Hill. 17 Jac. Rotulo 170. Petts against Browne.

A Man is seised of Land in Fee, and, having two Sons, doth devise his Land to his younger Son and his Heirs, and if he dye without Issue (living the eldest Son) then the elder shall have the Land to him and his Heirs: the Devisor dies, the younger Son had issue a Daughter, that dyed with­out issue: then the younger Son suffers a common recovery with Voucher, to the use of him and his Heirs, and after deviseth to another and his heirs, and then dies without issue, living the elder Son.

Whether the Devisee or the elder Son should have the Land? was the question.

And the Counsell for the Devisee raised three points.

1. Admitting that these words in the Devise were omitted, viz. (living the eldest Son) whether the younger Son had an Estate-taile, or not?

2. Whether these words do make such alteration of the Estate, as to make the Estate a Fee-simple determinable upon this contingency, viz. (if he die without issue, living the elder Son?)

3. Admitting that there were such a Fee in the younger Son, yet whether this Estate devised to the eldest Son, be not destroied by the recovery?

And as to the first point it was argued; that if these words of limi­tation I (living the elder Son) had been omitted, the younger son had had an Estate-tail by this Devise, the remainder in fee to the eldest Son.

For although the Devise to the younger Son was to him and his heirs, which (in case the Devise had stayed there) had made a very good Fee-simple to the younger Son; yet when the Devisor goes and declares further, and deviseth, that if he dye without issue, that the elder son shall have the Land, this last limitation (if he dye without is­sue) doth restrain the generality of these words (his heirs) to the heirs of the body of the younger Son only, so that the last Devise to the [Page 2] eldest Son doth declare and exemplifie wh [...]t kind of heirs the Devisor intended in the first Devise to the youngest Son: and in the 5 H. 6. and the 5. where Land was given to R. and K. his Wife, and their heirs, and to the heirs of the said R. if the heirs of the said R. and K. his wife issuing should dye, and this was adjudged a good Estate in tail. And there it was said by Hall, that if Land be given to a man and his Heirs for ever, Et si contingit ipsum Obire sine haeredibus de corpore suo, this is a good estate in tail: and in the 19 H. 6. 74. by Vampage, If I give land to another and his heirs for ever in the be­ginning of the Deed, and then after I say Quod si contingat, that if he die without heirs of his body, that it shall remain to another, in this case the Law intends by the Si contingat, that it is but an Estate-tail. And in the Book of Assises 14. Land was given to B. and his heirs, to have and to hold to him and his heirs for ever, if B. shall have issue of his body, and if he die without heirs of his body, that the Land shall revert to the Donor and his heirs. B. had issue which died without is­sue, and it was adjudged that B. had but an Estate in tail, and because he died without heirs of his body, it was adjudged that the Donor should recover against the collaterall heire of B. And if the Law be so in Deeds or Grants executed in the life of the Donor, a fortiori in a Devise, which is to be taken more favourably then an estate made by Deed, and therefore it is sufficient in a Devise to have the intention of the Devisor understood, either to make an estate in fee or in tail, although proper words to make such an estate be not used, and the in­tent of the Devisor cannot be more manifest to have an estate in tail then in this case.

II As to the second Point, the question will be, whether the youn­ger Son hath an estate in Tail or in Fee determinable by this limi­tation? and it seemed to them that he shall have but an Estate in tail. In which, the question is, to which estate these words of limitation, to wit (living the elder Son) shall be referred, viz. Whether to the Estate made to the younger Son, or to the Estate given to the elder, for if they be referred to the Estate made to the younger, there is no question but these words do abridge & restrain the estate, but if to the elder, then they make no restraint or restriction as to the estate of the younger Son, but onely limit the remainder to the elder Son on this contingency only, viz. (If he be alive at the time of the death of the youngest Son without issue.) And to prove that these words shall be referred to the estate devised to the elder brother; They said, That if the land had been devised to the younger Son and the heirs of his body, and if he dyed without issue, living the elder, that the elder should have the estate to him and his heirs; it is clear that the youn­ger hath an absolute estate tail, and that then the remainder to the el­der shall be on this contingency, viz. (If he be living when the younger dies without issue.) And so is Frenchmans Case, 1, & 2. Eliz. who de­mised land to his wife for life, the remainder to Charles Frenchman, and the heirs males of his body, and, if he died without heirs males of his body, the remainder to Arthur Frenchman and the heires males of his body. Charles had issue a Daughter, and died without issue male, and it was adjudged that the Daughter should not have the land, for this contingency does not alter the Estatetail that was first limited to Charles, and, although the Devise in the case at Bar be to the youngest Son and his Heirs without any limitation of his body, yet, the limi­tation [Page 3] afterwards, to wit (if he die without issue) does explain well enough, that the heires of his body are intended, and then the subse­quent words (living the Eldest Son) cannot alter the estate first given to the younger Son. And Hil. 40. Eliz. in the Kings Bench by Walmes­ly, If one deviseth land to his Son and his heirs, and further deviseth that if he die without issue, that the land shall be sold, yet the Son shall have an estate in fee and not in tail, but otherwise, if he devised that if he died without issue, that the lands should remain over, for in the first case, he disposeth of no more of the estate by the last words, then he did at the first, but in the last case he disposeth of the estate it self in remainder. And this was agreed by Owen, 18, & 19. Eliz. Rot. 354. and 15. & 16. Eliz. Rot. 330. where the case was, That one Edward Clark, being seised in fee of two houses, had issue Henry, and two Daughters, Alice and Thomasin: Henry dyed before the two daugh­ters, living the Father, the Father devised one house to his daughter Alice and her heirs for ever, and the other to Thomasin (who was at that time but eight years of age) and her heirs for ever, and if she died before the age of sixteen years (Alice then living) Alice should have it to her and heirs, and if Alice should die having no issue (living Thomasin) Thomasin should have the house of Alice to her and her heirs, and if both of them died without issue, he devised the two houses to the two Daughters of his Son Henry and their heirs, and if they died without issue, he devised the remainder to a stranger. Proviso, That if Alice should marry I. S. that Thomasin should have her part to her and her heirs, and if Thomasin should dye having no Child, that the daughters of Henry should have all, and if they died having no Child, the remainder to a stranger as aforesaid. The Devisor dies, then Alice marries N. but not I. S. and enters into her house, Tho­masin after sixteen years of age dies without issue: And if Alice or the daughters of Henry should have the estate of Thomasin was the que­stion. And it was holden by three Iustices, that the daughters of Henry should have it, because that Thomasin did not die within the age of sixteen years, and that, it being objected that there was no estate tail to any of the daughters but a fee simple conditionall upon a con­tingent, it was at last adjudged 14. Eliz. Rot. 340. that they were Te­nants in tail by this Devise, in Mich. 37, & 38. Eliz. 42. & Mich. 14, & 15. Eliz.

And Michaelmas 18. Jacobi. Judgment. This Case was argued by Montague cheif Iustice, Doderidge, Haughton and Chamberlain, who all agreed, that by this Devise the youngest Son had not an Estate-tail, but a li­mited see, so that by his dying without issue, living the elder Son, his estate was quite determined; and all except Doderidge agreed, that the Recovery could not hurt the future Devise. But Doderidge was much against this opinion by reason of great mischeif that might en­sue by making of Perpetuities in Devises, and cited Archers Case, and Capels Case, but notwithstanding Iudgment was affirmed as aforesaid.

De Termin. Trinitat. 18 Jacob. Rot. 1198. Dawtree against Dee, and others.

IN an Action on the Case, wherein the Plaintiff Declared, That he the fifth of July, 16 Jacobi, was and is seised in Fee of a Capital Messuage called Moor-place, with the appurtenances, and of 600 Acres of Land, meadow and pasture, in Petworth, with the said Messuage used, of the annual value of 100 l. which Messuage he and those whose Estate he hath in the said Messuage and Tenements, therein Farmors and Tenants, have time out of minde used to keep good hospitality for the relieving of the Poor in Petworth aforesaid, and that in the Church of Petworth aforesaid, on the said fifth of July and also time out of minde, there hath been and is a little Chancel, on the North part of the Parsons Chancel in the said Church; and also whereas on the said day, and time out of minde, there were divers Seats in the said little Chancel, and that the Plaintiff and those whose Estate he hath, time out of minde have repaired at their charges the said little Chancel, and the Seats from time to time, as often as was needful: and by reason thereof, the Plaintiff, and all those whose Estate he hath, have for all the said time aforesaid, onely power, liberty, and priviledg to sit in any of the said Seats in the said little Chancel, to hear Divine Service in the said Church, and also to bury the dead bodies of any person whatsoever in the said Chan­cel, at the pleasure of the Plaintiff, and those whose Estate he hath; and for all the said time have made convenient Graves in the said Chancel, for the said bodies, at their will and pleasure: And that no other person, from any time since the memory of man, have used to sit in any of the said Seats, or to bury any dead bodies in the said Chancel, without License of the Plaintiff, or those whose Estate he hath. Nevertheless the Defendants, intending to dis-inherit the Plaintiff, and to hinder and deprive him of the said liberty, the said day, and from thence until the first of May, 18 Jacobi, at Petworth aforesaid: Praedictum Henricum ad sedendum in sedibus in Cancellula praedicta tunc existentem, & ad intrandum in Cancellulam praedictam ad Divina Servitia in praedicta Ecclesia de Petworth celebrata, audiendum, fraudulenter & malitiose impediverunt, per quod idem Henricus Daw­trey in Cancellula praedicta intrare, vel in eisdem sedibus ad Divina Servitia in eadem Ecclesia durante tempore illo celebrata audiendum per totum idem tempus sedere non potuit, ad damnum 40 l.

The Defendants plead, That Henry Earl of Northumberland, the fifth of July, and long before, and always after until now, hath been, and yet is seised in fee of the Honor of Petworth, and of the said little Chancel, as parcel of the said Honor: and that the De­fendants, as servants to the said Earl, lived in the said Honor; and by the said Earls command, the said fifth day of July, and for divers other days and times between the said fifth day of July and the first of May, as often as Divine Service was celebrated in the said Church, did sit in the said seats at the celebration of Divine Service, which are the Impediments the Plaintiff did complain of.

To which the Plaintiff demurred.

[Page 5]1. In this case it was argued for the Defendants, That the De­claration was not good, because that the Plaintiff did not set forth the manner of the Disturbance, whereupon issue might be taken thereupon, but onely declares that the Defendants did hinder him from sitting in the Seats, or to enter into the Chancel, which allega­tion is too general, to take any certain issue upon: And so in the 10 Ed 3. 39 A and B. where one lets Land for twelve years, and for security of the term, makes a Charter of Feoffment, upon condition, that if the Lessee was disturbed within the term, that he should hold the Estate to him and his heirs. And all this matter was found by the Recognitors in an Assise upon the general issue, and that the Lessee was disturbed: And this Verdict was adjudged insufficient, because they did not finde how the disturbance was made. Vid. 8 Rep. Francis Case, and the Commentaries 84. Stranges Case. That every Declaration ought to have such certainty as the Defendant may know what matter to make answer unto. Vid. Comment. 202. ad 3 H. 7. 12. Return of a Rescous ought to be certain to every intent, for that is in nature of a Declaration: And in the 22 Ed. 4. 47. Trespass for divers trespasses is not good, because of the incer­tainty.

2. Admitting the Declaration is good; It seemeth that the Plea in Bar is good, because the Defendants have made a good Iustifica­tion, viz. That the Chancel is the Earls Inheritance, and that they did sit there by his commandment: for although it might be true, that a Liberty to sit and to bury there, yet he cannot restrain the owner of the soyl from the usage of it: As, if one hath Common in the Land of another, or a Way, or other Easment, yet he cannot for these things, restrain the owner of the Land from making use of it. 21 H. 7. 39. If the Defendant in a Trespass Quare clausum fregit the first of May, does justifie the second of May, which was the same Trespass, this is a good Plea, because it may be the same Trespass, because the day is not material: And 3 H. 6. 12. in a Trespass for entry into his Warren, the Defendant pleaded that it was his Franktenement, and adjudged a good Plea as to the entry, because he cannot enter into his own Land vi & armis: but he was put to plead further as to the Chasing. 21 H. 6. 26. In a Trespass for Battery in L, the Defendant justified for keeping his possession in S, which is the same Trespass, and adjudged a good Plea without Tra­vers, because it is Transitory.

But the Court agreed the Declaration was good and particular enough, as in a Quare Impedit. Judicium. The Plaintiff did alledg generally that the Defendant hindered him to present, and that was good. And all the Iudges agreed, that the Plea in Bar was utterly insuffi­cient; for one cannot have the Free-hold of a Church, or any part thereof. And Iudgment was given for the Plaintiff.

Davison against Culier. In the City of Norwich.

THe Plaintiff at the Sessions of Peace held at Norwich, 16 Ja­cobi, did inform for the King and himself, That the Defendant, being a Grocer, the first of September then last past, at Norwich, did Ingross and get into his hands, by buying, contract, or promise, of [Page 6] divers persons unknown, 400 Quarters of Wheat, each Quarter at the price of 40 s. to the intent to sell the same again, contrary to the form of the said Statute: Wherefore he prayed, that the De­fendant might forfeit the value of the Corn, and that he might have half the value, &c.

The Defendant pleaded Not guilty.

The Iury finde, that 5 Ed. 6. it was Enacted, That every person, who, after the first of May thence next ensuing, shall get into their hands, by buying, contract, or promise, &c. otherwise then by Devise, Grant, or Lease of Land or Title, any Corn growing in fields, or any other grain, butter, &c. or dead victuals, to the intent to sell them again, shall be taken to be an Ingrosser; and for the first offence shall be imprisoned two months without Bayl, and shall forfeit the value of the things ingrossed. And as to 380 Quarters of the said Wheat, they found the Defendant not guilty; and as to the twenty Quarters residue, they found that the Defendant the first of Septem­ber 10 Jacobi, and continuing after till the tenth of August next following, at the said City did use the art and trade of Starch-making; and that he the 21 of September 15 Jacobi, did get into his hands by buying, and not by Devise, Grant, or Lease, twenty Quarters of Wheat, residue of the said 400 Quarters, to the intent to convert the same into Starch; and the 20 October, in the same year, did convert the same into Starch; and the 26 of October, did sell the same to several persons; and that every one of the said Quarters at the 21 of September was of price 36 s. But whether the Defendant were guilty of the Ingrossing aforesaid, according to the form of the Statute, the Iury knew not, and therefore de­sired the Opinion of the Court, but if otherwise, &c. And this Re­cord was removed into the Kings-Bench by a Certiorare. Judicium. And Iudg­ment was given against the King and the Informer.

Moor against Sir George Reynel, Marshal of the Marshalsee.

IN an Action of the Case; wherein the Plaintiff declares, That he, the 15 Jacobi, did recover in the Common-Pleas 240 l. Debt against one Gilbert Alsop, and 20 l. damages, and that the Plaintiff, in execution of the said Debt, did prosecute the said Gilbert by several Iudicial Writs issuing out of the said Court. And that he, by a Writ of Exigi Facias, issuing out of the said Court, the next Term after the said Iudgment, directed to the Sheriff of the City of Exce­ter, and Returnable before the said Iustices Quindena Martini, that the said Gilbert the 28 Octob. 15 Jacobi, was Out-lawed in the said City at the Suit of the Plaintiff in the Plea of Debt aforesaid, unde tunc convictus fuit, &c. That Michaelmas 15 Jacobi, the Plaintiff took out of the said Court a Capias ut lagatum against the Defendant, then to the said Sheriff directed, returnable Octabis Purifi­cationis. That the 8 Octob. 15 Jacobi, the said Writ was delivered to the said Sheriff. That the 20 January, 15 Jacobi, the Sheriff took the said Gilbert, and held him in his Custody. That the 23 Januarii, 15 Jacobi, a Habeas Corpus was awarded to have the D [...]nd [...]nt cum causa, &c. Lunae proxim. post crastinam purificationis. At [Page 7] which day he came to the said Court in the Custody of the said Sheriff, who returned the said Writ, That the twelfth of February the Defen­dant was committed by the said Court to the Marshalsey (the Defen­dant then, and yet being Marshall) nevertheless the Defendant the thirteenth of April, 18. Jacobi, at Westminster, did suffer the said Gil­bert to escape against the will of the Plaintiff, he being unsatisfied his said Debt and damages, whereupon the said Plaintiff hath lost his said Debt and damages, ad damnum 300 l.

The Defendant pleaded that the said Gilbert was committed to him by vertue of the said Writ, but said further, that he remained in his Custody from the aforesaid twelfth of Febr. untill the twenty se­venth of Febr. the 16. Jac. during all which time the Plaintiff never prayed to have the said Gilbert in execution, neither was the said Gil­bert ever committed at the request of the Plaintiff to the Marshalsey, in execution for the said debt and damages. And pleaded further, that the twenty seventh of Febr. 16. Jac. the said Gilbert did escape against the will of the Defendant, which is the same escape, whereon the Plaintiff doth declare. Upon which Plea the Plaintiff did de­mur.

Bridgman for the Plaintiff. I conceive Iudgment ought to be gi­ven for the Plaintiff, for, when the Defendant Alsop in the first A­ction was taken by the Capias utlagatum after Iudgment, he was in execution for the Plaintiff. Vide Cokes Rep. Vernons Case: for in as­much as the King, by the originall Suit of the party, is entitled to have all the Goods and Chattels, and the Profits of the Land with his body also, by reason of the Outlawry, it is good reason that if the Defendant be taken at the Suit of the King, that as the King shal have benefit by the suit of the party, so the party should have some benefit by the suit of the King.

Resolved by the Court, that when he was taken by the Capias utla­gatum issuing out of the Kings Bench, he shall be in execution for the Plaintiff presently after the Arrest, if the Plaintiff will, although his body was never brought into the Court, and although the Court did not commit him in execution for the party.

Note, that in all Cases when the Defendant may have a Capias ad satisfaciendum, and the party Defendant is taken by a Capias pro fi­ne, there the Defendant is in execution presently, if the Plaintiff wil without any Prayer of the party, but when the Plaintiff hath Iudg­ment, and lets pass his time, so that he cannot presently neither by Capias nor by Fieri facias, but is driven to his Scire facias, there if the Defendant be taken by a Capias pro fine, the Plaintiff must pray that he may remain in execution for him, but this cannot be done without such Prayer. Vide 5. Rep. Frosts Case, 22. Assise 74. If one condemned for a Disseisin, with force, or fees be taken for the Fine, yet he shall not go at large if the party prayes that he may remain for his execu­tion: and in 11. H. 7. 15 when the party may have execution without a Scire facias, the execution for the King shall be prayed for the party, and it is not materiall whether there were a Capias in the Originall, but otherwise if it be after a year. 2. Rich. 3. If one be taken for a fine to the King within the year, and the King pardons him, yet he may remain for the party. And so in this Case I conceive, that Gilbert was in execution for the party, and if he was not, yet the Plaintiff hath proved him in execution, from whence he escaped by the default [Page 8] of the Defendant, so this Action doth well lye. Also the Plaintiff doth charge the Defendant with an escape, 13. April, 18. Jacobi, and the Defendant pleads an escape the 27. Febr. 16. Jacobi, which was a year and two daies before the escape alledged by the Plaintiff, to which the Defendant hath made no answer, and although he concludes that it was the same escape, which makes the plea good, where the time is not materiall, yet it is not in this case, for here it is admitted by the Defendant that the Plaintiff might have prayed him in execution so long as he remained in prison, but it may be he made his prayer af­terwards, viz. between the 27. Febr. 16. Jac. and the 13. April. 18. Jac. as it may very well be in this case, and then the averment of the De­fendant is nothing to the purpose. Also the Defendant saith, that he remained in Prison from the twelfth of February, 15. untill the seven and twentieth of February, 16. Jacobi. during which time the Plaintiff did not pray him in execution, in which case the day is excluded by this word Quousque.

Crook contra, Who said, that the Declaration was insufficient, for it ought to have been Tam pro Domino Rege quam pro seipso, be­cause here is a contempt to the King: But upon full debate of the Case, and upon shewing a President to the Court which was Plt. Jacobi Rot. 308. in the Common Pleas, between King and Monlenax, where the Declaration was for the party onely, and all the Prothono­taries did certifie the Court, that the greater part of Presidents of such Actions brought in the Common Pleas, were for the party only, and not Tam pro Domino Rege quam seipso, whereupon it was ad­judged that it was good either way;Judicium. and Iudgment was given for the Plaintiff. And note that in this case the Iudgment was Quod De­fendans sit in misericordia, and not Quod capiatur, vide 27. Assise 11. 42. Assise, 17. Dyer 238. 40, & 41. Eliz. New Book of Entries, 44, & 45.

Bassett against Jefiock and Johnson.

IN an Ejectione, the Iury gave a speciall Verdict to this effect: That Queen Elizabeth was seised in fee in Jure coronae of the Man­nor of Watton in the County of York, and that King James the 15. Martii. 2. Jac. did grant the same to William Brown and Robert Knight, and their Heirs, who the twenty seventh of April, 3. Jac. did bargaine and sell the same to Michael Feilding and his heirs, who entred and died seised, and after whose death the same descended to Basill Feilding as his Brother, who made a Lease to the Plaintiff.

Bridgman, It seemeth to me that the Plaintiff hath made a good Title: But it was objected, that there was no good Title, for that it is not found that the Queen died seised, or that the Lands descended to the King.

But it was answered, that when the Queen was seised in Fee in Jure Coronae, that shall be intended to continue, untill the contrary be shewed: for when an Estate of Inheritance is once alledged, it shall be intended still to continue till the contrary be shewn. Plow. Com. 193. 43 1. and 202.

Judicium.And afterwards, viz. 19. Jacobi, Iudgment was given for the Plaintiff, without any argument at the Bench.

