there be recompence given , the warranty is gone and extinct : But here is a recompence made by the Voucher in this Recovery , therefore the warranty is extinct . 34 Ass. pl. 15. 23 E. 3. garr' 77. acc' . and 15 E. 4. 13. 12 E. 4. 12. If he will not take advantage of the warranty when he may , he shall never have it after . Vide F. N. B. 134. acc' : And 36 Eliz. it was adjudged in Owens Case , That if Tenant in Tail bargains and sells his Lands , and suffers a Recovery , and afterwards Inrolls the Deed , that that Recovery is a good bar to the Estate tail , because there is a supposition of recompence : and so he prayed Iudgment for the Defendants . It was adjourned . Vide this Case now Resolved in the Lord Hoberts Reports .