Trin. 19. Jac. Samborne against Harilo.

IN an Action of Trespasse, for that the Defendant 10. Octob. 44. E­liz. the Plaintiffs free Warren at Mouldford, in certain places there called Harecombe, Harcombe Coppice, and the Down, did break and enter, and did therein hunt without the license of the Plaintiff, and three Hares and three hundred Conies did take and carry away. Continuando, as to the said Hunting and taking and carrying away the said Hares and Conies from the said tenth day of October, to the first of November.

And further declared, that the tenth of April, 1. Jac. the Defendant the said Warren in the said places did break and enter, and therein, (without the license of the Plaintiff) did hunt, and twenty Hares did take and carry away, continuing the said hunting untill the first of March next after, &c.

And further declared, that the tenth of April, 2. Jac. the said Defen­dant the said Warren in the said places did break and enter, and therein without the license of the Plaintiff did hunt, and forty Hares and four hundred Conies did take and carry away, continuing the said hunting untill the first of March following, contra pacem, &c. & ad damnum, &c.

The Defendant as to the Vi & armis, and to the first Trespasse, (except the entring and hunting in the said place called the Down, and the taking and carrying away the three hundred Conies) pleaded not guilty. And as to the entry, hunting and carrying away the said Conies, he saith, that the said place called the Down, is and hath been time out of mind Communis fundus, containing by estimation two hundred acres of Land and Pasture, and that before the said tenth day of September, and before the said Trespasse, and at the said time, the Defendant was seised of a Messuage and six Yard Land, contain­ing a hundred and sixty acres called the Mannor of Southbery, in Mul­ford aforesaid, and that the Defendant and all those whose estate he hath in the premisses, time out of mind have had Common of Pasture in the said Down for 200. and 40. Sheep, Levant and Couchant upon the said Messuage and six Yard Land, and that the Defendant and all those whose Estate, &c. have used for preservation of the said Com­mon, as often as the said Common hath been oppressed and troubled with Conies, have used of custome to have liberty to hunt and to take the Conies: wherefore the Defendant the aforesaid time of the a­foresaid first Trespasse, and for preservation of the said Common from such oppression and diminution aforesaid, into the said Down did en­ter, and there hunted, and the said Conies did take and carry away according to the said custome, and continuing the said hunting all the said time.

And as to the second Trespasse, besides the entry and hunting in the said places called Harecombe, & Harecombe Coppice and the Down, and the taking and carrying away two hundred Conies, he pleaded not guilty. And as to the entry and hunting in the said places, &c. he saith, that the said places called Harecombe, and Harecombe Coppice, are Woodland, containing by estimation ten acres, and that he was seised in Fee of the said Messuage and six Yard Land, and made the [Page 10] same prescription as aforesaid, for all his Horses, Cowes, Heifers, Bullocks, and two hundred and forty Sheep levant and couchant up­on the said Tenements, viz. for the Horses, Cowes, &c. at the Feast of S. George, and from that time, untill the Corne growing in the Feilds of Moulford were carried away, and after the Corne carried a­way for the Sheep, untill the fourth of March next after, and made the former prescription for the Sheep in the Down; And the same pre­scription also for hunting and taking away the Conies as abovesaid, and so did justifie the taking of the said two hundred Conies.

And as to the third Trespasse (besides the entry and hunting in the said places, and the taking and carrying away of the said four hundred Conies) he pleaded not guilty, and as to this plea he made the same prescription as before, upon which plea the Plaintiff demurred in Law.

And if this matter pleaded in Bar was sufficient to bar the plain­tiff of his Action was the question. And it seemeth to me that there is nothing in the Defendants plea to hinder the Plaintiff from ha­ving Iudgment. And the better to argue upon this matter I will first endeavour to shew what interest a Commoner hath in the Soile, and what things he may do upon the Soile, for preservation of the said Common.

2. Whether this be a good usage and custome to enable the Defen­dant to hunt and kill Conies in the Plaintiffs free Warren.

And as to the first, I conceive that he that hath Common in ano­thers land, hath nothing at all to do with the Land any more then a meer stranger, but only to put therein his Cattel, and to let them feed there with their mouths, and it is not his own Common until his Cat­tel have fed there. 14 H. 8. 10. The Owner of a Common cannot grant the Common to anothers use? Et 27 H. 8. 12. A Praecipe does not lye of a Common, for it is not my Common untill my Cattell have ea­ten of it, and therefore that which another hath is not mine, therefore I cannot have a Praecipe against him who hath not that which I de­mand: and in the 22. Assise 48. and 12. H. 8. 2. If a man hath Common in another mans Soile, and a stranger puts in his Cattell, there the Commoner shall not have an Action of Trespasse, for although he hath Common, yet the Herbage doth not belong to him, neither can a Commoner do any thing upon the Soile which tends to the meliora­tion or improving of the Common, as to cut Bushes, Ferne, or such things which do much impaire the Common, neither can he make a Fence or Ditch to let out the water which spoiles the Common: But if he be utterly disturbed of his Common, he may have an Assise, or a Quod permittat; and if any damage or annoyance be made upon the Land whereby he loseth his Common, he may have an Assise.

And as the Commoner may not meddle with the Soile, so cannot he meddle with any thing arising out of the Land, or that doth grow, or is nourished by the same, otherwise then to have his Cattell to feed there, and therefore it is adjudged Mich. 5. Jac. that a Commoner can­not kill Conies there, but may bring his Action on the Case.

But I agree that a Commoner may distrain Cattell Damage fea­sant, because their being there is a damage not onely to the Owner, but also to the Commoner, and a Commoner may abate a Hedge or a Gate that hinders him from comming to his Common: wherefore I conclude this first matter that the plea, as to that, is utterly insuffici­ent [Page 11] by the Law, if there were not a speciall custome alledged by the Defendant. And therefore it is to be considered, whether this prescri­ption alledged by the Defendant to hunt and kill Conies there for preservation of his Common, be good or no.

And I conceive it is unreasonable and not good, because it is to the prejudice of the Owner of the Soile without any consideration.

And it is unreasonable for two causes, first, because it is too gene­rall, for the Defendant may hunt and kill as many Conies as he will, for he doth not claim to kill a certain number that do surcharge the Common, but generally (the Conies there.) Secondly, as this plea is, the Defendant makes himself his own Iudge to kill the Co­nies as often and when he pleases.

Also it is against Law, for it is to the destruction of the Inheritance of another, which no person can justifie by custome or prescription, unlesse for the benefit of the Common-weal 13 H. 8. 16. It is Law to pull down a House if the next house to it be on fire, and so the Suburbs of a Town may be pulled down in time of War, and if Enemies be on the Coast, it is good Law to come upon another mans Land, and make Bulwarks there; for the publick good is preferred before any mans private benefit.

But when it is only for the private benefit of a man it is other­wise, 43. Ed. 3. a. The Abbot said, that he was Lord of the Town of A. and did prescribe that when the Tenant ceased for two yeares, that he might enter untill he be satisfied his arreares. And it was held by the Court to be an ill custome to put a man out of his Inhe­ritance, yet is that more reasonable then this case, for the time when the Lord shall enter is certaine, and the time that he shall hold the Land is also certaine: and 19. Elizab. Dyer 357. A cu­stome that all Tythes let or granted for more then six yeares of Land in such a Towne, was held void by the Court, because it is contrary to reason and to the liberty of the estate of him that hath a Fee. And 9 H. 6. 44. B. Custome in a Leet, that if the petit Iury do make a false Presentment, and this found by the grand Inquest, they shall be amended: and it was held by the Court to be no good custome, and against common right, but if the custome were, that if the petit Iury concealed any thing, they ought to present them to be amerced, this may be a custome.

And to prove that Conies are part of the Inheritance, see Coke Rep. 7. in the case of Swans. But it may be objected that this usage may have a legall beginning, viz. That it was so agreed at the time of the grant, or creation of the Common.

I answer, That then it ought to have been specially pleaded, for else it shall not be so intended as it is proved in the 35 H. 6. 28. Simon Eyres case, where a Custome was pleaded in London, that if the goods of any man be pawned to a Citizen for a debt due to him, that he may detain them untill he be payed his debt; and it was urged because that it may be good to bind the Debtor, because it may be intended it be­gan by his own grant, but it was ruled that it shall not be so intended, unlesse it be specially alledged.

And that a man shall not be Iudge in his own case, is proved by 22. Edw. 5. 13. B. The Defendant pleaded that at another time he ac­counted to the Plaintiff in the presence of A. B. & was found in arrear, wherefore he was committed to prison, & there it was adjudged that the [Page 12] party himself could not commit him to Prison, and that an Action of false Imprisonment did lie against the Plaintiff. And Cook R. 8. Dr. Bonhams Case. And in the 5 H. 7. 9. B. If one prescribes, that if any Cattel be taken upon his Land damage feasant, that he may distreyn them, and put them into the Pownd, until amends be made according to his own will: this was held not good, because then he should be his own Iudg, which is against reason. And in the 19 Edw. 2. gard. 127. A Custom was alledged in Ipswich, that when an Infant could count and measure, that he should be out of Ward, and holden to be voyd. 13 Edw. the 3. where a Custom was alledged, that when one could count 12 d. and measure a yard of cloth, he may alien his Land: and did aver, that the De­mandant was of such age; but because he did not alledg the age in certain, it was adjudged against the Demandant. And Dyer 91. a. One grants to another all his Trees which may be reasonably spared, agreed that this was a voyd Grant for the incertainty. And in the 20 H. 7, 8. B. If Cestuy que use of a Mannor does bargain and sell 10 l. Land, parcel of the Mannor, no use is changed, for the incertainty.

Trinit. 18 Jacob. Ponesley against Blackman.

IN an Ejectment upon a Lease made by Richard Perriam the 19 of May 18 Jacobi, of a Messuage and Land in Thacham and Col­throp in the Parish of Thacham: Habendum from the Annunciation last past for three years, whereupon the Plaintiff entered and was possest, until the Defendant the 20 of May in the same year, did Eject him, ad dampnum, &c.

The Defendant pleaded Not guilty.

The Iury gave an Especial Verdict, viz. That before the Eject­ment, John Curre was seised in fee of the said Lands, and the seventh of January 10 Jac. for 300 l. did bargain and sell the same to William Perriam and his Heirs, upon Condition that if the said John Curre, his Heirs, Executors, or Assignes, should pay to the said William, his Heirs or Assignes, at the house of C. B. in Westminster, 300 l. in manner following, viz. 10 l. the 9 of July then next coming, 10 l. the 9 of January next after, which shall be in the year 1613. 10 l. the 9 of July 1614 10 l. the 9 of January next after, 10 l. the 9 of July 1615. 10 l. the ninth of January next after, 10 l. the ninth of July 1616. 10 l. the 9 of January next after, 10 l. the 9 of July 1617. and 210 l. the 9 of January next after: that then the Indenture should be voyd. Proviso semper, And it was agreed by the said In­denture, and the said parties, that the said William Perriam, his Heirs and Assigns, shall not take and intermeddle with the actual possession of the said Tenements, or with the receit of the Rents, issues, or profits thereof, until default were made of the payment of the said 300 l. or any part thereof, contrary to the limitation in the said Indenture.

And they found likewise, that the said William Perriam did not enter into the said Tenements.

And that afterwards, and before the first day of the payment, the said Curre did demise the said Tenements to William Dibley and Richard Carter by two several Demises, habendum for six years and an half, rendering Rent.

That the said Dibley and Carter, by vertue of the said several De­mises, did enter and take the profits during the said term, claiming nothing but by the said several Demises, and that they payd the Rents during, all that time to Curre, and that at the end of the said term they surrendered the Estate to Curre.

That 11 Octob. 16 Jacobi, William Perriam made his Will in writing, and thereby did Demise the said Tenements, &c. to Richard Perriam, and dyed.

That the said Richard Perriam the 19 Maii 18 Jac. did enter, and made the Lease to the Plaintiff, who entered and was possest, until the Defendant did Eject him.

That the said Richard Perriam was yet living.

But whether the Defendant were guilty or not, they prayed the advice of the Court, and if it seemed to the Court that he was guilty, then, &c.

It was argued on behalf of the Plaintiff.

That this agreement by Indenture, that the Bargainee shall not I meddle with the possession, is a Lease for years to the Bargainor.

Admitting it to be no Lease for years, yet is the Bargainor Tenant II at will; and when he makes a Lease for years, and the Tenant en­ters, he is a Disseisor; and then when the Bargainor enters, he is Tenant at will again, and so the Bargainee may very well De­mise the Land.

And as to the first point, to make a Lease, the Law does require but the agreement of the parties, that the Lessee shall enjoy the Land and take the profits, and it is not necessary to have any precise words of a Demise or Grant, as in 5 H. 7.1. by Frieux. If I make one Bayliff of my Mannor for certain years, and that he shall have the profits without interruption, this is a Lease for years.

But it was objected, that there is no express words, that the Bar­gainor Object. 1 shall have the Land or the profit, but onely that the Bar­gainee shall not have it.

But it was answered, that the words did amount to so much;Respons. for when the Land is sold to the Bargainee, by the Law he ought to have the possession and profits: but when by the same Deed it is agreed, that he shall not intermeddle with the Land, it follows that the Bargainor shall have it, for he had it before, and there was no­thing to exclude him but onely this Deed: and although by the Deed the Land is conveyed to the Bargainee, yet when by the same Deed it is agreed that he shall not have the possession, it follows that the possession shall remain in the Bargainor, in whom it was before the making of the said Deed, for no alteration is made thereof as to the possession. As in the 8 Assis. 34. one made a Feoffment, on condition that if such an act were not done, that the Land should return, &c. and the Feoffor re-entered for the condition broken: and there it was objected, that his entry was not congeable, because he must recover the Land by Action: but it was adjudged that his entry was good, and the same Law, if the words were, that for not performing, the Feoffor should retake the Land.

But it was objected, That it could be no Lease for the intertainty Object. 2 of the time.

It was answered, that notwithstanding it was a good Lease:Respons. for first, it is certain to continue until the time limited for the first [Page 14] payment, and if that be done, then it is a good Lease until the se­cond payment; and is like to the Case where one lets Land for a year, and so from year to year, as long as both parties shall please: this is a good Lease for one year, and for every year after, when he hath entered before any disagreement.

And, as to the second Point, it is clear that the Bargainor is in at the will of the Bargainee, because he enters by his agreement; and then when the Tenant at will makes a Lease for years, and the Lessee enters, he is the onely Disseisor; but if the Tenant at will infeoffs a stranger, then both are Disseisors by the Statute of Westm. 2. Cap. 25.

And in the 12 Ed. 4. 12 B. If Tenant at will makes a Lease for years, this is a Disseisin.

And the reason hereof is apparent; for the Tenant at will hath no Estate in the Land, and therefore he hath nothing to transfer to another. And in the 23 H. 8. B. If I let anothers Land for years, and the Lessee enters, he is a Disseisor: And 21 H. 7. 26. a. If Tenant at will makes a Lease for years, and the Lessee enters, this is a Disseisin to the first Lessor.

And if the Tenant at will be outed by the Disseisor, and re-enters, he hath reduced the Estate to the Lessor: as in the Lord Abergevenies Case, reported briefly by the Lord Dyer 173.

Judicium.And after many arguments in this Case, Hillar. 20 Jacob. the Court agreed that the Demise was good; and Iudgment was given for the Plaintiff.

Periman against Pierce and Margaret his Wife.

TEnant in Socage had issue by his first Wife, Joan, Elizabeth, and Agnes, and Alice and Elizabeth by his second Wife, Kathe­rine, Mary, William, and Joan by his third Wife; and by his Will did Devise his Land to Joan the younger for her life, rendering 13 s. 4 d. Rent to William, the remainder to William in Tayl, the re­mainder to Elizabeth and Mary for life, the remainder propinquo sanguinitatis of the Devisor for ever. William dyes without issue, Joan the younger dyes without issue, Elizabeth had issue William Stokes, and dyes; Mary had issue William Pierce, and dyes; Joan the elder dyes, having issue John Periman and William Periman; Agnes and Alice dye without issue: John Periman had issue, John Periman the Lessor, and dyes; Elizabeth and Mary dye, Katherine dyes with­out issue, Elizabeth had issue George Dean and John Dean; Elizabeth deviseth her Land to John Dean and his Heirs, and dyes: John Dean hath issue John Dean, and dyes: the Lessor enters, and makes a Lease to the Plaintiff, who enters and is ejected by the Defendants, by commandment of the said John Dean the son, upon which the Plain­tiff brought an Ejectment.

And it seemeth to me that judgment ought to be given for the Plaintiff for all the Land, or at least for part thereof.

And therefore in the first place I conceive, that when William the son dyed without issue, the remainder in fee did vest in John Perri­man, who was the eldest son of Joan the elder, who was the eldest daughter of the Devisor: for although the Devisor had many [Page 15] daughters, yet his intent appeared in the Will to a single person, and not to divers: also it appears, that he doth not intend that this re­mainder should vest in William his son, for he deviseth to him a Rent during the life of Joan the younger, and afterwards an Estate. Tail cannot be in Joan the younger, or any of her issues, because that an express Estate for life is limited to her; nor in Elizabeth or Mary, for he deviseth a remainder to them for life; nor in any other of his daugh­ters, for then he would have named them either by their proper names, or as his daughters, and not by such circumlocution as is pretended in this Case.

Also, the words of Remainder in fee cannot extend to those daugh­ters, for they are proximae consanguinitatis, which does clearly exclude his own sons and daughters, for they cannot properly be termed to be of consanguinity of the blood of the father; as it is said in Sir William Herberts Case, Cooks Rep. 3. that filius est pars patris, and this is proved by the usual pleading of a Descent; for if the Plea be by any, except son or daughter, the form is to say, That the Land descends to him as Cosin and Heir, and shall shew how; but if by the son or daugh­ter, then to plead as before. And 30 Assis. 47. Land was devised to one for life, the remainder to another for life, the remainder propin­quioribus haeredibus de sanguine puerorum of the Devisor: there it is agreed that the sons and daughters are excluded by that Devise.

And so here in this Case, neither William the son, nor any of the daughters of the Devisor, can take any thing by this Devise; for they cannot be said, de Consanguinitate de sanguine of the Devisor, but the Issues of the Children of the Devisor are comprized within these words. And then I conceive that the limitation being in the singular number, viz. proximo consanguinitat. all the issues of those Children shall not take, but one onely, and that as I conceive shall be the eldest son of the eldest daughter of the Devisor, which was John Periman, father of the Lessor of the Plaintiff; as in the 20 H. 6. 23. In an Ac­count, supposing the Defendant to be his Receivor from the Feast of St. Michael, it shall be taken to be the principal Feast of St. Michael the Archangel, and not the Feast of St. Michael in Monte Teneb. And 13 H 4. 4. 21 H. 68. 37 H. 6. 29. If father and son be of one name, scil. of J. S. If J. S. be named generally in a Writ, Recove­ry, or Deed, it shall be intended the father, for that he is most worthy. And so Pladwels Case in this Court, Mich. 38 and 39 Eliz. If a woman hath a Bastard and two legal issues, and Land be given to one for life, the remainder to the eldest issue of the woman, the eldest legal issue shall take, and not the bastard, although he be the eldest issue, for ge­neral words shall always be taken in the most worthy sence.

And so here, the Devisor did dispose of his Estate to Joan the youn­ger, rendering Rent to William his son, the remainder to William in Tail, the remainder to two of his daughters, scil. to Elizabeth and Mary for life, the remainder proxim. consanguin. &c. in fee: By which words it is apparent, that the Devisor intended, that for the default of the issues of William, and after the death of Elizabeth and Mary, the Estate should remain to one who was next of blood to him, and that is John Periman the eldest son of his eldest daughter.

But admitting that all the issues of the daughters shall be in equal degree to take by this remainder, as well as the eldest son of Joan the eldest daughter; yet I conceive that those daughters, who had an Estate devised to them by Will, are excluded. Cooks 8 Rep. 95. B. [Page 16] Always the intention of the Devisor expressed in his Will, is the best Expositor and Director of his words: and therefore if Land be devised to one in perpetuum, this shall pass a fee, although it be otherwise in a Grant: So if one deviseth Land to another, to dispose of, or sell at his pleasure, this is a fee to the Devisee. Litt. 133. 19 H. 8, 9. B. And so in our Case, the intent of the Devisor appears, to dispose of his Land among his Children and their issues: as in Trin. 38 Eliz. Ewre and Heydons Case. Heydon was seised of a Messuage in D, and of three houses and certain Land in Watford, did devise his Messuage in D, and all his Land in Watford; it was judged the houses in Wat­ford did not pass, in regard of the express mentioning the houses in D. and this was affirmed in a Writ of Error.

Edmund Meskin against John Hickford, Admini­strator of Henry Machin.

IN an Audita Querela; because that the 11 Ed. 1. it was Enacted, That in regard that Merchants, which heretofore had lent their goods to divers persons, were fallen into poverty, because they had not such speedy remedy provided for them, for the Recovery of their Debts: Ac ratione inde multi Mercatores desistebant venire in hanc terram cum Merchandizis suis, ad damnum tam Mercatorum quam totius Regni, quod Mercator qui volet esse securus de debito suo, causaret de­bitorem suum venire coram Majore Londin. vel Eborae. sive Bristol. vel coram Majore & uno Clerico quem Rex appunctuaret pro eodem ad cognoscendum debitum & diem solutionis, & recognitio irrotulat. foret in Rotulo cum manu dicti Clerici qui esset Notarius. Et ulterius quod dictus Clericus faceret de manu sua propria scriptum obligatorium, ad quod sigillum debitoris apponetur cum sigillo Regis quod foret praemissis pro eo proposito, quod quidem sigillum remaneret in Custodia Majoris & Clerici supradict. Et si debitor non solveret ad diem ei limitat [...]m, Creditores venirent coram dictis Majore & Clerico, cum scripto suo ob­ligatorio, & si compertum foret per Rotulam & scriptum obligatorium quod debitum cognitum fuisset, & quod dies solutionis esset expirat. Major immediate causaret bona mobilia (Anglice, the moveables) debi­toris, vendi in tantum (Anglice, as far) quantum debitum in se attingat ad appreciationem proborum hominum secundum modum bonorum mu­nicipalium (Anglice, Borrough-goods) devisabilium, quousque plena summa debi [...]i & monetae foret creditori plenarie persoluta, prout per eundem actum inter alia plenius apparet, cumque etiam per quendam alium Actum in Parliamento praedict. quondam Regis Edvardi primi apud Westm. in Comitat. Midd. post festum Paschae anno regni sui tertio decimo, tent. edit. inter alia pro declaratione quorundam articulorum in praedicto Statut. de Acton Burnel mentionat. ordinat. & stabiliter existat, quod Mercator propter assurantiam debiti sui causaret debito­rem suum venire coram Majore Londini, vel coram alio Capitali Guar­diano ejusdem civitatis, aut ullius bonae villae ubi Rex appunctuaret; aut coram Magistro aut Capitali Guardiano, seu alio probo homine abinde electo & jurato, quando Major vel Capitalis Guardianus ad illud non potuisset attendere, & coram uno Clericorum quos Rex inde assignaret quando ambo non potuissent esse attendentes cognoscere debitum & diem solutionis, & Recognitio irrotulat, foret de manu unius Clerico­rum praedict. qui esset notarius; ac Rotulus foret duplex, unde una [Page 17] pars remaneret cum Majore vel Capitali Guardiano, & altera pars cum Clerico, qui inde primus foret nominat. & ulterius unus dictorum Cle­ricorum scriberet de manu sua propria scriptum obligatorium, ad quod sigillum debitoris apponeretur cum sigillo Domini Regis, quod quidem sigillum foret de duabus preciis quarum una precia remaneret in custodia Majoris vel Capitalis Guardiani & altera precia in manu Clerici praedict. Et si debitor non redderet debitum ad diem ei inde limitat. tunc Mercator veniret coram Majore & Clerico cum scripto suo obligatorio, & si comper­tum foret per rotulum vel scriptum obligatorium quod debitum cognitum fuisset, & dies solutionis inde limitat. foret expirat. Major vel Capitalis Guardianus causaret corpus debitoris (si laicus esset) capi, quandocunque contingeret in potestatem suam venire, & eundem debitorem Prisonae vil­lae committere, si aliqua Prisona esset in eadem villa, & ibidem remane­ret ad ejus propria custagia quousque pro debito aggreasset, & man­datum fuit quod Custos Prisonae villae, retineret illum super delibera­tionem Majoris sive Capitalis Guardiani; & si Custos non reciperet eum, tunc pro debito foret responsibilis, si unde haberet. Et si unde nihil ha­beret, tunc ille qui commisit Prisonae ad ejus custodiam, responderet. Quodque si debitor per Majorem vel Capitalem Guardianum non potu­isset invenire, tunc illi, seu eorum alterius in Cancellario sub sigillo Re­gis recognitionem ejusdem debiti returnarent, & Cancellarius diriget (Anglice, shall award) Breve Vicecom. in cujus Comitat. debitor fore contigerit, ad corpus ejus (si laicus esset) capiend. & eum in Prisona salvum custodiend. quousque pro debito aggreasset. Et infra quarterium unius anni postquam captus foret, terrae ejus ei deliberarentur sic quod pro profima inde debita, levaret & solveret, quodque ei licitum foret durant. eodem quarterio, terras & tenementa sua vendere exoneratione debito­rum suorum, & venditio sua foret bona & effectualis, quodque si intra quarterium primum post quarterium illud expirat. non agrearet, tunc tota terra & bona debitoris Mercatori pro rationabil. extent. deliberaren­tur eodem tenendum quousque debitum foret Plenarie levatum, & nihilominus corpus remaneret in Prisona ut supradictum est, & Mercator eodem debitori panem & aquam inveniret, idemque Mercator seisinam in terris & tenementis illis ei deliberat. haberet, quod Breve Novae dis­seisinae si extraponeretur manutener. ac etiam Redisseisina de libero tenemento, tenendum sibi & assignatis suis quousque debitum foret per­solutum; quodque tam cito quam debitum foret levat. corpus debitoris cum terris suis, deliberat. foret, quodque in talis brevibus quos Cancella­rius dirigeret (Anglice, shall award) mentio fieret quod Vicecomes Justiciariis de utroque Banco certificaret ad certum diem quamlibet, mandatum Domini Regis performasset, ad quem diem Mercator foret coram eisdem Justiciariis si factum non foret agreamentum, & si Vice­comes non returnavit Breve, vel returnavit quod Breve tarde venit, aut quod ille Ballivis alicujus franchisae direxisset, Justiciarii facerent prout in Statut. de Westm. continetur, quodque si Vicecomes returnaret quod debitor invenire non potuisset, vel quod Clericus esset, Mercatores ha­berent brevia omnibus Vicecomitibus ubi terras haberet, & quod omnia bona & terras debitoris pro rationabili extent. deliberarent tenendum sibi & assignatis suis in forma praedicta, & haberet Breve cuicunque Vicecomiti quem voluisset ad corpus ejus (si laicus esset) capiendum, & in forma praedict. retinend. & Custos Prisonae caveat quod pro corpore responderet vel pro debito, quodque postquam terrae debitoris Merca­tori deliberarentur debitor licite potuisset vendere terras, & pro eo quod Mercator nullum dampnum approvationum (Anglice, approvements) [Page 18] habuit, & Mercatores semper allocarentur pro damnis suis & omnibus Custagiis, laboribus, sectis, dilationibus & expensis rationabilibus, & quod si Debitor inveniret fidemsores post diem, ordinatum foret in omnibus sicut dictum est de principali debitore quoad arrestationem corporis, de­liberationem terrarum, & alias res; quodque cum terrae debitorum Mer­catori deliberarentur idem Mercator haberet seisinam terrarum quae fue­runt in manubus debitoris die recognitionis facti in quorumcun (que) manu­bus postea devenirent, sive per Feoffamentum vel aliter, & quod post debitum persolutum terrae debitoris & exit. inde per Feoffamentum re­turnarent tam Feoffatus (Anglice, the Feoffee) quam aliae terrae debi­toris, quodque insuper si debitor vel fidemsores ejus obierent, Mercator nullam haberet authoritatem ad corpus haeredis capiendum, sed terras suas haberet, si aetatis foret, aut quando erit plenae aetatis quosque quantita­tem, Anglice the quantity, & valorem debiti de terris levasset prout per eundem actum (inter alia) plenius apparet. Cumque etiam quidam Richardus Davies de Mitton infra parochiam de Breeden in Com. Wigorn. generosus post editiones seperalium actuum praedictorum, scil. ultimo die Junii anno Regni Dominae Elizabeth nuper Reginae Angliae quadra­gesimo tertio apud Civitatem Glocestriae in Comitat. Civitatis Gloce­striae, per quendam Henricum Machen generosum nuper defunct. in vita sua, ductus fuisset coram Johanne Thorne & Gulielmo Hill tunc Vice­comitibus & Balivis ejusdem Civitat. custodibus Majoris precii sigilli Mercatoris intra eandem Civitatem, & Thoma Atkins Armigero, tunc Clerico ad recognitiones debitorum intra Civitatem illam accipiend. de­putat. Custodit. minoris precii ejusdem sigilli & ad tunc & ibidem co­ram eisdem Vicecomitibus Ballivis & Clerico per quoddam scriptum suum obligatorium tunc & ibidem recognitum, sed secundum formam Statuta­rum praedictarum non confect. neque format. gerens dat. eodem die & anno devenisset tent. & obligat. praefato Henrico in quingentis libris le­galis monetae Angliae, quod quidem scriptum sequitur in haec verba.

Noverint universi per praesentes me Richardum Davis de Mitton in parochia de Breeden in Comitatu Wigorn. generos. teneri & per hoc praesens scriptum de Statuto Mercatorium firmiter obligari Henrico Ma­chen de Crickley in Comitat. Civitatis Glocestriae generos. in quingen­tis libris bonae & legalis monetae Angliae, solvend. eidem Henrico Ma­chen, aut suo certo Attornato, Executoribus, & Assignatis suis: Et si non fecero, volo & concedo quod currant supra me, Haeredes, Execu­tores, & Administrator. meos, districtiones & poenae praemissae in Sta­tut. edit. in Parliamento Domini Edwardi primi quondam. Regis An­gliae apud Acton-Burnel, Westminst. pro d [...]bitis Mercatorum recupe­rand. Et facta fuit haec recognitio in Civitate Glocestriae coram Johan­ne Thorne & Gulielmo Hill Vicecomitibus & Ballivis Civitat. Glocest. praedict. custodibus Majoris precii sigilli recogn. Statut. Mercatorum, ac Thoma Atkins, Armigero, Clerico Dominae Reginae & custode mino­ris precii sigilli Recogn. Statut. praedict. ad Recognitiones debitorum apud Civitatem Glocest. praedict. secundum formam Statuti capiend. deputat. In cujus rei testimonium huic praesenti scripto ego praefatus Richardus Davis sigillum meum apposui, & sigillum praedictum ad Recognitiones secundum formam Statuti praedict. ordinat. pro Majore securitate inde praesentibus apponi procuravi. Dat. apud Glocest. praedict. ultimo die Julii anno Regni Dominae Reginae Elizabethae, Dei gratia Angliae, Franciae, & Hilerniae Reginae, Fidei Defensoris quadragesimo tertio, ac Anno Domini 1601.

Garth against Ersfeild Knight in Cancellar. In a Scire facias to have Execution of a Recognizance of eight hundred pounds acknowledged in the Chancery by Sir Thomas Ersfeild the Father of the Defendant the third of May, 14. Jac.

The King against Sir John Byron Knight.

IN a Quo Warranto, for that the Defendant for a year past, hath used and yet doth use without any Warrant, within the Mannor of Cols­wick in the County of Nottingham, within the bounds of the Kings Fo­rest of Sherwood, and within the reguards of the said Forest; to have a Park within the said Mannor, with a Pale, Hedge, and Ditch inclosed, being two hundred acres of Pasture, and a hundred acres of Wood with­in the said Park, Et ad venandum, capiendum, occidendum & apportan­dum in the said Park, and two hundred acres of Pasture, and a hundred acres of Wood omnes & omnimodas damas Domini Regis Forrestae suae praedict. in parcum praedict. & praedict. 200. acr. pasturae & 100. acr. Bo­sci aliquo tempore venand. & occidend. Ita quod Forrestini Domini Re­gis forestae pra [...]dict. nec aliquae aliae personae quaecun (que) intromittantur ad venandum & fugandum intra parcum praedictum & 200. acr. pasturae & 100. acr. Bosci sine licentia defendentis.

The Defendant pleaded that John Biron Knight, the Defendants Grandfather was seised in Fee of a Messuage of a hundred acres of land, two hundred acres of Meadow, three hundred acres of pasture, and a hundred acres of wood in Colwick, in the County aforesaid, now and time out of mind called the Mannor of Colwick, within the meets and bounds of the For [...]st aforesaid. And that the said John Byron the Grand­father, and all those whos [...] Estate the said John Byron hath in the afore­said house, and a hundred acres of land, two hundred of Meadow, and three hundred of Pasture, and a hundred of Wood in Colwick aforesaid, have had, held, and have accustomed to have in the aforesaid two hun­dred acres of pasture, and a hundred of wood, parcel of the aforesaid Te­nements called the Mannor of Colwick, belonging to the said Mannor of Colwick, enclosing, ditching, and hedging at their will and pleasure, with all liberties, priviledges, and Franchises to the said Park belon­ging, and in the said Park from the time aforesaid have used to have and to keep Deer, and from time to time to constitute and appoint a Keeper of the said Deer in the said Park, who from the aforesaid time have used to keep the same, ac ad venandum, fugandum, occidendum, capi­endum & asportandum omnes & omnimodas damas in eodem parco de tempore in tempus existentes ita quod nullus forestarius Domini Regis, Forestae praedictae nec aliquae aliae personae quaecun (que) intromittantur ad ve­nandum & fugandum in parco praedicto sine licentia praedicti Johannis avi. And set forth that the said John the Grandfather died seised, whereby the said Mannor, &c. descended to Sir John Byron his Son. And that Hil­lary 3. Jacobi, a Fine was levied between Sir Peter Leigh and other Plaintiffs, and Sir John Byron the son Defendant of the said Tene­ments, to the use of the said Sir John for life, the remainder to the De­fendant in tail.

And that the seventeenth of December, 10. Jac. did let the Premisses to the Defendant for eighty years, if the Lessee should so long live, wherby the Defendant the 26. Mar, 11. Jac, was and is thereof possessed, & did aver that the Mannor of Colwick in the information, and the said Messuage, a hundred acres of Land, two hundred of Meadow, three hun­dred of Pasture, and a hundred of Wood to be the same, and did also aver the life of the Lessor.

The Attorney Generall for the King did reply, that before the infor­mation sc. 9 Octobr. 19. Jacobi, and long before, and continuing after untill the exhibiting of this information, the Defendant, the Park and Tenements aforesaid, with Ditches, Hedges, and Fences had so sleight­ly inclosed, that the Kings Deer of the aforesaid Forest for defect of sufficient inclosing of the Park and Tenements aforesaid, through the default of the Defendant did enter, and the Deer of the King into the said Park and Tenements aforesaid, for the cause aforesaid, entring, the Defendant did very unjustly kill the said Deer in the said Park and Tenements aforesaid.

The Defendant did maintain his Bar, and traversed without that, that the Defendant the Park and Tenements aforesaid with such sleight Fences, Hedges, and Ditches inclosed did keep the same, Quod Damae Regis de forresta praedicta de tempore in tempus intra tempus praedictum in parcum & tenementa praedicta pro defectu sufficientis inclu­surae parci & tenementorum praedictorum in defectu defen. intraverunt, absque hoc quod Defendens Damas Regis de forresta praedicta in parco & tenementis praedictis pro defectu sufficientis inclusurae parci & tene­mentorum [Page 25] praedictorum, in defectu defendentis minus, juste interfecit modo & forma, prout, &c.

Whereupon the Attorney demurred.

And I conceive that Iudgment ought to be given for the King. First, Because the plea in Bar and the Rejoynder made by the Defendant is altogether insufficient for divers causes. Secondly, As to matter in Law.

And as to the first, The Quo Warranto doth suppose that the Defen­dant did use the liberties there mentioned within the Mannor of Col­wick, being within the meets and bounds of the Forest of Sherwood, and within the Reguards of the said Forest, and the Defendant did know this to be within the meets and bounds of the said Forest, but does not answer whether it be within the Reguards or not, for it may be within the meets and bounds of the said Forest, and yet not within the Re­guards: as if the Mannor were disforested by Carta forestae, because it was a Subjects Mannor and not the Kings, yet it remains within the meets and bounds of the said Forest, but not within the Reguards, for now by the disforesting it is made purlue, and not subject to the Re­guards and Lawes of the Forest, as to the Owner of the Mannor. Vide Carta Foresta fol. 1. and yet notwithstanding this Statute, if the King had granted this Mannor to be free of the Reguards, or out of the Re­guards, yet is it still within the meets and bounds of the said Forest.

Secondly, The Dendant makes Title to the liberties whereof Sir John Byron his Grandfather was seised in Fee, viz. of a Messuage, a hundred acres of land, two hundred of Meadow, three hundred of Pasture, and a hundred of Wood in Colwick, now and time out of mind called the Mannor of Colwick, Quodque ille & omnes illi Quorum statum idem Jo­hannes habuit in tenementis praedictis, habuerunt, tenuerunt, & habere con­sueverunt in praedictis 200. acris pasturae & 100. acris bosci parcellis prae­dictorum tenementorum, vocat. mannerium de Colwick, praedictum par­cum, tenementa praedicta, vocat. mannerium de Colwcik, spectant. & pertinent. &c.

So that the Defendant doth not prescribe, but doth alledge only that Sir John Byron, and those whose estate he hath, have used to have a Park, the which is no Title to the Park, for that ought to be time out of mind.

Thirdly, The Defendant doth claim to have a Park in the aforesaid two hundred acres of pasture, and a hundred acres of wood, whereas there is no speaking of two hundred acres of pasture before, and there­fore he ought to have said, in two hundred acres of pasture parcell of the said three hundred acres.

Fourthly, The Defendant doth not answer to the killing of the Kings Deer of the Forest, but doth only justifie the killing of all Deer time out of mind being in the said Park.

Fifthly, The Rejoynder is a manifest departure from the Bar, for in the Bar he claimeth to have a Park ditched and hedged, Per volunta­tem eorum inclusum, so that by this pretence he may keep the Park with such low Hedges as he will, and yet in his Rejoynder he doth tra­verse, absque hoc, that he kept the Park adeo parvis sepibus & Fossatis, quod Damae Regis de foresta praedicta in parcum praedictum pro defectu inclusurae intraverunt, & absque hoc, &c. So that the Defendant by his Rejoynder doth make an Issue upon that which he doth justifie in his Bar, and doth, upon the matter, deny in his Rejoynder, the matter al­ledged by him in his Bar.

And, as to the matter in Law, I conceive that the Defendant cannot prescribe to have a Park in such manner as he pretendeth, for that such prescription is quite contrary to the nature of his Royall Franchise of his Forest, and is to the destruction of it, for a Forest is a Royall Fran­chise, so that regularly none can have it but the King, as it was ad­judged in this Court in a Quo Warranto against Humphrey Bigges. And Manwood fol. 1. A Forest is a certain Territory of Ground pri­viledged for wild Beasts and Fowles of the Forest to rest and abide in the safe protection of the King, for his Princely delight and pleasure, and doth consist of four things. 1. Vert. 2. Venison. 3. Particular Laws and Priviledges, 4. Certain Officers.

But by this pretence of the Defendant, the Forest of the King is priviledged for wild Beasts to rest in protection of the King, but they are subject to being destroyed by the Defendant; for by such pretence none can enter there but he or his Keepers. And I conceive that no body can pretend to have any profit or pleasure in the Forest, which tends to the destruction of the Forest, and that is the reason that one cannot pre­scribe to have Common in a Forest, for Sheep, Geese, Goats, or Hoggs, for to suffer them to Common there, is Ad magnum nocumen­tum ferarum forestae: and such a prescription the Defendant maketh, which is not only Ad magnum nocumentum, but to the utter destruction of the Forest: And if it be objected, that this Park claimed by the De­fendant is but a little part of the Forest, this is no answer; for as in the Case of a Common, no man may prescribe to have Sheep, &c. in the Forest, so cannot he in any part of the Forest, and if the Defendant may prescribe to have such an irregular Park in part of the Forest, so may others claim such like prescriptions in other parts of the Forest, and so the King shall lose all the Franchise of his Forest, and the De­fendant may make his Fence or Ditch so low without-side, and so high within, that the Kings Deer cannot get out again when they are come in, and so this Park shall be in the nature of a Trap to catch the Kings Deer.

And further, he that will prescribe to have any common profit or pleasure in the Freehold or Inheritance of another, ought to make his prescription in such manner, so that he must leave the residue of the pro­fits to the Owner, and cannot utterly exclude the Owner, and there­fore if one doth prescribe to have all the Herbage, Pannage, and Pro­fits of the Land of I. S. no man can conceive that this prescription is good. Neither can a Commoner prescribe that the Lord of the Soile cannot put in any Cattell into the Land. But in our case the very Fran­chise of the Kings Forest doth consist of Vert, Venison, Lands, and Of­ficers of the Forest, for the King may have a Forest, although he hath no Land there.

And in the Commentaries 332. If a Mannor within the Forest of Waltham do escheat to the King, and the King grants the Mannor to one in fee, yet shall not he have the liberty of the Forest. And the same Law is where the King grants all the Land which he hath in the Forest.

But notwithstanding I agree that one may have a Park within a Fo­rest by prescription or by grant, but then the same ought to be kept so in­closed, that the Beasts of the Forest cannot enter into the Park, which if not done, it is a forfeiture of the liberty of the Park, and so it is if he have a Salterie, or Deer-leap, for the nature of a Park is to be inclosed: and in the 10. H. 7. 6. it is said, that a Park consists of Soile, Inclo­sure, and Game, and in the 15. Ed. 3.

closure and game. And in the 15 Edw. the 3. Thomas Earl of Lan­caster, Lord of a Forest, did grant leave to one John Harrington to make a Park within the said Forest, and there it is adjudged, that if the Grantee does so sleightly inclose the Park, so that the Forest-beasts may get in there, that it is a forfeiture, and the Lord of the Forest may enter and take the Deer.

But by the pretence of the Defendant, the King shall not have so much power in this Land, being in the midst of the Forest, as he hath in the Lands of any of his Subjects which do lie without the Forest: for if Forest Beasts stray or wander into the Land of a Subject, out of the Forest, the Foresters may enter into this Land, and rechase them into the Forest again.

Crocker against Kelsey.

HVsband and Wife, Tenants in Tail of the Gift of the Husband, the remainder to the Husband in fee: The Husband dyes, the Son and Heir of the Husband and Wife does levy a Fine with pro­clamations, to the use of him and his Heirs; the Wife does let a Lease of the Land for 21 years, and dyes; the Son deviseth his Land to E and his Heirs, and dyes.

And, Whether this Lease made by the Wife were good to binde the Devisee? was the Question.

And I conceive that the Lease is good: For, although that by the Fine the Estate-tail is barred, as to the Conusor and all his issues, yet does the Wife remain Tenant in Tail, as before: and therefore this Lease made by her is a good Estate, derived out of her Estate-tail, and shall binde all except the issues in Tail, who may claim per for­mam Doni: And so is it in the 33 H. 8. Dyer 51. B. Tenant in Tail, before the Statute of the 27 H. 8. does make a Feoffment to the use of himself in fee, and then he and his Feoffees make a Lease for years, ren­dering Rent, and then is the Statute made; the Tenant in Tail dyes, and then the issue aliens by Fine before any entry or receit of the Rent, and holden by all the Iustices, except Sanders, that the Alienee shall not avoyd this: but otherwise of a Rent granted. And, sup­pose the Fine had not been levyed by the issue, he shall not avoyd the Lease without entry; and if he had aliened after the death of his Mother, and before entry, the Alienee should never avoyd the Lease. And in the 29 Assis. 51. and the Comment. 557. Tenant in Tail ac­knowledgeth a Statute-Merchant, the issue is attaint of Felony, and pardoned; the Tenant in Tail dyes, the issue enters, and the Conusee sues out Execution: And because the issue was disabled to inherit the Estate-tail, therefore he had it as an Occupant, and so it was subject to the Execution. And, although the remainder in Fee does pass by way of interest by the Fine, yet that cannot come in possession so long as any issue in Tail is living: and therefore if a stranger had entered after the death of the Wife, the Son could not have had a Formedon in the remainder, for that must suppose the death of the Donees in Tail without issue, the which cannot be in our Case. Comment. 560. Au­stens Case. Sir Thomas Wyat, Tenant in Tail of the Gift of the King, made a Lease for years rendering Rent, and dyed; Sir Thomas his son accepts the Rent, and after was attaint of Treason, and exe­cuted, having issue, and adjudged that the King should have the Land [Page 28] in point of Reverter discharged of the Lease. But in our Case, the act being done by the issue in Tail himself, shall not enable him to make voyd the Lease made by his Mother, no more then if a Tenant in Tail makes a Lease for years, and levies a Fine with proclamati­ons to the Donor, and dyes having issue, yet the Donor shall not avoyd the Lease. Vid. Lord Aberganies Case, Cook. 6 Rep.

And although that the Wife were a Ioyntress within the Statute of 11 H. 7. yet is this Lease clearly out of the Statute, because that it is no bar or discontinuance to the Estate in Tail, as it is in Sir George Browns Case, Cook. 3 Rep. for this Lease was voydable by the issue, unless he had bar'd himself by his own Fine.

And I conceive this Lease is also good against the Devisee: for when a Tenant in Tail makes a Lease for years, or grants a Rent common, &c. or acknowledgeth a Statute, or doth in some other man­ner charge the Land, this is a good Lease, Grant, or Charge to binde the Tenant in Tail, and all other, except the issues in Tail, and those in Reversion. And the reason of this is, because the Statute of Westminster 2. cap. 1. that was made to avoyd such charges, does not ayd any persons except the issues in Tail, and those in Remainder and Reversion. And therefore if Tenant in Tail grant a Rent, or ac­knowledg a Statute, and dyes, the issue shall not be charged with it, and so shall his Feoffee; but if the Tenant in Tail himself, after such charge, infeoffs another, and dyes, the Feoffee shall hold the Land charged: and if a Tenant in Tail makes a Lease for years, and dyes, and the issue doth accept the Rent, the Lease is made good, and is absolute: but if he dyes seised of the Estate-Tail, the issue hath his election, either to make the Estate good by his acceptance of the Rent, or to avoyd the Lease by his entry; and if he infeoff a stranger before entry, the Feoffee shall never avoyd the Lease; and if the issue doth accept the Rent, he maketh the Lease good for his time: and as the Feoffee of the Tenant in Tail, and all those who come to the Land by any assurance made be the Tenant in Tail, whereby the Estate in Tail is barred or discontinued, shall hold the Estate charged with the Leases and charges made by the Tenant in Tail; so shall all those in like manner who come to the Land under the said Tenant in Tail, although the Estate-tail doth remain not barred or discontinued (saving the issues in Tail, who are ayded by the Statute of Westmin­ster the 2.) And therefore, if Tenant in Tail grants a Rent in fee, and takes a Wife, and dyes, the Wife shall hold charged with the Rent: and so if a woman Tenant in Tail grants a Rent, and mar­ries, and hath issue, and dyes, the Husband, being Tenant by the cur­tesie, shall hold the Land charged, for they are not ayded by the said Statute; and so if Tenant in Tail grants a Rent in Fee, and makes a Lease for three lives, warranted by the Statute of the 32 of Hen. the 8. and dyes, the Lessee shall hold the Land charged, Cooks Rep. 9. Count. Bedfords Case. And in the said Case of the Lord Aberge­veny, it is said, that the surviving Ioyntenant by acceptance of the Lease, hath deprived himself of the way and means of avoyding the charge; for vis accrescendi was the onely means of avoyding it, and the right of survivor is gone by the Release.

And so in our Case, the issue in Tail might have avoyded this Lease by his entry, but he hath quite barred himself by his Fine.

And as to the Statute of the 11 H. 7. cap. 20. I conceive that no­thing is prohibited by this Statute, but onely such Acts as are a bar of [Page 29] the Estate-tail, or a discontinuance thereof; for so are the words of the Stature, viz. If any woman shall discontinue, alien, release, or con­firm, with Warranty, &c.

And in Sir George Browns Case, in Cooks Repor. fol. 350. it is there argued, Whether a Discontinuance without Warranty be with­in that Statute? but it was resolved, that these words, with War­ranty, doe refer onely to Releases and Confirmations, which make not discontinuance without Warranty: for the intention of the Sta­tute was not onely to prohibit every bar, but also every discontinuance: but here in this case there is no bar or discontinuance; for the woman hath made a Lease for years, rendering Rent, by which the Estate-tail is neither bound nor discontinued, but she remains Tenant in Tail as she was before, and so dyed seised of such Estate; and therefore if it had not been for the Fine levyed by the issue in Tail himself, she might have entered, and have avoyded the Lease: and this is not like the Case there put by Anderson; where Feme Tenant in Tail in Ioynture within the Statute, does accept a Fine sur conusans de droit come ceo, &c. and therefore does grant and render the Estate for 1000 years; for though this be no discontinuance of the Estate-tail, yet is it a bar of the Estate during the time.

And Hillar. 22 Jacob. I argued this Case again: and all the Court, viz. Doderidge, Jones, and Whitlock, did agree, That the issue in Tail was barred by the Fine to avoyd this Lease; and that although the Estate-tail was barred, yet is it not extinguished, but remains in esse to support the Lease, so long as any issue in Tail does remain a­live; and so they agreed the Lease to be good. Wherefore,

Iudgment was given for the Plaintiff.Judicium.

George, Bishop of Chichester, Plaintiff; John Free­land Defendant, 1 Caroli. Rot. 607.

THe Case was; That a Bishop was seised in fee of a Park, to which there was the office of a Keeper belonging, with a fee of five marks with a Livery, granted from time to time by the Bishop. And the Bishop does grant the said Office together with the fees, nec­non cum pastura pro duobus equis in eodem Parco, which Grant was confirmed by the Dean and Chapter. The Bishop dyes, and another is made Bishop: And whether this Grant was good to binde the Succes­sor? was the Question.

And I conceive that this is a good Grant against the Successor, and will binde him.

And first, I conceive it will not be denyed, but that if a Bishop hath a Park, he by the Common Law may grant the Office of the Keeper of that Park to whom he will, with such fees and wages, and for such an esta [...]e as he will: and this being confirmed by the Dean and Chap­ter, is good to binde the Successor: and therefore it is to be considered, Whether any alteration of the Law be made in this point by reason of any Statute?

In the Bishop of Salisburies Case, Cooks 10 Rep. it is there resol­ved, that by the Statute of the first of Elizabeth, Bishops are thereby generally restrained from making any estate or interest of any Lands, Tenements, or Hereditaments, parcel of their Bishopricks, or any charge or incumbrance out of the same, or of any other thing in their [Page 30] disposition to binde their Successors; except onely Leases for 21 years, or three lives, of such Lands, Tenements, and Hereditaments, which have been usually demised, or whereupon the usual Rents have been reserved, according to the said Act. And, although such Lease be made of such Lands usually demised, reserving the usual Rent according to the said Statute; yet, unless all the limitations prescribed by the Sta­tute of the 32 of Hen. 8. be not pursued; as, if it be not all in pos­session, or, that the old Lease be not expired or surrendred within one year (which is not prohibited by the first of Eliz. as it was adjudged in Foxes Case) then such Lease will not binde the Successor, unless it be confirmed by the Dean and Chapter. And such construction as aforesaid hath been made to disable a Bishop to make any Estate, ex­cept Leases for 21 years, or for three lives, as is aforesaid, as concern­ing the binding of the Successor, as the Grant of the next avoydance by a Bishop to another, although it be confirmed by the Dean and Chapter, is restrained by the said Statute of Elizabeth to binde the Successor, as it hath often been judged: and the reason is, because it is such an Hereditament whereon no Rent may be reserved; for all in the Statute, that is not permitted in the Exception, is restrained as to the Successor by the general purview of the said Act: but yet such Grant will binde the Bishop himself, although the Statute says, that it shall be voyd against all intents and purposes: for the makers of the said Act did intend, not onely the advancement of Religion, but also increase of good Hospitality, and avoyding dilapidations and ruine of the Church; which the Successor, if the Acts of his Predecessor should binde him, were not able to remedy; and therefore the makers of that Act did rather regard the Successor. And these words in the Act, viz. Parcel of the possessions of his Archbishoprick or Bishoprick, or united, belonging, or appertaining to the said Archbishoprick or Bishoprick, may be very aptly construed, That the Gift of this Of­fice, and all other such like things that are belonging to the Arch­bishoprick or Bishoprick: for although the Bishop cannot exercise this Office himself, yet hath he an inheritance in the gift and disposing thereof: and so it is adjudged in Cooks 8 Rep. Earl of Rutlands Case. And these words, Belonging to the Archbishoprick or Bishoprick, shall be expounded for, Concerning the Archbishoprick or Bishoprick. And therefore if a Writ of Annuity be brought against a Bishop, upon a title of prescription, or otherwise, and Iudgment be given against him upon Verdict or confession, this is restrained by this Act, because the Bishop is charged with this Annuity in respect of his Bishoprick; and therefore the Successor shall be charged with the arrears incurred in the life of the Predecessor, 21 H. 7. 4. 48 Ed. 3.26. 33 H. 6. 44. and yet is not the Annuity issuing out of the Bishoprick, as appears in the 10 H. 6. 10. and 10 Ed. 4. 10. But because this does concern the Bi­shoprick, and does tend to the diminution of the revenues, and the impoverishing of the revenues, this is restrained by the said Act of the first of Eliz. And therefore to answer to the Objection, Wherefore such an Office should be granted to one solely? I answer (and it was also agreed to by all the Court) That if the Office be ancient and ne­cessary, the Grant thereof, with the ancient fee, is no diminution of the Revenue, or dispoverishing the Successor; and therefore of neces­sity such Grants are exempted out of the general restraint of the said Act of Elizabeth: For, as Bracton saith, Illud quod alias licitum non est, necessitas facit licitum, & necessitas inducit privilegium quod jure [Page 31] privatur. And if Bishops have not power to grant such Offices of service and necessity for the life of the Grantees, but that their estates shall depend on incertainties, as on the death or transmutation of the Bishop, then no able or sufficient persons will be willing to serve them in such Offices, or at least will not discharge their Office with any cheerfulness or alacrity, if they may not have such estate in cer­tain for the term of their lives, as their Predecessors had: but when an ancient Office is granted to one, it is not of necessity to grant the same to two; and therefore such Grant is not exempted out of the ge­neral restraint of the Statute, no more then if the Bishop should grant an Office with the ancient fee to one, and then he grants the Rever­sion to another; this is restrained by the Statute, because it is not of necessity: and if the Bishop may grant such Offices to two, he may grant them without any limitation of lives, and by consequence ad in­finitum: and so, if he may grant a Reversion to one, so he may to others also without any limitation: and by the same reason he may grant them in Tail or in Fee, which is quite contrary to the intention of the said Act. And of such opinion was Popham, Chief Iustice, Michaelm. 44 & 45 Eliz. in Stumblers Case, and Dyer 23 Eliz. 370. where Horn, Bishop of Winchester, did grant to Dr. Dale during his life a Rent out of the Mannor of Waltham, pro concilio impendendo: the Bishop dyed, and because the Rent was arrear, Dr. Dale brought an Action of Debt, for the arrears incurred in his life, against the Executors: In which two points are to be observed; 1. That the Grant was not voyd against the Bishop himself: The other, That although the Rent was issuing out of the possessions, and not parcel, this was voyd by his death. And Trin. 30 Eliz. Rot. 346. in this Court: The Bishop of Chester, after the Statute of 1 Eliz. did grant to George Boul­ton an Annuity of five marks per annum, pro concilio impenso & im­pendendo, which was confirmed by the Dean and Chapter: and then the Bishop dyed, and Boulton brought a Writ of Annuity against the Successor, and in his Count did aver, that the Predecessors of the said Bishop had granted reasonable Fees (but did not aver, that this Fee had been granted before) and did aver, that he was homo con­siliarius, & in lege peritus; and the Opinion of the Court was against the Plaintiff. But there it was resolved, that although the said Bi­shoprick was founded but of late times, to wit, in the time of Hen. the eight; yet a Grant of an Office of necessity to one in possession with reasonable fees (the reasonableness whereof is to be decided by the Court of Iustice wherein the same doth depend) is good, and is restrained out of the general words of the said Act.

And in our Case the avowant hath averred this Office to be an anci­ent Office, and which hath been granted with a fee of five marks from time to time, by the Bishop grantor and his Predecessors, to whom they pleased. Cooks 9 Rep. Earl of Shrewsburies Case. The Earl of Rutland was made Steward of a Mannor for life, without any words to make a Deputy; yet it was resolved that he might make a Deputy, because it was not convenient for him to exercise such an Office: So if an Office doth descend to an Infant, he must of necessity make a Deputy. And so if a Bishop be seised of a Mannor, he may ordain a Steward of the said Mannor, and may grant to the Steward a fee for the execution of the said Office, according to the resolution in the said Case of the Bishop of Chester.

Object. But it may be objected, that here is a greater Fee granted then was before, viz. Pasture for two Horses, and therefore the Grant is not good to bind the Successor.

Respons.And I do agree that the Grant of the said Pasture is void, yet that shall not at all prejudice the Grant of the said Office with the ancient Fee, for they are severall and distinct Grants, so that the one, viz. The Grant of the Office with the ancient Fee is good by the Law against the Successor, and the other void against the Successor, but it cannot hurt the grant of the Office and ancient Fee, no more then if a Bishop should grant an old Office with an ancient fee, and also a new Office which was never granted before, and all this by one Deed of Grant, and this is duely confirmed, although this be void against the Successor as to the new Office, yet it is good for the ancient Office and the ancient see: for although these fees are contained in one Deed, yet are they severall and distinct, so that one may be good and the other void, 33. H. 8. Dyer 48. One seised of a Mannor to which a Villain was reguardant, did grant one acre, and also the Villain, the Villain did pass in gross and the reason there given is, because there be severall Gifts contained in one Deed.

Also the Averment of the Plaintiff is insufficient, viz. That the pasture was never granted by any of the Predecessors of the Grantor, so that it may be that they were granted by himself, being Bishop, many times before the said Statute, and then the Successor may well grant it: and in the said case of the Bishop of Salisbury, it is averred that the Grant was not by the Bishop, Grantor, nor any of his Predecessors.

William Whitton Clerk, Plaintiff, Sir Richard Weston Defendant, in an Action of Debt.

Saturday the sixth day of June, in the ninth year of the Reign of King Charles: Between Francis Town­ley Esquire Plaintiff, Edward Sherborne, Execu­tor of Richard Mountford deceased, Executor of Thomas Challoner deceased, Defendant.

Vpon hearing and debating of the matter, as well on the fifteenth as the eighteenth of June last, the Court being assisted with Mr. Iustice Hutton, and Mr. Iustice Jones, upon the Plaintiffs Bill of Review for the reviving and reversall of a Decree made in a Cause wherein the said Richard Mountford deceased, Executor of Thomas Challoner was Plaintiff against the now Plaintiff, and Thomas Foster Esquire, con­cerning the summe of one thousand seven hundred pounds, raised out of the Rents and Profits of certain Lands and Tenements in Linsted, Ar­dingley, and Worth in the County of Sussex, in trust for the said Thomas Challoner during his Minority, and which the now Plaintiff by the Decree of this Court was to pay in case the said Foster should fail to pay the same: severall matters were offered by the Plaintiffs Councell for the reversall of the said Decree, as namely, that the now Plaintiff was decreed to pay the summe of one thousand seven hundred pounds as rai­sed out of the profits of the Infants Lands settled upon an account made up by the said Forster, with the said Thomas Challoner the Infant, after he came to age, whereto the Plaintiff Townley was neither party nor privy, nor ever consented nor ought to be bound thereby. And second­ly, that the said Plaintiff is by the said Decree made lyable to the pay­ment of all the profits raised out of the said Infants Estate, whereas he never received any profits at all, and although he gave some Acquit­tances, yet the same were onely for the three first half yeares, and no more, and were but to ballance an account, the monies disbursed a­mounting to as much as the Receipts, and there being three other Co­trustees with him, the Plaintiffs Councell conceived that he ought not to be charged with more then he himself received, especially for that the other parties trusted, and who received the profits were, or were repu­ted to be, men of ability, and responsible. Touching which last point, be­ing that where on the Plaintiffs Councell chiefly insisted for the rever­sall of the said Decree as against the now Plaintiff; It appeared unto this Court, that Challoner Father of Thomas the Infant, did heretofore make a Lease of the said Lands to one Weeks for five and thirty yeares, and afterwards conveyed away the Reversion to Thomas Challoner his Brother, and after the death of Francis (according to an Award made between the said Weeks and Thomas Challoner the Brother, who was [Page 36] Vncle to Thomas the Infant) the Lease of five and thirty years, and the Reversion in Fee-simple were to be assigned to parties trusted by the said Weeks, and one Barbara Challoner, Mother of the said Infant, and by the said Thomas the Vncle, the Lease to be intrust for Weeks for life, the remainder to Barbara for life, the remainder to Thomas the Infant, and the reversion in fee to be in trust for the said Thomas the Infant. But upon the limitation or Condition that the said Thomas the Infant when he came of age should make some assurance to Thomas the Vncle according to the Award, wherein if he failed, then the trust limited to him should cease, and the Trustees should be seised for Thomas the Vncle. In pursuance whereof the now Plaintiff and the said Forster were trusted together with one Langworth and Lovell to take the Estate in the Lease, and did take an Assignment thereof from Weeks the 12th. of June, 9. Jacobi: And all the Trustees sealed the Counterpart, and the same day the now Plaintiff and Forster assigned their moyity in the said Lease to one Mr. Peacock and Robert Forster, who were not privy nor acquainted therewith, and on the thirteenth of June, the ninth of King James, the said Thomas Challoner the Vncle passed over the Inheritance to the now Plaintiff and Thomas Forster, whereby it was probable that the said Assignment made by the now Plaintiff and Thomas Forster, of their interest in the moyity of the Lease, was to keep the same from be­ing extinguished. After which assurance so made, Weeks, during his life, and Barbara after him during her life received the profits of the said Lands, and Barbara in the year of our Lord 1614. dyed. And it appeared that soon after the death of the said Barbara, viz. 23. of March, 12. Jacobi, Langworth one of the Trustees of the Lease being dead, whereby his interest in the moyety survived in Lovell, that Thomas Chal­loner the Vncle procured the said Lovell to assign over his interest in the said Lease, to the said Thomas Challoner the Vncle, lyable to the said trust, as by a Copy of the Assignment now read appeared. And it ap­peared by the confession of the now Plaintiff, and by his answer to the former Bill, and by the Acquittances now produced that the now Plain­tiff joyned with the said Thomas Forster in giving acquittances for the three first half years Rents, but it did not appear that he ever received any after, or gave any more Acquittances, but it doth appeare by the proofs, that the said Thomas Challoner the Vncle, who had the Assign­ment from Lovell, did receive the Rents of the Tenants, and payd the same over to the said Thomas Forster, and that when the Infant came of age, he called the said Thomas Forster, and Thomas the Vncle to an ac­count, and that they did account: And that the said Thomas Forster did then deliver him a Book of account, which the Defendant now produ­ced in Court, by which it did appear, that for the three first half years the Rents were received by the said Thomas the Vncle, and by him paid to the now Plaintiff, and the said Thomas Forster for the use of the Infant, but for all the subsequent time the same were received by the said Thomas Challoner the Vncle, and by him paid to the said Thomas Forster alone, who (as was not now denyed) was at the time of such receits generally taken to be of great ability and responsable, as it also appeared by the proofs, that the said Infant after he came of age, had declared the said Thomas Forster to be his Debtor, and did by his Will read in Court, give the said summe of one thousand seven hundred pounds to the said Mountford as a Debt owing by the said Thomas Forster sole­ly, not mentioning the now Plaintiff. Vpon all which this Court was fully satisfied, that the now Plaintiff received no penny of profits [Page 37] after the three first half years: but whether he ought to be charged with all that the said Thomas Forster received, being a Co-trustee with him, in respect the said Forster is now declined in his Estate (as is conceived) this Court somewhat doubted: and although a president was produced, wherein this Court had charged parties trusted but one­ly according to their several and respective receits, and not one for the other; yet in respect the Defendants Councel opposed the same, alledg­ing many presidents to be on the other side, and the Lord Keeper con­ceived the case to be of great consequence, and thought not fit to deter­mine the same suddenly, but to advise thereof, and desired the Lords the Iudges assistance to take the same into their serious considerations, and to assist him with their advice therein, whereby some course might be settled that parties trusted might not be too much punished, lest it should dishearten men to take any trust, which would be inconvenient on the one side; nor that too much liberty should be given to parties trusted, lest they should be emboldened to break the trust imposed on them, and so be as much prejudicial on the other side. And the Lord Keeper, and the Lords the Iudges assistants afterwards conferring together, and upon mature deliberation concerning the case, to be of great importance, his Lordship was pleased to call unto him also Mr. Iustice Crook, Mr. Iustice Barcley, and Mr. Iustice Crawley, for their assistance also in the same; and appointed presidents to be looked over, as well in this, as in other Courts, if any could be found touch­ing the point in question; whereupon several presidents were pro­duced before them, some in this Court, and some in the Court of Wards, where parties trusted were chargeable onely according to their several and respective receits, and not one to answer for the other; but no president on the contrary was produced to them. Whereupon his Lordship, after long and mature deliberation on the case, and serious advice with all the said Iudges, did this day in open Court declare the resolution of his Lordship and the said Iudges: That where Lands or Leases were conveyed to two or more upon trust, and one of them re­ceives all or the most part of the profits, and after dyeth or decayeth in his Estate, his Co-trustees shall not be charged, or be compelled in this Court, to answer for the receits of him so dying or decayed, un­less some purchase, fraud or evil dealing appear to have been in them to prejudice their trust; for they being by Law Ioyntenants or Te­nants in common, every one by Law may receive either all or as much of the profits as he can come by: And it being the case of most men in these days, that their personal Estates do not suffice to pay their debts, prefer their children, and perform their Wills, they are enforced to trust their friends with some part of their real Estate, to make up the same, either by the sale, or perception of profits: and if such of these friends, who carry themselves without fraud, should be chargeable out of their own Estates for the faults and deficiencies of their Co­trustees, who were not nominated by them, few men would undertake any such trust. And if two Executors be, and one of them waste all, or any part of the Estate, the Devastavit shall by Law charge him onely, and not his Co-executor: and in that case, Equitas sequitur Legem, there having been many presidents resolved in this Court, that one Executor shall not answer nor be charged for the act or default of his companion. And it is no breach of trust, to permit one of the trustees to receive all or the most part of the profits, it falling out many times that some of the Trustees live far from the Lands, and are put in [Page 38] trust out of other respects then to be troubled with the receit of the profits. But his Lordship and the said Iudges were of opinion, that if two Trustees were, and one of them without warrant of the party that trusteth him, or of a Court of Equity, assigneth his Estate, and the Assignee doth receive the profits, and becometh non-solvent, he that made the Assignment shall answer it for him, but the other original Trustee shall answer for no more then what he receiveth himself, because the Assign cometh not in by him, or his assent or appointment: and that in case, if the original Trustee, that did not make the Assignment, receive the whole profits, and become non-solvent, neither the Assignor nor the Assignee shall be answerable for them: and if an Obligation be made to two in trust, and one of them release the whole debt, as by law he may, this shall not charge his companion for any part: and albeit in all pre­sumption this case hath often happened; yet no president hath been produced to his Lordship or the Iudges, that in any such Case the Co-trustee hath been charged for the act or fault of his companion: and therefore it is to be presumed, that the current and clear opi­nion hath gone, that he is not to be charged (it having not till of late been brought in question) in a case that by all likelyhood hath frequently happened. But his Lordship and the said Iudges did re­solve, that if upon the proofs or circumstances the Court be satis­fied, that there be Dolus malus, or any evil practice, fraud or ill intent in him that permitted his companion to receive the whole profits, he may be charged though he received nothing. And his Lordship and the said Iudges did declare, that in this particular Case, they did not finde any material proof against Mr. Townley, to make his case worse then the general case aforesaid, but rather better (ex­cept onely for the three half years Rent, which he joyned in ac­quittance with Mr. Forster; for the receit of the profits alone by Mr. Forster is no breach of trust in Mr. Townley: and Mr. Chal­loner, when he came of full age, took Mr. Forster for his Debtor. And therefore it is ordered and decreed, That so much of the said Decree as chargeth Mr. Townley with any more of the profits then the three half years, for which he joyned in acquittance, shall be reversed: but as for those three half years profits, if the same were not disbursed or imployed for the use of Mr. Challoner, then for so much thereof as hath not been so disbursed or imploy­ed, the said Complainant Mr. Townley ought to be answerable, and the Defendant may call the Plaintiff before Mr. Page, one of the Masters of this Court, to audite the account touching these three half years, if any difference be thereabouts. And lastly, it is ordered, that the Recognizances given on the Plaintiffs part, to per­form the Order of this Court, be discharged.

Trinit. 13 Jacob. Allen against Wedgwood.

IN an Action of Debt on a Bond of 100 l. made the 23 of April 1610. The Defendant demands Oyer of the Obligation and Con­dition, which was, That if the Defendant did perform all and every such Article and Articles of Agreement, and every parcel and particu­lar point thereof, being dated the day of this Obligation taken between the Defendant and Plaintiff, with the consent of both parties, concluded and agreed upon, and sealed with the seal of the Defendant, that then the Oligation to be voyd. And he demanded also Oyer of the Articles, which were as followeth.

Memorandum, It is agreed between the Defendant of the one part, and the Plaintiff of the other part; and the Defendant doth con­descend and agree for him, his Heirs, Executors, Administ. &c. with the Plaintiff, his Heirs, Executors, &c. in manner and form following.

Impr. The Defendant, for him, his Heirs, &c. doth demise, set, and 1 to farm let, to the Plaintiff, his Heirs, Executors, &c. the Mannor-house, or Messuage, called Sowdley Hall, with all the Lands which were some­times in the Tenure of Reynold Sowdley, with all the appurtenances thereunto belonging, being in great Sowdley in the Parish of Chosen­dine in the County of Salop.

Item, The Defendant is to make a Lease of the said Mannor for term 2 of three lives, to the Plaintiff or his Assigns, and they to enter after the expiration of such Lease or Leases as are lawfully made by Iohn Sowdley, if any be.

Item, If there be any Lease or lawful bargain made thereof, that then 3 at the expiration thereof the Plaintiff is to nominate the names of three such persons as shall be expressed in the aforesaid Lease, which is to be made to the said Plaintiff by the said Defendant.

Item, If there be none made thereof, that then the Plaintiff is to 4 enter upon the said Mannor at the Anunciation, 1612.

Item, The Plaintiff is to have and enjoy the same, paying yearly, 5 during the three lives, for, and according to the Rent it was set for, in the time of the Father of Iohn Sowdley.

Item, The Plaintiff is to pay the Defendant, when the said Plain­tiff 6 or his Assigns shall enter upon the said Mannor, 20 l. for a fine.

Item, The Defendant may at any time, so long as he is unmarryed, re­sort 7 unto the said Mannor, at such time as the Plaintiff shall inhabit there, or have the profit thereof, and finde good entertainment, for himself, his boy, and his horse.

Item, The Defendant is to deliver the said house to the Plaintiff, with 8 all the appurtenances thereto belonging, or in any wise appertaining, Tenantable and in good repair.

Item, The Defendant is to make as good a Lease, as can be devised by 9 Councel, unto the Plaintiff and his Assigns.

And the Defendant pleaded performance of these Articles.Plea. Replication.

The Plaintiff did reply, that the said 23 of April, 1610. there was not any Demise made by the said John Sowdley of the said Mannor-house, and of the houses called Sowdley Hall, and of the Land lately in the Tenure of the aforesaid Reynold Sowdley: and that the Plain­tiff, [Page 40] since the making of the said Articles, viz. 9 Maii 10 Jacob. at great Sowdley aforesaid, did require the Defendant to make a Lease of the said Mannor-house and houses, with the aforesaid Land, late in the Tenure of the said Reynold Sowdley, scituate in great Sowdley aforesaid, in the Parish aforesaid, and in the County aforesaid, to one Walter Welden, Thomas Welden, and John Welden, for their lives, according to the effect of the said Articles: and that the said Walter, Thomas, and John, were there and then ready to accept of the said De­mise of the premisses of the Defendant, and yet the Defendant did refuse to make the said Demise of the premisses to the said Walter, Thomas, and John.

Demurrer.Vpon which the Defendant demurred in Law.

And I conceive that the Plaintiff ought to have Iudgment.

And fist, to answer the Objections that are made against the Plain­tiff upon the Articles.

Object. 1 That the Lease ought to have been made to the Plaintiff himself for three lives, and not to any other.

Answer. I answer, The words are plain, That the Lease shall be made to the Plaintiff or his Assigns in the disjunctive: and therefore it is in his election either to take the Lease to himself for three lives, or to take it to his Assigns for three lives; and so should it be, if the words were to the Plaintiff and his Assigns, as it is resolved in the Comment. fol. 288. Chapman against Dalton: where a man did let Land to ano­ther, and did covenant at the end of the term, to make such another Lease to the Lessee and his Assigns; the Lessee made his Executor, and dyes; and the Executor does make his Executor, and dyes: and there it was adjudged, that the Lease ought to be made to the Executor of the Executor, for he is the Assignee in Law to the first Testator: and the word [and] shall be taken for the word [or] and there it is clearly agreed, that if the Lessee had named any in his life-time to take the said Lease, it ought to be made to him: and so (as it is there said) if I be obliged to make a feoffment to you or your Assigns, such as you name to take the feoffment, are your Assigns indeed: and so in our Case, these three persons named by the Plaintiff are his As­signs, to whom the Lease ought to be made, 21 Ed. 3. 29.

Object. 2 The other Objection is, that the Lessee named by the Plaintiff ought to be ready upon the Land to take the Lease; for a Lease for life cannot be made off the Land.

Answer. I answer, That when a man is bound to infeoff the Obligee, and no time is limited, he ought to do this upon request, 27 H. 8. 6. B. and the same Law of a feoffment upon condition to re-infeoff him, 44 Ed. 3. 9. 14 H. 8. 21. 18 Assis. 18. 17 Assis. 20. but yet the Obligor at his peril ought to do it during his life, otherwise the condition is broken.

So in our Case, the Plaintiff ought first to require the Defendant to make the Lease, and this of necessity ought to be done where he can finde the Defendant, for it is impossible to do it on the Land, unless the Defendant be there, and the Plaintiff cannot compel him to be there: But when the Plaintiff hath made his request, the next action is then to be done by the Defendant; and therefore he ought to go to the Land, and to be ready there to make the Lease. And in the 22 Ed. 4. 43. A. is bound to B. on condition that C. shall infeoff B. by such a day, and did shew that C. was there ready on the Land, and B was not there to receive the Feoffment: and there it was argued, whether the [Page 41] issue should be, upon the being of C. upon the Land who ought to make the Lease, or of B. who was to take the Lease; and in fine it was adjudged, that the issue should be, whether C. were there or not? for he ought to be there, or else the Bond was forfeit. So that the De­fendant upon request ought to go to the Land, and there to attend a convenient time to make the Estate; and then if the persons named do not come thither, he is excused; but when he goes not to the Land, but does utterly refuse to make the Estate, it is to no purpose for the Assigns to come to the Land: and admitting the Law would enforce them to attend there, then I demand how long they ought to attend? for in all places where the attendance of one is required in a place cer­tain by the Law, the time of his attendance is limited, 18 and 19 Eliz. Dyer 354.

The third Objection is, that the Article for making of the Lease, Object. 3 is to make a Lease of the said Mannor, whereas no Mannor is menti­oned before; and the request is, to make a Lease of the houses and of the Land, late in the Tenure of Randolph Sowdley.

To this I answer, That the Demise in the first Article, Answer. is of the Mannor-house and all the Lands, which were in the Tenure of Ran­dolph Sowdley, with all the appurtenances thereto belonging; then when he agrees to make a Lease of the said Mannor, it shall be intend­ed the Mannor mentioned before: and although it be not in verity a Mannor, yet in reputation it may be a Mannor, and that is enough to make it to be put in the agreement. 22 H. 6. 39. a. where one pleaded a Feoffment of eight Acres of Land by the name of the Mannor of D. and adjudged by the Court to be a good Feoffment, although the acres were not set forth: and in the 27 of H. 6. 2. a Plough-land may pass by the name of a Mannor.

The request is made too late, for the time limited to enter is the Object. 4 Anunciation, 1612. and the request is not until the ninth of June next after, and that is too late; for the Lessor ought to have 20 l. fine up­on the entry and making of the Lease, and therefore the request ought to be made at the time that the entry was to be made: and for that pur­pose Andrews Case, and the Lord Cromwels Case in L. Cooks Rep. were cited. To which Objection Cook and all the Court did seem to incline.

But I conceive that the request is made in good time enough, Answer. for two Reasons.

The Estate here is to be made by the Defendant; and although he be 1 not bound to do it without request, yet may he do it, or at least he may offer to do it, without any request: and therefore if there be any loss in the not doing of it, it is his own fault, because he did not offer to make the Estate, and is not the Plaintiffs fault; and if he had offered to make the Estate, and the Plaintiff had refused, he had been ex­cused.

And therefore the rule is given in the Lord Cromwels Case afore­said, that when a woman or a Grantee upon condition is to make an Estate to the Grantor, and no time is limited, he hath time for his life, unless the party who is to have the Estate do hasten it by request: but if an advowson be granted on such condition, the Regrant ought to to be before the Church becomes voyd: so, if the condition be to grant Rent payable at certain days, the Grant ought to be before any day of payment; for otherwise he shall lose the Presentation, and the Rent which will incur before the Grant made. And in the 14 Ed. 3. Debt. [Page 42] 138. In a Debt upon a Bond, the Defendant pleaded the Condition, viz. That if he granted twelve marks Rent, the Bond should be voyd, and demanded Iudgment, &c. because no time was limited, so that he might do it when he would; and said, that he was always ready to grant the twelve marks Rent: and because he demurred not, issue was joyned, &c.

2 If this not making request shall be any damage to the Plaintiff, it must be because the Defendant suffers loss by it, as in the cases above cited; but in this case the Defendant hath the same remedy for the 20 l. although no Estate be made, as he should have had if the Estate had been made; for by the fourth Article it is agreed, that if there be no Estate made of the Land, the Plaintiff shall enter at the Anunciation, 1612. And I conceive that this payment ought to be made at the time limited for the entry; for it is a mutual agreement that doth binde both parties: and therefore it lies not in the power of the Plaintiff, for his want of entry, to defeat the Defendant of his 20 l. agreed to be payd to him: but when he enters, it shall be intend­ed that he entered when it was agreed he should enter, viz. at the Anunciation, 1612. And if he payd it not then, the Defendant might have had his Action of Covenant, whether any Lease were made or not. And in Sir Andrew Corbets Case, Cook. Rep. 4. 81. certain Land is devised to A. B. until 800 l. pound be levyed, that is until it may be levyed: and so in case of a Lease or limitation of a use; for otherwise it should be in their power to hold out the Lessor for ever: and so in case of an Elegit, upon the Statute of Westm. the 2^d. cap. 18. and of Retinue for the double value of a Marriage by the Statute of Merton, cap. 6.

Opinion of the Court.And the whole Court was of Opinion, that the request came too late: whereupon they were of Opinion to give Iudgment against the Plaintiff: but I prayed, that the Plaintiff might discontinue his Suit, which was granted.

Rot. 609.Michaelmas, 13 Jacob. Smalman, Plaintiff, against John Agborrow and Edmund Agborrow, De­fendants.

IN an Action of Trespass; for that the Defendants, the 13 Maii, 13 Iacob. six Heifers of the Plaintiff of the price of 20 l. at Dodenham, in a place called Well-Marsh, did take, chase, and drive away, to the damage of 10 l. &c.

The Defendants to all, except the chasing, did plead Not guilty.

And as to the chasing, they said that the place where, &c. is, and at the time wherein, &c. was the Freehold of one Francis Agborrow, and so did justifie as his servants, for damage feasant, &c.

Replication.The Plaintiff replyed, that before the said Francis Agborrow had any thing, &c. the Dean and Chapter of the Cathedral of St. Mary the Virgin, in Worcester, were seised in fee of the Mannor of Aukerden and Dodenham, whereof the place where, &c. is, and at the time whereof, &c. was parcel, &c. And that the 25 of Novem­ber, 10 Elizab. the said Dean and Chapter, by their Indenture, did Demise the said Mannor to William Agborrow, and Jane his Wife, and to the said Francis Agborrow for their lives: And that the 20 Febru. 39 Elizab. William Agborrow dyed seised: [Page 43] and that the 21. of Decemb. 39. Eliz. Jane did marry with Robert Haw­kins? And that the 25. Febr. 40. Eliz. Robert Hawkins,, and the said Jane by their Indenture did demise the said Mannor to William Hawkins and William Heaven for sixty years from the date, &c. if the said Jane and Francis Agborrow or either of them should so long live, rendring twenty pounds rent, and that the 25. of Mar. 13. Jac. William Hawkins and Wil­liam Heaven did grant their Estate to the Plaintiff, whereby he was possessed and put in his Cattel there to grase, which were there untill the Defendant took them away, &c. And did aver the life of Francis Ag­borrow.

The Defendants rejoyn and say, that the said Jane did die the 14.Rejoynder, of Mar. 12. Jac. and that Francis Agborrow did hold himself in, &c. Per jus accresendi.

Vpon which the Plaintiff demurred in Law.

A man and a woman are Ioynt-tenants for life, the woman marries,The Case. the Husband and Wife by Indenture do let their moyety for years, ren­dring Rent, and after the woman dies.

And the question was, whether the surviving Ioynt-tenant could a­void this Lease.

And I conceive he cannot.

And for the Argument of this Case, I shall observe these two things thereof.

That if the woman who made this Lease had been sole at the time of I the making, this Lease had been good during her life, and the life of her Companion the other Ioynt-tenant.

That this Lease being made by the Husband and Wife, is not void, II but voidable.

And as to the first Point, Littleton fol. 63. and 64. saies, that if two Part. 1 Ioynt-tenants in Fee be, and one grants a Rent-charge and dies, the Survivor shall hold the Land discharged; but if one makes a Lease for years and dies, the Lease is good against the Survivor: and in Hales Case in the Comment, If two Ioynt-tenants be for years, and one of them does grant to I.S. that if he payes twenty pounds at Michaelmas, he shall have his moyety, and the Grantor dies, and I. S. does pay the mo­ney, yet shall not he have the Land, because the Condition precedes the Estate, but if he make a Lease for yeares to commence at a day to come, and dies before the day, yet is the Lease good against the Survivor: and so in Trin. 37. Eli. Harbury and Bartons Case. Two Ioynt-tenants are for life, and one lets his moyety for years to commence after his death, and dies, and agreed to be a good Lease against the Survivor: for as Lit­ton saith, every Ioynt-tenant is seised Per my & per tout, and hath an Estate in one moyety not only for his own life, or his own time, but al­so for the time and life of his Companion, and therefore every Estate made by him is good for a moyety so long as the Estate of himself and his Companion continues, but a Rent-charge shall not bind his Com­panion, because he claimes by the first Conveyance which is above his Companions Estate.

And as to the second point, it is cleer that when Husband and Wife Part. 2 make a Feoffment in Fee, or a Lease for years of the Land of the Wife rendring Rent, the Wife after the death of her Husband may accept the Rent, and make the Lease good; as in 26 H. 8. 2. the case of the Feoffment is agreed, and if a Woman after the death of her Husband does accept the Rent, she shall be barred in a Cui in vita, 11. H. 7. 13. 15. Ed. 4. 17. and Dyer 91. B. Husband and Wife make a Lease for years [Page 44] by Indenture, and the Husband dies, and she accepts the Rent, she shall be bound thereby and shall not avoid the Lease.

Vpon which two things being (as I conceive) unquestionable, it follows that this Lease at the time of the making thereof, is not void but voidable. And therefore the sole question will be, how this Lease is voidable, and if it may be avoided by the surviving Ioynt-tenant, or not?

And I conceive that it is avoidable by the Wife only, if she survive her Husband, and not by the other Ioynt-tenant, and that for two reasons.

First, Because the Survivor comes in above the Lease, and there­fore cannot take advantage of any imperfection or defect to avoid the Lease, 14. Ed. 4. 1. B. If a Feoffment or a Lease for life be made to two, and one dies, the other may plead the Estate to be made to him only, for he is not in by him that is dead, but by the Feoffor or Lessor,: and Dy­er 187. a. Two Ioynt-tenants for life, one makes a Lease for yeares rendring Rent, and dies, the Survivor shall not have the Rent. And if Tenant for life makes a Lease for years rendring Rent, and surren­ders to the Lessor, the Lessor shall not have the Rent, for he is in by his Reversion which is above the Lease for years: and 28. H. 8. 96. a. An Executor had Iudgment to r [...]cover a Debt, and died intestate, where­upon Administration is committed to another, he shall not have a Scire facias upon this Iudgment, because that he being Administrator imme­diately to the Testator is above the recovery.

Secondly, There is no privity between the surviving Ioynt-tenant and the Lessor, to make him avoid the Lease which is voidable, as in 8. Rep. Whittinghams case, Privies in blood, as Heir generall or speciall shall avoid a voidable estate made by the Ancestor, as if an Infant make a Feoffment in Fee, his Heir may well enter and avoid the Feoffment: but Privies in Law, as Lord by escheat, Lord of a Villain, or Lord who enters for Mortmain, shall never take benefit of the Infancy, be­cause they are but strangers. And therefore if an Infant make a Feoff­ment in Fee, and dies without Heir, the Feoffment is unavoidable, 49. Ed. 3. 13. 6. H. 4. 3 7. H. 5. 9. 39. H. 6. 42. And as to Privies in Estate, as Ioynt-tenants, Husband and Wife, Donor, in Tail, and Donee, Les­sor and Lessee, it is there also resolved, that they shall not take advan­tage of Infancy, unle [...]e it be in some speciall cases. And therefore if Tenant in Tail within age makes a Feoffment in Fee, and dies with­out Issue, the Donor shall not enter, contrary to the opinion of Rick and Frisby, 6. H. 4. & 3. because that here is only a Privity in Estate between them, and no right does accrue to the Donor by the death of the Donee: So if two Ioynt-tenants in Fee be, and one of them being within age makes a Feoffment in Fee, and dies, the Survivor shall not enter; but if two Ioynt-tenants within age do make a Feoffment, one joynt Right remains in them, and therefore if one dies, the Right will survive, and the Survivor may enter in all, and the same Law of Covertue, or non sanae memoriae, as it is said also in Whittinghams case: and in Fitzherb. N. B. 192. K. If two Ioynt-tenants within age do alien in Fee, they must sue severall Writs of Dum fuit infra aetatem, because that the cause of their Action is their nonage, which is severall, for the nonage of the one is not the nonage of the other. But if Husband and Wife within age, do make a Feoffment of the Wifes land, and the Husband dye, the Wife shall have a Dum fuit infra aetatem, 14. Ed. 3. Dum fuit infra ae­tatem, 6. and 12. H. 7. 18. B. Kelloway: In a Formedon by the Lord Brook against the Lord Latimer, if an Infant does make a Feoffment, [Page 45] none shall avoid this but the Infant himself and his Heirs, and no stran­ger, and the same Law of a Feme Covert.

And as to the case of Harvey and Thomas, 33. Eliz. cited in the Lord Cromwells case, Where the Husband made a Lease of his Wifes Land for years, and then he and his Wife aliened by Fine, and the Husband dies, the Conusee shall avoid this Lease, which I agree to: for the Lease being made by the Husband only, is utterly void against the Wife, and cannot be made good by any Act done by the Wife, and the Land pas­seth all from the woman by the Fine, and therefore the Lease cannot bind the Conusee.

The Survivor in one case cannot make the Lease good by the accep­tance 3 of the Rent, because that the Rent does not belong unto him, and therefore he shall not be received to avoid this Lease, as in Nat. B. 138. B. the Heir shall not have a Cessavit for ceasing in the time of his An­cestor, for he shall not have the Rent or the arrearages incurred in the life of his Ancestors, and the reason is as I conceive, because that the Law does give this benefit to the Tenant for the saving of his Tenancy for the tender of arrearages, the which cannot be to the Lord, because that the Rent is not due to him, and therefore the Lord shall lose his acti­on rather then the Tenant shall be deprived of his advantage of saving the land by his tender: And by this case also, the Aunt and the Neice shall not joyne in a Cessavit, for a ceasing made before the Title of the Neice accrued, but in Nat. F.B. 139. it is otherwise there of joynt-te­nants, as I conceive, the reason whereof is, because, as I conceive, the Survivor shall have all the Rent, and therefore the tender may be made to him, 13. H. 4. 17. B. If one makes a Feoffment in Fee rendring Rent upon condition to re-enter for non-payment, and dies, the Rent being arrear, the Heir cannot demand the Rent or enter for non-payment, be­cause that the Rent is not due to him, and as he cannot dispence with the Condition for acceptance of the Rent, so cannot he enter for non-pay­ment thereof.

And I argued this Case again on Fryday, being the first day of Tri­nity Term, 14. Jac. 31. Maii, at which day, Daston did also argue for the Defendant, but the Court did not then give any direct Opinion, but seemed to incline very much for the Plaintiff. And Hil. 14. Jac. the case was argued by Chilborne Serjeant, for the Plaintiff, and Davenport for the Defendant; at which time all did agree, that the Lease continued: But Davenp. took exceptions to the replication, For he said, that the mar­riage of Jane with Rob. Hawkins is alledged to be 21. of No. 39. Eli. and the death of William Agborrow her first Husband, the 20. of Febr. 39. E­liz. which is after the marriage; but that was held not materiall, for it is said, that William Agborrow died the twentieth of Febr. 39. Elizab. and that atferwards, viz. the one and twentieth of Novemb. 39. Eliz. Jane did marry Thomas Hawkins, so that the [afterward] is sufficient, Trin. 37. Eliz. Rot. 206. Butler against Wallis: In a Trespasse the Defendant justified by vertue of an Extent upon a Statute, and did shew the Ex­tent, and that the 28. of Febr. a Liberate was awarded by vertue where­of the Sheriff the 27. of Octob. delivered the land to him, &c. yet ad­judged sufficient, for when he said Virtute brevis, the mistake of the day afterward is not materiall.

And at last in the said Term of S. Hillary, Judgment. all the Court agreed that the Lease continued good against the Survivor, and cannot be avoided by him, and that the acception to the pleading was not materiall: And thereupon Iudgment was given for the Plaintiff.

Rot. 668.Pasch. 11. Jacob. Between Thomas Palmer Knight, Plaintiff, Richard Greenwill, and Edward Green­will, Executors of John Greenwill Defendants.

IN an Action of Debt on a Bond of fifty pound, entred into by the Te­stators the 20. of Novemb. 5. Jac. The Defendant demanded Oyer of the Bond and Condition, which was, that if the Testator his Heires Executors and Assignes, did perform all the Covenants comprised in certain Indentures, bearing date with the Obligation made between the Plaintiff on the one part, and the Testator of the other part, that the Obligation shall be void. And the Defendant pleaded, that the Plaintiff by the said Indenture did let to the Testator a House and the moyety of his land, amounting to about thirty Rods of land in Pollicote to have, &c. from Michaelmas last past, for seven years, rendring twen­ty pounds Rent, and shewed that the Testator did covenant by the same Indenture for him, his Executors and Assignes, with the Plaintiff his Heires and Assignes, within two years after the beginning of the said Lease, to deliver or cause to be delivered to the Plaintiff or his Assigns, a Map or Plot made in distinct manner by men of skill, as well of all the land in little Pollicot, as was then in his occupation, and in the oc­cupation of Thomas Cocker and John Crooke, parcell of the Demise of the Plaintiff in Pollicot aforesaid, as of all the land in the occupation of the Testator by a lease of Lincoln Colledge in Pollicot aforesaid, which are all the Covenants, &c. And pleaded that the Testator in his life time, and the Defendants after his death had performed all the Cove­nants, &c.

Replication.The Plaintiff replied, that the Testator within two years after the beginning of the Lease, did not deliver or cause to be delivered to the Plaintiff or his Assignes, a Map or Plot made in distinct manner by Surveyors and men of skill, of all the land in little Pollicot aforesaid, in his occupation, and in the occupation of the said Thomas Cocker and John Crooke parcell of the aforesaid Demise of the Plaintiff in Pollicot aforesaid, Secundum formam & effectum Indenturae praedict.

Vpon which Replication the Defendants demurred in Law.

And I conceive Iudgment ought to be given for them against the Plaintiff.

First, the Plaintiff replies, that the Testator did not deliver the Plot, and it may be that it was delivered by the Defendants who were his Executors, which is a good performance of the Covenant, and if so, then the Plaintiff has no cause of action, and where the matter is left doubtfull in the Replication, it shall be taken most strongly by the Plaintiff who pleads it. And in the Comment. 104. a. Fulmerstone a­gainst Steward. If a man be bound to pay twenty pounds about Christ­mas, it is no plea for him to say he hath paid it, but he must shew when, or otherwise it shall be intended that he paid it after the Feast and before the Suit. And so in a Dum fuit infra aetatem if the Tenant do plead a Release of the Demandant, it is no plea without saying that he was of full age, for the plea shall be taken most strong against himself, and that is, that it was made when he was within age: and 3. H. 7. 2. If the De­fendant in a Trespasse does plead a release, it is not sufficient without shewing that it was made after the Trespasse, for otherwise it shall be taken to be done before.

And 26. H. 8. Pleading 147. If in a Praecipe quod reddat, the Tenant does plead Warranty collaterall of the Ancestor of the Demandant, and he replies that he entred, and so does avoid the Warranty, it is not good without saying that he entred in the life of the Ancestor, for other­wise it sh [...]ll be intended that he entred after the descent of the Warran­ty, and in Dyer 89. and 96. The Plaintiff in an Ejectment declared on a Lease for years to begin at Michaelmas after the death of Thomas Boydon and M. his Wife, and set forth, that they died, and he entred, and adjudged insufficient, for it might be that he entred after this death, and before Michaelmas, and Dyer 28. H 8. 27. A Covenant that the Les­see and his Assigns shall pay all Rents, pleading that the Lessee hath paid them is not sufficient, because the Assignes are omitted.

(In his Occupation) are words uncertain, sc. whether they shall be re­ferred 2 to the Plaintiff, who i [...] last named, or to the Testator, 7 H. 7. & 7. Ed. 6. Dyer 84 a. In a Trespasse brought by the Husband and Wife, for breaking their Close & bona sua capt. and pleaded of a Trespasse made to the Woman Dum sola fuit, for which the Writ abated.

The Plaintiff ought to shew that [...]ome land was in the possession of 3 Kocker and Crooke, for otherwise it is impossible that a Map should be made thereof, 12. H. 7. 8. a. & 6. H. 7. 6. a. If I am bound to infeoff ano­ther of all the Lands whereof my Father died seised in an Action ag [...]inst me, I ought to set forth the certainty of the Land whereof he died sei­sed. And although the Executor does represent the person of the Testa­tor, yet the Act of the Executor is not the Act of the Testator; not like to the Case of an Attorney, 32. Ed. 3. Bar 264. If one be bound to enfeoff another, it is sufficient if the Attorney be ready to make the Feoffment: and so in the 19. H. 6. the same Law to confesse an Action: but when an Executor does an A [...] for the Test [...]tor it is otherwise, as if the Executor sell Land, it must be so pleaded, for a dead person cannot sell Land.

And afterwards the Plaintiff discontinued his Suit.

Hillar. 13. Jac. Norris Plaintiff, against Henry Baker and Elizabeth Baker Defendants.

IN an Action of Trespasse for that the Defendants the 28. Octob. 13. Jac. by force and armes, &c. upon one Thomas Davis and Nicholas James Servants and Workmen of the Plaintiff, did make an assa [...]t, and them there labouring in the service of the Plaintiff did wound, &c. whereby the Plaintiffs lost their Service, to his damage of forty pounds &c.

The Defendants as to the forme and according did plead not guilty, whereupon issue was joyned: And as to the residue of the Trespasse, they say, that at the time of the Trespasse the said Henry was and yet is possessed of an ancient House with the appurtenances in Worcester, for divers years to come, the which house doth joyn to a void peice of land in Worcester against the South, and that at the time wherein, &c. and also time out of mind, there were ancient Windows or Lights in and upon the South-side of the aforesaid house against the said peice of land, through which the light did enter into the said house, and the said Henry did enjoy great and necessary Easements and Commodities by reason of the open Ayre and light shining and entring into the said house, by rea­son of the said Windows and Lights aforesaid: and the said Thomas Davis and Nicholas Jones, maliciously plotting and intending to deprive [Page 48] the said Henry of all the Easement and commodity of the aforesaid Win­dows and Lights, Et Messuagium illud horrida tenebritate obscurare: the said day and year did intend to build a house upon the said peice of land, and did there then erect divers peices of Timber for the building of the said house, which house if it had been built, the said Henry should have lost the said easements and commodities, wherefore the said Henry and the other Defendant who was his Servant by his commandment the said time wherein, &c. being in the said house, did hinder the said Thomas Davis and Nicholas Jones from building the said house, and the Defen­dants with a Staff did thrust down the said peices of Timber, where­with the said Thomas Davis and Nicholas Jones would have built the said house, and did thrust and put away the said Thomas Davis and Ni­cholas Jones, least they should build the said new house. Prout eis bene licuit, which is the same Assault and Battery of the said Thomas Davis and Nicholas Jones, whereof the Plaintiffs complain.

Vpon which Plea the Plaintiffs demurred in Law.

And I conceive the Iudgment ought to be given for the Plaintiff.

I Because the Defendants have made no answer to the first matter of the Action, which is the losing of the Service, for it is not shewne throughout the Bar that the said Davis and Jones did make the building as Servants to the Plaintiff, or by his commandment: and 2. H. 6. 13. In a Trespasse for cutting of Trees where the Defendant pleaded, that the place where, &c. was the Freehold of I. S. who let the same to the De­fendant at Will, and adjudged no plea by the Court, unlesse he had said by which he entred and cut the Trees, and so justified the Action, 3. H. 6. 54. In a Trespasse for beating of his Tenant, the Defendant said he was his Servant, and the Issue was whether he was his Servant or not? 31. H. 6. 12. B. 5. H. 7. 3. 20. H. 7. 4. and 20. H. 7. 5. A Master shall not have an Action for beating of his Servant, unlesse he saies, Per quod servitium amisit.

II The cause of Iustification is, because the Servants did endeavour to erect a Building which is not issuable.

III There is no cause of Iustification, for how can the Defendant know that the building will be to his hurt or nusance to him, untill the build­ing be erected, and if it be to his nusance he may abate the same by Law.

IV The Plea is double, for first they set forth that they had Lights, &c. and then they alledge that the new house was built, for the word, (if) is wanting, and 33. H. 6. 26. In an Action on the Case the Writ was good, Cum ipse habeat quoddam Cheminum ratione tenurae, &c. the De­fendant levavit murum per quod querens Cheminum habere non potest, &c. It was holden by Prisoit that the Writ was not good by reason of the Repugnancy.

And this Case was argued again by Barcley, for the Defendant, and by me for the Plaintiff,Judgment. Tr. 14. Jac. And all the Court held the Plea in Bar to be insufficient, for which Iudgment was given for the Plaintiff.

Rot. 256.Hillar. 13. Jacob. Edward Smith for the King and him­self, against Stephen Bointon.

IN an Information because, the Defendant between the twentieth of June, 12. Jac. and the fourth of July next after at Westminster in the County of Middlesex, did buy, ingrosse, and obtain into his hands by buying and contracting of divers persons unknown, three hundred quar­ters [Page 49] of Barley, of the value each quarter of twenty pounds, a hundred quarters of Beans of the value of twenty pounds every quarter, Ad re­vendendum contra formam statuti, &c. whereupon an Action accrued to the King and the Informer to have of the Defendant foure hundred pounds, viz. the value of the Barley and Beans, whereof the Infor­mer prayed a moyety, &c.

The Defendant as to the Ingrosment between the twenty second of May, 13. Jac. and the said fourth of July next after, pleaded not guilty.

And as to the Ingrosment between the said twentieth day of July, 12. Jac. and the said twenty second of May next after, The Defendant saith, that before the exhibiting of the said Information, sc. the twenty second of May, 13. Jac. one Robert Beadow did exhibite an Information in the Exchequer for the King and himself against the Defendant, because the Defendant between the first of June last, and the day of the said Infor­mation, did ingrosse five hundred quarters of Wheat, of price every quarter thirty pounds, five hundred quarters of Barley, of price every quarter twenty pounds, five hundred quarters of Oates, of price every quarter twenty shillings, and five hundred quarters of Beans and Pease, of price every quarter twenty shillings, Ad revendendum contra formam statuti, &c. And did aver that Stephen Bointon named in the first Infor­mation, and Stephen Bointon named in the last Information are one person and not divers, and that the said three hundred quarters of Bar­ley, and a hundred quarters of Beans specified in the last Information, are parcell of the aforesaid Barly and Beans in the first Informati­on, Unde petit judicium, of the said last Information, the said first In­formation depending determinable.

Vpon which Plea Mr. Attorney demurred in Law.

And I conceive that Iudgment ought to be given for the King and the Informer, for two reasons.

The offence in the first Information is alledged to be between the 1 first of June, 12. Jac. and the two and twentieth of May, 13. Jac. so that for any thing appears to the contrary, this may be done between the first of June, 12. Jac. and twentieth of July next, which is not any part of the time contained in the last Information, and then, that is no answer to the ingrossing between the twentieth of July, 12. Jac. and the two and twentieth of May next, unlesse he had averred in fact that it was within the time contained in the last information. 2

The twenty second of May, 13. Jac. is not answered to at all, and it may be that the Ingrosment was on that day, for the plea of Not guilty goes only between the two and twentieth of May, 13. Jac. and the fourth of Ju­ly next, and the last information is between the first of June, 12. Jac. and the twenty second of May, so that the twenty second of May is utterly ex­cluded, and that is part of the time contained in the last information. 3

The first Information is for ingrossing of Beans and Pease, being a mixt Grain, and the last Information is for Beans only, and Beans by themselves cannot be parcel of Beans and Pease, being a mixt Graine.

And after Iudgment was given for the King and the Informer,Judgment. and that principally for the second exception.

Michalm. 14. Jacob. Frosett against Walshe.

IN an Ejectment of one Messuage, ten acres of Land, six of Meadow, and thirty of Pasture in Mansell Lacy upon a Lease made by Hen Her­ing [Page 50] the younger, the twenty fourth of October, 13. Jac. to have from the twenty third of October last past, unto the twenty second of October next, &c.

The Defendant pleaded not guilty.

And the Iury found, that the said Tenements were Copyhold, par­cell of the Mannor of Mansell Lacy, devisable in Fee, and that there is a Custome within the said Mannor, that every customary Tenant of the said Mannor of any Inheritance may surrender the said Tenements out of Court into the hands of two customary Tenants of the aforesaid Man­nor, to the use of any person or persons and their Heirs, and that the said surrender by the Custome of the said Mannor ought to be presented at the next Court to be holden within the said Mannor, otherwise the sur­render to be void. And they found that one Thomas Herring was seised in Fee at the will of the Lord, according to the custome of the Mannor, of the said Tenements, and that he and Anne his Wife, the twenty se­cond of Decemb. the 28. of Eliz. at Mansell aforesaid, did surrender the said Tenements out of Court, into the hands of William Garrows and Hugh Ireland then being two customary Tenants of the said Mannor, to the use of Rowland Whittington, George Whittington, and Robert Whit­tington, and their Heirs, and that the said Rowland, George, and Ro­bert, by vertue of the said surrender, did enter into the said Tenements and held the same, and paid the Rents thereof that were due to the Lord, and that the said Thomas Herring before the Ejectment died, and that no Court was holden within the said Mannor during his life, nor ever since, and that the said Rowland Whittington afterwards and before the Eject­ment died, and the said William Garnar and Hugh Ireton also died before the Ejectment, and that the said Henry Herring is the Son and Heir of the said Thomas Herring, and that the said Henry the twenty fourth of Octo­ber, the 13. Jac. did enter and made the Lease to the Plaintiff, who did enter and was possest, untill the Defendant, as Servant of the said Row­land and Robert Whittington, the twenty sixth of October the same year, did enter and oust the Plaintiff.

And, if it seemed to the Court that the Defendant was guilty, the Iury found for the Plaintiff, and if otherwise, for the Defendant.

And I conceive that Iudgment ought to be given for the Plaintiff.

1 The Custome is precisely found that the surrender which is made out of Court is good, so it be presented at the next Court, so that here is a perfect assurance made according to the custome of the Mannor, which the Copyholder that surrenders cannot avoid, unlesse something fall out afterward that may avoid the surrender, for as to the Cases that have been put by the other side, that every Custome shall be taken strictly, and therefore the custome of Rent that saves the Land of him that is hanged for Felony, does not extend to an Attainder by Outlawry, nor the custome that an Infant of the age of fifteen years may make a Feoff­ment, does not warrant a Lease and Release. I agree all these to be Law; but I cannot conceive how any of them can be applyed to the pre­sent question, for I do not endeavour to extend this custome in any point beyond the true expresse Letter of the custome, viz. That the sur­render shall be good if it be presented at the next Court.

Object. 1 But there have been two things objected to impeach this surrender.

I That Herring who made the surrender is dead.

And as to that I conceive that the surrender is good, notwithstanding; for every Copyholder of Inheritance hath as good power to dispose of his land according to the Custome as a Tenant in Fee-sipmple hath by the [Page 51] Rules of the Common-law: for although he that comes in by surren­der, ought to be admitted by the Lord, yet all the Estate passeth from the Copyholder who surrenders, and the Lord is but an instrument to make the admittance, and he gives not the Estate; and therefore it follows, that the Estate is given by the Copyholder himself. Cooks Rep. 4. Charls Pennifathers Case, That Copyholders derive not their Estates from the Estate of the Lord, and therefore if a Disseisor or Tenant at sufferance do make an admittance upon a surrender, or upon a descent, this shall binde the Disseisee: and if Tenant for years of a Mannor, or a Tenant at will, does make a voluntary Grant ac­cording to the custom, this shall binde him in the Reversion: and the same Law of a Feoffee upon Condition. Dyer 342. And so if there be Lord of a Mannor wherein are Copyholds for life, and the Lord mar­ries, and grants Copies, the Wife shall not avoyd this. 9 Rep. Swans Case, and 4 Rep. Taverners Case: The Lord is but an instrument to make admittance, and he that is admitted shall not be subject to the charge of the Lord. And 4 Rep. Buntings Case, who surrendered out of Court, and dyed before the surrender was presented; yet it was re­solved and adjudged, that the surrender was good, and that it may be presented after his death: but if it be not presented according to the custom, then it becomes voyd. And so in Kite and Queintons Case: If he to whom the surrender was made dyes before the admittance, yet his Heirs shall be admitted. And Periams Case: The Feoffment is not good, unless it be presented in Court according to the custom: yet if the Feoffor or Feoffee dye, and after it is presented, this is good, as in case of a Deed delivered as an Escroul upon condition

The second is, that the two Tenants to whom the surrender was Object. 2 made, are dead also.

But this will not avoyd it: for nothing at all does pass from them, Answer. for they are but only witnesses of the surrender, and therefore it may as well be presented after their deaths, as in their life-time: as in 1 H. 7. 9. If a Iustice takes a note of a fine, although he dyes before it be certified, yet may it be certified by his Executors, and the Fine shall be good: and it is also resolved in Buntings Case, that th [...]ir death shall not hurt the surrender, but upon good proof it may be surrendered af­ter their deaths: as in 27 H. 6. 7. If a Feme sole does make an Ob­ligation, and delivers it as an Escroul to a stranger to be delivered upon condition, and she marries or dyes, and then the Condition is performed, and the Bond delivered, it is a good Bond: and so it is re­solved in Brags Case, and Butlers Case also: and it is not like to a Fe­offment with warranty of Attorney to make Livery, or the Grant of a Reversion, and the Feoffor dyes, or takes husband before Livery or Attornment; for there nothing passeth until the Livery or Attorn­ment, according to Littleton: and the Feoffee, if he enter, is but Tenant at will, and it lies in the power of the Grantor to counter­mand it, but so cannot he that makes a surrender out of Court.

Note, Perimans Case was here objected, That if the Tenant would not present the Feoffment, the Feoffee should have his Action on the Case; and the same Law, if the Lord will not hold his Court within the time: but there is no such matter in the Book. But in our Case, no Action can be against the two Tenants, to whom the surrender was made, having done no wrong, for they can make no presentment be­fore a Court be held: neither can any Action be brought against the Lord, for the not holding his Court, because he is not limited to a [Page 52] certain time to hold his Court; neither does the custom refer the pre­sentment to any time, but onely to the next Court: and admitting he may have an Action on the Case, yet is not that any reason that he should lose his customary Inheritance, and be contented onely with a personal Action, wherein he shall onely receive damages; and it may be also, that the party is insufficient, or may dye, whereby the Action will become fruitless. And it shall be a very great inconvenience, if the not keeping of a Court by the Lord shall hinder the surrender, when no time is limited when the surrender shall be, but onely at the next Court: for then those who argue against this surrender, ought to limit another time then the custom doth limit to make this present­ment: and what time will he limit? peradventure he that made the surrender will say, that the next Court ought to be holden the next day, or within a month; but this lies not in his power: for when the Custom, which is the very being and life of a Copyholder, hath limit­ed the next Court, no man can shorten that time, and the length of time cannot be material, and no time is material until the time be past that is limited by the Custom. And although it hath been said, that Customs shall be taken strictly, yet not so strictly, but they shall have a reasonable time of exposition according to the reason of the Common-Law: as in the 9 Rep. Sir Richard Lerchfords Case, where the custom was, that if the Heir of the Copyholder did not come to any of the three Courts upon proclamation, to claim his Copy, it should be forfeit: And Thomas Copley did dye the 27 of Elizabeth, William his son being then beyond the Seas, and the three Courts were holden, and the proclamations made, and he came not into Eng­land until the first of King James. But in our case, we are within the Custom: and although the surrender here is not perfect, until the presentment made in Court; yet the Plaintiff, being Heir to him who made the surrender, is bound as his Ancestor was; for he cannot countermand or avoyd the surrender, and therefore his entry was il­legal. And therefore Iudgment ought to be given against the Plaintiff.

And upon the Argument of this Case, Michaelm. 14 Jacob. Crook, Doderidge, and Haughton, did agree, that the Estate did remain in him who made the surrender, until he to whose use the surrender was made be admitted by the Lord: and this they agreed the Lord might do out of Court: and Haughton said, that the acceptance of the Rent by the Lord, that was found by the Iury, does amount to an ad­mittance: but the other on the contrary.

Judgment.Wherefore Iudgment was given for the Plaintiff.

Rot. 832.Trinit. 12 Jacob. John Gouge Plaintiff, Nicholas Hayward, and Jane his wife Defendants.

IN an Action of Trespass, wherein the Plaintiff declared, that Stephen, Bishop of Winchester, the 13 of March, 24 H. 8. did de­mise to Thomas Windham two houses, one now in the tenure of the Plaintiff, and the other in the tenure of the Defendant, in the parish of St. Saviours in Southwark, Habendum from Michaelmas last p [...]st, for the term of 99 years. And that the 16 of March, the 24 H. 8. the Prior and Chapter of the Cathedral Church of St. Swithin in Win­chester, in the life of the Bishop, did confirm the said Lease, that the 10 of May, 10 Eliz. Thomas Windley assigned over to Francis [Page 53] Westby, who assigned to William Fryth, who assigned to John Butler, who the last of September, the first of King James, by his Will did Devise to Ellinor his Wife, all his Lands and Tenements in the said Parish, and all Rents arising out of the premisses to come, from the day of the date of the said Will, for 28 years (if she shall so long live unmarryed) and after devised it to Thomas Butler his Nephew, to have to him and his Children, from the day of the death of the said Ellinor during the whole term. And further devised, that in case his Wife Ellinor should marry, then during the residue of the said 28 years, not expired at the time of her marriage, she should have the Messuage then in his tenure, being his Mansion-house (which house now is in the tenure of the Plaintiff, and an Annuity of 20 l. out of all his other Lands, Tenements, and Houses of the Devisor in the said Parish, with a clause of distress, and to detain the same until the said Annuity were payd to the said Ellinor: and if Ellinor did marry, he did devise all his said Lands (except the said Mansion-house) to the said Thomas Butler and his Children, and made the said Ellinor his Exe­cutrix, and dyed possessed. And the said Ellinor entered, claiming the Devise, and the 16 of January 1606. marryed the Plaintiff: and the 30 of April 1606. the Plaintiff and his Wife did agree to have the said Mansion-house, and the said Annuity, and Thomas Butler by their assent did enter into the residue.

And the 12 Jan. 1606. Elianor dyed.

And at our Lady-day, 12 Jacob. 10 l. of the said Annuity was be­hinde: wherefore the Plaintiff, the 26 of May 12 Jacob. did enter and take certain goods for the said 10 l. and would have deteined them in the name of a Distress, and the Defendants rescued them ad dam­num 40 l.

The Defendants pleaded Not guilty.

The Iury found the Lease made by the Bishop, and the confirma­tion with the several Assignments, and the Devise as in the Decla­ration is set forth (saving the Devise to the said Thomas Butler, from the day of the death of the said Ellinor) which clause was not found: and they found also, that John Butler, the 3 Novemb. 3 Jacob. dyed, and that Ellinor did enter, claiming by the Devise, and that she married the Plaintiff: and also their agreement to have the Mansion-house and Rent as a Legacy, and the entry of Thomas Butler in the residue by the assent of the Executor, and the death of Ellinor, and that the 10 l. was behinde, and that the Plaintiff took the goods, and would have detained them as a Distress, and that the Defendants rescued them. And if the Defendants were guilty, they found for the Plaintiff, if not, they found for the Defendant, &c.

And I conceive Iudgment ought to be given for the Defendants.

For first, I conceive that the Wife of John Butler had not any Rent 1 at all out of the house in which the Distress was taken.

If she had any Rent, yet it is determined by her death. 2

And I conceive the Case to be thus:

Lessee for years of two houses, does devise them to his Wife for 28 years (which is all the term) if she live so long unmarryed, and after her death to Thomas Butler: and if the woman marries, that she shall have one Messuage for the residue of the term, and 20 l. Rent ex omnibus aliis terris suis, with a clause of Distress; and then Thomas Butler shall have the other Messuage. The Devisor makes his Wife Executrix, and dyes; and the Wife enters, claiming by the Devise, [Page 54] and then marries the Plaintiff, and then they agree to have the house that was devised to her after her marriage, with the Rent; and Tho­mas Butler by their assent does enter into the residue: the Wife dyes, and the Plaintiff distrains for Rent behinde after her death, and the Defendants rescue the Distress, whereupon the Plaintiff brings his Action.

And as to the first, I conceive that the Wife can have no Rent by this Devise, and that for three Reasons.

1 Because the Wife did take the entire term as Executrix, and there­fore she cannot have a Rent out of the same term: and therefore I conceive it will not be denyed, that if Lessee for years deviseth a Rent to I. S. and makes him his Executor, and dyes, I. S. shall have no Rent, for in as much as he hath the term as Executor, he shall have no Rent as Legated, for it is extinct in the term; and although he hath one in his own right, and the other as Executor, yet cannot he have both together. 4 Ed. 6. B. Surrend. 52. If one hath a term as Execu­tor, and purchase the Reversion, the Lease is extinct. And although the term in our case is devised to a stranger, yet by the Law it does first vest in the Executor, and the Devisee cannot have it without the delivery or consent of the Executor. And if a Devisee does enter into a term, or takes goods without the delivery of the Executor, the Exe­cutor may have an Action of Trespass against him. 20 Ed. 49. 2 H. 6. 16. 11 H. 4. 84. 37 H. 6. 30. although in the 27 of Henry the 6. 8. a. diversity is taken between a thing certain and uncertain; for it is there said, that if the thing devised be certain, and a stranger takes it, the Executor shall have an Action of Trespass: but in old Nat. Bre. 87. there is no diversity.

So that it is clear, that the term first vesteth in the Executor, and so the Rent which the Executor had is extinguished by unity of pos­session.

Object. And whereas it hath been objected, That although the term does first vest in the Executor, yet when he assents to the Devise, he is then immediately in by the Devisor, and therefore the Rent is not ex­tinct.

Answer. I answer, That there the agreement does divest all the Estate that the Devisor had gained by his entry, but in our case the woman hath as high and right an Estate in the Land, as she hath in the Rent: and although there be a possibility of severing the Land from the Rent, yet that cannot revive the Rent being extinct; as if one hath Land of the part of his Father, and hath a Rent out of the said Land of the part of his Mother, the Rent is extinct, and cannot be divided, al­though he dye without issue. And that the Wife hath as high Estate in the Land, as she hath in the Rent, appears in Cook. 6 Rep. Sanders Case: where if an Executor commits waste before he assent to the Legacy, an Action of waste lies against him, which proves, that the Executor hath the term. And although the Devisee, after his assent, is in by relation by the Devisor, yet this will not ayd the Rent, no more then if a Son having Rent out of his Fathers Land, and the Fa­ther dyes, and the Son endows his Wife, this shall not revive the Rent which was extinct before, yet is the Wife in, as of the Estate of her Husband, and the Estate and possession of the Son is utterly defeated.

But admit that the Rent be not extinct, yet here is no agreement to have the Rent: for here are two Devises; 1. Of the Land to the Wife, if she continue unmarryed, the remainder to Thomas Butler: [Page 55] and the other of twenty pounds Rent to commence after her marriage, wherefore the assent of the Executrix to the Devise of the Land, is no execution of the Devise of the Rent, Comment. 5. 21. B. Welden and El­kingtons Case; If a Termor deviseth a Rent or a Common t [...] [...]ne, and the Term to another, and dies, and the Executor payes the Rent, or suf­fers the Devisee of the Common to put in his Cattell, this is no assent as to the Term, for the Term is one thing, and the profit out of it is another thing: but there in the principall Case the assent of the Execu­tor of the Devise to occupy the Land, was a sufficient assent to the Re­mainder of the Term, because the occupation of the Land and the Land it self is all one: and Comment. 541. the same agreed, and that the first assent doth go to all. And it is no assent to the Term, neither can it be taken by Implication to be any assent to the Devise of the Rent; for every Act that does enure to another Act by Implication, ought to be such as of necessity ought to enure to the other Act which cannot be taken to be otherwise, and therefore 2 R. 2. Attornment the 8th. A Woman grants a Reversion to which a Rent was incident, and afterwards marries the Grantee, to whom the Tenant payes the Rent, this is no Attornment, for it is indifferent whether he payes the Rent to him as Grantee, or in right of his Wife, Dyer 302. Vivors Case, que recover. Rents of severall Tenants, as Bayly, and then they be granted to him, and after the Grant they be paid to him, this is no Attornment, for they may be paid to him as he is Baily, as well as he is Grantee. But if the Lessee do surrender to him in the Reversion, then it is a good Attornment, for a Surrender cannot be to any but to him that hath the Reversion. And so in our Case it is cleer, that the assent to the Legacy of the Land it self, is not any expresse assent to the Rent, nor any implyed assent, for there may be an assent to the one and not to the other, and where the Wife had assented to the Devise of the Term, she hath utterly dismist her self of the Term as Executor, notwithstanding the assent to the Rent, but having once assented to the Devise of the Term, she hath no more to do with it, and therefore in such Case the Legatee of the Rent ought to sue in the Court Christian for his remedy against the Executor in the same manner, as if a Term were devised to one, and the Execu­tor will not assent to it, but sells the Term to another. And in this case if the Testator were indebted after this assent to the Devisee of the Term, the Term cannot be put in execution for this Debt, but the as­sent of the Wife is in her a Devastavit, 21 Ed. 4. 21. 37 H. 6. 30 2 H 6. 16.

Also here is no Rent devised out of this house, for the Devise is, Ex omnibus aliis terris suis, which word (all) excludes all the Lands wher­of any mention was made before.

And Coke Rep 1. Mildmayes Case: There Sir H.S. did covenant for a Ioynture for his life, and for the advancement of his Issue Male if he had any, and for advancement of his three Daughters, and for continu­ance of his Land in his blood, to be seised to the use of himself for life, and then of part to the use of his Wife for her life, with other remain­ders to his Issues Males and Females; Proviso, that it should be law­full for him to limit any part to any person for life or years, for payment of Debts or Legacies, preferment of his Servants, or other reasonable considerations. And then he did limit the part of one of his Daughters to another for the term of a thousand years, and this was adjudged a void limitation, and one principall reason was, because that the word (o­ther) cannot comprehend any consideration mentioned in the Inden­ture before the Proviso, and the advancement of his Daughter was men­tioned before.

Object. 2 But it may be objected that other Lands shall be understood such as shall be demised after her marriage, and so will not relate to the house whereof there was mention made before.

Answer. That this Obligation is against the recited resolution, for it may as well be said in this Case that (other considerations) shall be other then what are mentioned in the said Proviso, but it was resolved that (other) shall exclude all considerations mentioned before the said Indenture, and so he excludes in this case all mention before in this Writ.

And this Case was argued at the Bench, Pasch. 14. Jac. And all the Iustices did agree that all the exceptions taken by the Counsell of the Defendant, as well to the matter as to the pleading to be of no force, saving the principall point, sc. If the Rent shall be determined by the death of the Wife or not, and herein the Court was divided, viz. Haugh­ton and Crook held that it was determined, but Coke and Doderidge on the contrary. Et sic pendet, &c.

Hillar. 12. Iac. Iohn Harry and Lewis Howell, against Grace Harry.

IN a Writ of Errour brought to reverse a Judgment given in a Writ of Dower brought by the said Grace, of the endowment of Richard Harry her Husband: And the Error assigned was, because the demand amongst other things was, De tertia parte de uno Horreo & uno pomario, and the Tenants pleaded, Ne unques accouple in legall matrimony, which was cer­tified against them, whereupon Judgment was given against them; where­upon the Demandant did surmise that her husband died seised, and so pray­ed her Dower with damages, Et petit breve tam de habere facias seisinam quam de inquirendo de damnis, and the Writ of Error was purchased before the return of the said Writ, or any Judgment given thereupon.

And I conceive that it is Error, for the Demand ought to be as cer­tain and formall as a Writ, for the Writ of Dower being generall, De li­bero tenemento, the Demand ought to make it certain, and therefore it is of the same nature as the Writ is, 8. Ass. 29. 13. Ass. 2. 13. Ed. 3. br. 265. A Chappell or an Hospitall shall not be named but by the name of a Mes­suage; and 8 H. 6. 3. Praecipe quod reddat does not lye of a Cottage, and Cokes 11. Rep. Serbes Case, in an Ejectione firmae of a Close called Dumote Close, containing three acres, adjudged insufficient, for the name and quantity will not serve without the quality, and certainty ought to be comprised in the Court, because the possession is to be recovered.

And it was adjudged that the Error would not lye.

Loyde against Bethell.

HUmphrey Loyde brought a Writ of Error in the Kings Bench a­gainst Bechell and others to reverse a Recovery had at Cardiff in the County of Flynt, by Nicholas, John, ap Robert Loyde, to whom the Defendants are Heires, against John ap De ap Robert Loyde, for the now Plaintiff of Land in the County of Flynt, which Assise did begin in the time of Queen Mary, and did continue untill the Reign of Queen Elizabeth the third year; and Iudgment was given therein, whereupon the Tenant to the Assise brought a Writ of Error the 5. Eliz. in Easter Term, which did abate by reason of his death, and after in the time of King James the new Plaintiff brought a Writ of Error in Re­cordo [Page 57] quod coram nobis refidet, which did also abate by reason of varie­ty between the Record and the second Writ of Error, whereupon Mich. 13. Jac. the said Plaintiff did purchase this new Writ of Error.

And the Defendants did plead in abatement of the said Writ of Er­ror, that the now Plaintiff before the purchasing of the said last Writ of Error, and since the purchasing of the second Writ of Error, viz. the 19th. of September, the 10. Jacob. did enter into the said Land, and the same day and year at the place aforesaid did devise the said Tenements to one Thomas Alport. Habendum from the Feast of S. John Baptist then last past for four years next ensuing, by vertue of which Demise the said Thomas Alport into the said Tenements did enter, and was and yet is possessed.

Vpon which Plea the Plaintiff demurred, and the Defendants joyned.

And I conceive that the Plea is insufficient.

Yet I do agree that if he who hath cause to have a Writ of Error to reverse a Iudgment of Land, does make a good Lease for years, he hath suspended his Writ of Error for the Term; as he does quite extinguish it by his Feoffment.

But here it appears that there is no Lease made, for it is pleaded only that the Plaintiff did enter into the Land, and it appears by the recove­ry that his entry was taken away by the Iudgment in the Assise, where­by he gains nothing by his Entry but the Freehold and possession, does remain alwaies to the Defendants being Heirs to the Recovery, as ap­pears by Litt. Warrant. 158. If one be seised of Land, and another who hath no right doth enter into the Land and continues possession, yet doth he gain nothing thereby, but the possession doth alwaies continue in him that hath right, and so in the 3. Ed. 4. & 2. Woolocks Case, and in the Comment. 233. Barkleys Case: Execution is taken to be no plea in Bar to an Ejectment, because it was shewed that the Lord Barkley did enter as in his Remainder, and was seised in Fee untill the Lessor of the Plaintiff did eject him, and did demise to the Plaintiff, which is not good, because it is not alledged that he disseised the Lord Barkley, for o­therwise he had no Estate to make the Lease, and the Entry doth not imply any disseisin, or doth gain any possession, and 11 Edw. 4. 9. B. 12 H. 6. 43. B.

And the Court did agree that the plea was insufficient.

But then it was moved that the Writ of Error was nought, for the Writ was, that Quidem Recordum & processus Dom. Regina Elizabeth. nuper Regina Angliae (causa erroris interven.) venire sec. and it appears by the Record, that although the Recovery was removed by Writ of Error the 5. Eliz. at the Suit of the Father of the Plaintiff, yet the Plaintiff did purchase a new Writ of Error, Mich. 9 Jacob. and had a Scire facias against the Heirs of the Recover or who appeared, Mich. 10. Jacob. and also the Writs of Habeas Corpus, tales & Distringas, where­fore the Writ is naught, for all the Recovery was not in the time of the Queen, but part in her time, and part in the Kings time.

But I conceive that it is good enough, for first the Recovery and Processe is satisfied by transmitting the body of the Recovery, as it is proved by the usuall form of all Writs of Error, which is to certifie the Record and Processe, and yet they do certifie only the Declaration and the Pleas omitting the Writs.

Also the Record shall be intended the principall Record, and not the Writ and Proces, Coke Rep. 11. Metcalfes Case, the words of the Writ [Page 58] of Error, Si judicium inde redditum sit, this shall be taken to be the principall Iudgment, 39 Ed. 5. 1. In a Scire facias brought by John Duke of Lancaster, and Blanch his Wife. to execute a Fine levied to them in the time of Ed. 2. and the Writ did recite the Fine to be levied, Tenendum de nobis, &c. but it was adjudged good by Iudgment of Par­liament, and 2 R. 3. 4. Bough brought an Action of Debt against Col­lins, who pleaded a forreign Attachment in L. by custome, and did mi­stake the Custome, and it was traversed that there was no such Custom, and the major certified it so, and all this was in the time of King Edw. the first, and it was adjourned over to another Term, before which time the King died and resumed in the time of King Richard the third, and Iudgment given, whereupon Collins did bring a Writ of Error, which was, Rex Dei gratia, &c. quia in Recordo & processu & in reddi­tione Judicii loquela quae fuit coram nobis per breve nuper inter B. &c. error, &c. And the question was, if it was good. And some said that there was no Warrant for such a Writ, and some said, that the Writ ought to have been speciall, reciting how, &c. But the Masters of the Office said, that in a Writ of Error before the Iustices of the Bench, there is but a generall form in the Writ.

And after it was adjudged that the Writ of Error was good.

John Vandlore Plaintiff, Cornelius Dribble Defen­dant, Trinit. 14 Jacob. Rot. 1062.

IN an Action of Debt on a Bond of two hundred pounds made the e­leventh of Febr. the 12th. of King James, upon condition that the De­fendant shall perform the agreement of William Holliday, Thomas Moulson, Robert de la Bar, and Humphrey Burlemacke, Arbitrators e­lected, &c. to arbitrate of and for all Actions, Suits, Accounts, and Demands, had, moving, or depending in variance between the parties before the date of the said Obligation, so that the agreement of the pre­misses be made and put into writing before the twentieth of March next.

The Defendant pleaded that there was no such Arbitrement.

The Plaintiff replyed that the eighteenth of March, 12 Jacob. they did make an Arbitrement, &c. of and concerning the Premisses, that the Defendant should pay the Plaintiff fifty pounds, viz. twenty pounds at April next and twenty five pounds at [...] and the twentieth of July next twenty five pounds in full satisfaction and discharge of all such monies as the Plaintiff did claim or demand of the Defendant, by reason of the administration of the Goods, &c. of John Stadsell, or by any other means whatsoever. And that each of the parties upon payment of the said fifty pounds, shall make generall Acquittances one to the other of all Actions, Debts, and Demands, unto the day of the making of the said Acquittances: And alledged breach to be made in the payment of the said twenty five pounds the twentieth of April.

And whereupon the Defendant demurred in Law.

And I conceive that the Action will not lie: for the Arbitrement is bond, because the Arbitrators have exceeded their authority: First, because they have no power to discharge any action or duty accrued to any of the parties as Administrators: Secondly, because that by the Release, the Obligation it self to stand to the Arbitrement is dis­charged Cook. 10 Rep. 131. where Moor brought an Action against [Page 59] Bedell upon a promise to stand to the Arbitrement of A. and B. con­cerning all matters then in difference between them, and that was the last day of Novemb. 24 Elizab. And the 10 of Decemb. the 24 of Eliz. they did agree that Moor should pay to Bedell certain monies, and that Bedell should release all demands until the 15 of June 24 Eliz. and the Defendant, in consideration of this submission, did assume, that he would not sue any Execution upon a Iudgment. And the Plaintiff there assigned two Breaches; one, that he did not Release; the other, that he sued Execution. And this was found for the Plaintiff upon a non assumpsit, and entire damages given; and then after it was re­verst by Error, because that the agreement as to the Release was voyd; and therefore the damages being entire, the Iudgment was erro­neous.

And Michaelm. 11 Jacob. Rot. 155. Staires against Wilde, wherein an Action of Debt upon an Obligation to perform an award of and concerning all matters, &c. And they made an Award, that one should pay to the other 3 l. and that each should release all Actions and De­mands, and the breach was assigned in not paying the 3 l. adjudged to be a voyd Arbitrement in all, because it was to release all Actions at the time of the Release, which is not within the submission. And Pasch. 42 Eliz. Rot. 211. Knap against M [...]w, where the condition was to perform an Award of certain things, &c. who did award that one should pay 20 l. to the other, and that each should release all Acti­ons and Demands; and the breach was assigned in non-payment of the mony; and it was adjudged that the Award was voyd.

And at last all the Court agreed, that the Award was good, as to all that was submitted to, and voyd for the others, and that the breach being assigned in a matter submitted to, does give a sufficient cause of Action to the Plaintiff. Wherefore it was adjudged that the Plain­tiff should recover, &c.

Hillar. 13 Jacob. Smith against Whitbrook.

IN an Action on the Case for words, viz. for saying to the Plaintiff the 4 Septemb. 12 Jacob. Thou (meaning the Plaintiff) art a Traytor, and an Arch-traytor, and I (meaning the Defendant) will hang thee, or be hang'd for thee: and after the 15 Septemb. 12 Jac. the Defendant did procure the Plaintiff to be brought before Sir Robert Cotton, Knight, and Robert Castle, Esq; two Iustices of Peace of the said County for Oyer and Terminer, &c. and did complain to the said Iustices, that the Plaintiff had said and published divers Traytorous words of the King, by reason whereof the Plaintiff was committed to the Goal of the said County by the said Iustices, and there was imprisoned, and did so remain until the next Sessions of Peace of the said County, holden the 4 of Octob. 12 Jacob. before Robert Bell, Knight, Robert Payn, Knight, and other Iustices, &c. and the Plaintiff was compelled to finde Sureties for his appearance against the next Sessions, to answer to such things as should be objected against him on the behalf of the King, and in the mean time to be of good behavior, &c. At which next Sessions, holden the 10 Janu. 12 Jac. before the said Iustices, and other Iustices, the Plaintiff did appear; upon which, the Defendant the same day and year, in the publique Ses­sions, did say of the Plaintiff, I (meaning the Defendant) do accuse [Page 60] Robert Smith, meanining the Plaintiff, absolutely whereupon the Plaintiff was committed to the Gaol by the said Iustices, and there remained in prison for the space of a month: whereas the Plaintiff did never speak and Traytorous words against the King, nor had committed any Treason against the King; and this he layd to his damage of 1000 l.

The Defendant pleaded, that before the time wherein the said words are supposed to be spoken, viz. the third of Septemb. the 12 Jacob. the Plaintiff having speech of the King, did speak of him these Traytor­ous words; The King (meaning our Lord the King) is a scupry King: and so justified the several words, and also the procurement of the Plaintiff to be brought before the said Iustices.

The Plaintiff by Protestation saith, that he did not speak the said words of the King, and for plea did demur in Law, and the Defendant joyned.

Judicium.And after Iudgment was given for the Plaintiff, without reading the Record, or having any argument, because that the justification was insufficient; and the Record was not read, because it imported Scan­dal to the King.

Cooper against Smith.

IN an Action on the Case for words, scil. Thou and Waterman did kill thy Masters Cook (meaning one Yarnton late Servant of Fran­cis Dingley, Esq;) and thou wast never tryed for it, and I will bring thee to thy Tryal for it. The Defendant pleaded Nor guilty, and it was found for the Plaintiff; and it was moved in Arrest of Judgment, that it was not averred that the Plaintiff had a Master, and that Francis Dingley was his Master; but resolved that it need not be ave [...]d: for if he had no Master, yet it is a Scandal: as if one should say. Thou hast stoln the Horse of I. S. there is no need to aver that I. S. had a Horse; and if everment be necessary, it is averred here, when he said, Thy Masters Cook: and there it is averred, that the Cook was servant to Francis Dingley: and it follows also, that Francis Dingley was Ma­ster to the Plaintiff. Judgment. Wherefore Judgment was given for the Plaintiff.

Trinit. 14 Jacob. Weal against Wells.

IN an Action on the Case, for that the Defendant the 22 of Novemb. the 13 of King James, crimen Felonie querenti false & malitiose imposuit: and did cause him to be arrested and taken for the Felonious taking and stealing of five Heifers of the Defendant, and caused him to be brought before Sir Thomas Bennet, one of the Iustices of Peace, &c. and out of malice also, at the Sessions of Peace at the Guild-hall, London, before the Major and other the Iustices of Peace, &c. did cause him to be indicted maliciously and falsly for the Felony of steal­ing of five Steers the 23 Octob. 13 Jacob. and did cause him to be detained in the Gaol of Newgate, until he was legally acquitted at the Gaol delivery the first of December the 13 Jacob. to his damage, &c. 100 l. and did aver the matter in the indictment to be false.

The Defendant said, that the 18 Novemb. 13 Jacob. he was possess­ed of five Steers, and that certain Malefactors unknown to him did [Page 61] steal them from him at Broughton in the County of Bucks: and that the 22 of Novemb. 13 Jacob. the Defendant pursued them to London, and there did search for the Steers, and found them in the possession of the Plaintiff, and did require the Plaintiff to shew them unto him, and how they came into his possession: and because that the Plaintiff did deny to deliver them unto him, and did refuse to permit him to see them, and to shew how he came by them, and that the Plaintiff gave him such incertain answers, that the Defendant did suspect the Plaintiff had committed the Felony: and the Defendant, for better examination of the promisses, and restitution of the said Cattel, did inform the said Sir Thomas Bennet of the premisses, and did procure a Warrant from him to bring the Plaintiff before him to be examined concerning the said Cattel: whereupon the Plaintiff was brought before him, and examined; and because he could not make it appear how he came by them, and for that he gave very uncertain answers, and for that the said Sir Thomas did suspect him, he did therefore binde him in a Re­cognizance of 50 l. to appear at the next Goal delivery, and did binde the Defendant in a Recognizance of 20 l. to prosecute, whereupon the 29 Novemb. 13 Jacob. the Defendant did exhibit a Bill of In­dictment, and did give evidence to the Iury that the Cattel were stoln from him, and that he found them in the Plaintiffs possession, and that he denyed the Defendant the view of them, or to shew how they came to his hands: whereupon the Iury found the Bill, and thereupon the Plaintiff did appear at the next Goal-delivery the first Octob. 13 Jacob. and was there imprisoned until he was legally acquited; which is the same imprisonment for Felony, and procurement to be indicted, and detainment in prison, whereof the Plaintiff com­plains.

The Plaintiff confessed the Felony,Replication. but says that the 23 Octob. 13 Jacob. Thomas Burley was possessed of the said five Steers at Barnet in the County of Hertford, and did then and there sell the said Cattel in open Market to the Plaintiff for 17 l. being a Butcher; and that the said sale was entered in the Toll-book, and the Toll payd: where­fore the Plaintiff was possest of them, and did drive them to his house in London the 24 Octob. 13 Jacob. and that the 21 Novemb. 13 Jac. he killed four of the said Cattel: and then the said 22 of November the Defendant came to his house to search for the said Cattel, and the Plaintiff did acknowledg to him that he had the said Cattel, and that he had killed four of them, and that he had bought them as aforesaid, and did then also shew unto him the Steer that was then living, and that the Defendant had sufficient notice that the Plaintiff had bought the Cattel in the Market; and that although the Defendant did know that the Plaintiff had bought them, and was not guilty of the Felony, yet the Defendant out of malice, and against his knowledg, did charge the Plaintiff with Felony, &c. as he hath declared, absque hoc, that the Plaintiff did refuse to permit the Defendant habere visum of the said five Steers, or to shew how he came by them.

Whereupon the Defendant demurred in Law,Demur. and shewed that the matter of Inducement to the Travers was insufficient, and that the Travers was insufficient, and the matter not traversable.

And I conceive that the Plaintiff ought to have Iudgment.

For in the 7 Ed. 4.20. In a false Imprisonment: The Defendant said, that before the imprisonment one B was killed by certain per­sons, in whose company the Plaintiff was; and the report of the [Page 62] County was, that the Plaintiff was party to the Felony; whereupon he arrested the Plaintiff for suspicion, and did commit him to the Sheriff. And Bryan did Travers the Indictment without that, that the Plaintiff was in their company, and without that, that the report was so, &c. And Nidkam said there, that issue could not be taken up­on the report, but upon the matter in fact. For if men say in the Country, that I am a Thief, that is no cause to arrest me, but matter in fact ought to be shewed which is Traversable: whereupon issue was taken upon the first matter onely; and in the ninth of Ed. 4. it is holden that a man ought to shew some matter in fact to prove that the Plaintiff is suspected. And 11 Ed. 4. 46. in a false Imprisonment; The Defendant who justifies upon a false imprisonment for Felony, ought to shew some matter in fact to induce his suspicion, or that his goods were in his possession, of which the Country may take notice. And in the 17 Ed. 4. 5. in a false imprisonment, the Defendant justified, because that A. and B. did rob another, and did go to the house of the Plaintiff; whereupon the Constable did suspect him, and did re­quire the Defendant to assist him in arresting him, &c. and holden there, that they ought to surmise some cause of suspicion, or otherwise the plea was not good. 7 H. 35. Suspicion cannot be tryed, because it is but the imagination of a man, which lies in his own conceit. 5 H. 7. 4. In a false Imprisonment, the Defendant justified, because that A. was poysoned, and the common voyce and fame was that it was done by the Plaintiff, whereupon he was taken; and there it was argued, if this were sufficient cause; some said that he ought to shew some special cause, but it was agreed in conclusion that it was: but all agreeo, that suspicion only is not enough, without alledging cause of suspicion: and says, 2 H. 7. 16. and 7 Elizab. Dyer 236. In an action on the Case for calling one Thief, the Defendant justified for common voyce and fame, and adjudged insufficient; but this with suspicion had been sufficient cause to arrest one, and carry him to the Goal. And Michaelm. 38 and 39 Elizab. In the Common-Pleas, in an Action on the Case by Damport against Symson, for giving a false testimony, adjudged that the intent of the swearers cannot be put in issue or tryed. 2 H. 4. 12. B. 46 Ed. 3. 4.

2 H. 7. 3. In a Trespass, the Defendant justified that he was robbed in the County of B. and did suspect the Plaintiff in the County of Staf­ford: The Plaintiff pleaded, De son tort demesne, &c. and it was there agreed, that all the case was in issue. And Tow said, that it should be tryed by both Counties, if they could joyn; but he doubted if they could joyn: but in the 16 of H. 7. 3. B. this case is reported to be adjudged, that if the Counties could not joyn, it was no plea, be­cause it ought to be tryed by both: And so de son tort demesne shall be full of multiplicity, and therefore it is no plea, as in Crogates Case.

Also the Bar is not good, because the Defendant says, he was pos­sessed of five Steers, and doth not say, of the aforesaid. 9 H. 6. 16. In a Quare Impedit brought by the King of a Chantery in the Chappel of St. Thomas in D. and made title to it, and the Defendant pleaded that there was a Chantery in the said Chappel, and made title to it, and traversed the title of the King, and adjudged to be no plea, because he did not answer to the Chantry whereof the King had declared. And Pasch. 14 Elizab. Downing against Hayward: In a false imprison­ment in Suffolk, the Defendant did justifie as servant to A. to whom [Page 63] a Commission of Rebellion of Chancery was directed, and the Plaintiff pleaded De son tort Demesne, and found for the Plaintiff, and reversed again by Error in the Star Chamber, because that when the matter of justification, is upon matter of Record and matter in fact, or of matters done in two Counties that cannot joyn, the Issue ought to be upon one only.

And Pasch. 15 Jac. Iudgment was given against the Plaintiff by the opinion of Mountague, Crook, and Doderidge, because that all that was done after Sir Thomas Buriets Warrant was illegall, but they agreed that the Plaintiff might have an Action for the charging of Felony, and for all that was done before the said Warrant. But Haughton disagreed, who conceived that Iudgment should be given for the Plaintiff, because the Plea of the Defendant was no justification for what was done before the warrant: but at last Iudgment was given for the Defendant.Judgment.

Mills against Marshall.

IN a Writ of Error to reverse a Iudgment given for the now Defen­d [...]nt against the Plaintiff in the Common Pleas, upon an Action of Debt on a Bond of twenty pounds, Hil. 11 Jac. Ror. 1109. And the Bond was made the twentieth of Jan. in the sixth year of King James, and it was on Condition to stand to the Award of George Cockrell, Edward Sureton, and William Wasse, to arbitrate of and concerning all matters then depending between [...]hem, so that the said Award be made and de­livered to the parties, under the hands and Seals of the said Arbitrators before the twenty ninth of January next. The Defendant pleaded that the Arbitrators the twenty fourth of January, in the sixth year of King James, did make their Award of the Premisses by Indenture under their hands and Seals. 1. That all Controversies and Suits between them unto the date of the written Arbitrement should cease, and that the Plaintiff should have liberty to drive his Cattell to the River E [...]ke, &c. and that the Plaintiff and Defendant should work and maintain at all times from thence forward, a sufficient Hedge by the top of the Scar, Sicut terrae praedicti Querentis & Defendentis extendunt (Anglice) as their own Ground goes, for security of the Cattell and Sheep, which said Hill doth extend to the Land of Henry Facherly, unto the Pale which then was between the Land of the Defendant, and if any Trees or Woods growing in or neer the Woods of either party, shall fall in controversie at any time, that it shall be arbitrated by the said Arbi­trators, three or two of them, which Arbitrement was delivered to the parties the same day, and the Defendant pleaded that he had performed &c. The Plaintiff replyed, that the Defendant did not make a suffici­ent Hedge upon the top of the Scarr, Prout terra sua extendit, the De­fendant said that before the Writ purchased, viz. the fourth of April, 12 Jacob. at Eshdayle in the County aforesaid, he did make a sufficient Hedge upon the top of the Hill aforesaid, prout terra sua extendit, and so they were at Issue, and found for the Plaintiff, and Iudgment gi­ven, and the Defendant brought this Writ of Error.

And I conceive Iudgment ought to be affirmed.

Coke 5 Rep. Slingsbles Case. If one let white Acro to I.S. and B. Acre to I. D. and covenant with them, Et quemlibet eorum, that he is Owner, each of them may have an Action, and Coke 5. Rep. Hurgots Case, Submission to an Award, so as it be delivered to either of the parties, [Page 64] ought to be delivered to each of them, 39 H. 6. 7.

And all the Court did agree that each of them ought to inclose against his own Land only, and so the breach was well assigned, wherefore the Iudgment was well assigned: wherefore Iudgment was affirmed.

Hilar. 13 Jac. Crawley against Marrow.

IN an Ejectment upon a Lease by Robert Faldoc, dated the one and thir­tieth day of August, the thirteenth year of King James, of two Houses, two Orchards, forty acres of Land, ten of Meadow, and fifty of Pasture, in Bridgenorth, Habendum from the tenth day of the said month for three years, whereupon the Plaintiff was possessed untill the Defendant the eighth of October in the same year did enter and eject him, ad damnum, &c.

Vpon not guilty pleaded.

The Iury found the Defendant not guilty, for all except one House and five acres of Land, and found further, that before the said time, the twentieth day of Decemb. 11 Eliz. Rowland Hayward Knight, was seised in Fee of the said one house and five acres of Land, and ten of Meadow, and being so seised thereof, did enfeoff John Day and Robert Marshall in Fee, to the use of John Whitbrooke and Margaret his Wife in Taile, the remainder to the right Heirs of John Whitbrooke, and that the last of January, 12 Eliz. John Whitbrooke did enter into a Recognizance of a thousand pounds in the Chancery to Richard Faldoe, which money was not paid to Richard in his life time.

That John Whitbrooke and Margaret had issue John Whitbrooke Knight, and after and before the fourteenth of January, 8. Jacob. died, and before the said day Richard Faldoe made his Will, and did make Amphillis his Wife, his Executor and died, and Amphillis did make Robert Faldoe Esquire, and Thomas Shepheard Knight, her Executors and died, who undertook the Executorship, 14. Jan. 8. Jac. Robert Shep­eard and Faldoe had a Scire facias to the Sheriff of Middlesex, to have execution of the Recognizance, whereupon John Whitbrook was return­ed dead, whereupon they had a Scire facias against the Heir and the Ter­tenant, whereupon John Whitbrook was returned Heir and Ter-te­nant, who pleaded that he had no Land that was the Conusors at the time of the Recognizance, or ever since by hereditary descent from the Conuzor in Fee, and said that he ought not to be charged as Ter-tenant, because he hath no Freehold that was the Conusors.

The Plaintiff replyed, that the said John Whitbrook had divers lands by descent from the said Conuzor, viz. A house called the Hospitall, thirty seven Tenements or Messuages, five Cottages, one Tost, one Dove-house, thirty nine Gardens, six Barns, fifty four acres of Land, thirty nine of Meadow, and thirty six of Pasture in Bridgnorth, and that the said John Whitbrook was Tenant of the Premisses as of his Freehold; whereupon Issue was joyned, and found for the Plaintiffs, and adjudged that they should have execution against Sir John Whit­brook, whereupon the Sheriff was commanded to deliver the said lands to the Plaintiffs in execution, and the sixteenth of June, 12 Jacob. the said Tenements were found to the value of eighty shillings, and were delivered to the said Executors in execution.

The twenty seventh of March, 11 Jacob. Hanging the Writ of Scire facias, the said Sir John Whitbrook did demise to the Defendant one [Page 65] Messuage and ten acres of Meadow, parcell of the premisses Habendum from the said twenty seventh day for the term of three years, by force whereof he entred and was possessed.

The sixteenth of June, 12 Jacob. the said Executors did enter into the Tenements in the Inquisition mentioned, whereof the said Messuage, five acres of Land, and ten of Meadow are parcell, and did out the De­fendant.

The one and thirtieth of August, 13 Jacob. Robert Faldoe made the Lease to the Plaintiff, and they found the Ejectment, and prayed the advice of the Court.

And I conceive Iudgment ought to be given against the Plaintiff.

For that a Tenant in Taile cannot charge the Land no more then he can alien, 3 Ed. 3. 46. so in the 18 Ed. 4. 5. 21. If Tenant in Taile do sell the Trees and dye, the Vendee cannot have them, and the 17 Ass. 21. Tenant in Tail acknowledgeth a Statute and dies, the Issue en­ters, and the Conusee does sue execution and enters, and the Issue brings an Assise and recovers, because this is a Disseisin to him, and 11 H. 7. 21. 31 Ed. 3. 22. 14 Ass. 3. Tenant in Tail grants a Rent and dies, and the Issue enfeoffs a stranger, adjudged that he shall hold the Land discharged, for it was discharged by the entry of the Issue, and 26 Ass 38. If Tenant in Tail doth charge the Land and dye, and the Issue enters and p [...]yes the Rent, and then after confirms the Rent, this is good: But in Brook Grants 73. contrary, for the charge was avoided by the entry of the Issue.

But admit that this Recognizance shall bind the Issue in Tail, yet it shall not bind the Termer, but he shall avoid it, 1 H 7. 9 7 H. 7. 11. and in the 30 Assise 10. the Tenant pleads recovery by Action tryed a­gainst a stranger, and did aver the Estate of the Ancestor of the De­mandant to be between his Title and the Recovery, the Demandant said, that the stranger was enfeoffed with Warranty, and did not plead this, and so did Fauxesie, and Iudgment was awarded for him.

And although that this Lease was made after the Teste of the Scieri fa­cias, it is not materiall, because the Lessor had good power to make a Lease, and the Land was not subject to the execution, and therefore the Lease here is good and cannot be avoided, but only by the default of the Lessor in not pleading the Estate-tail, and that is especially aided by the Statute, because the Statute does aid the Lessee against such f [...]ign­ed Recoveries against the Lessor, and it is no Recovery untill the Iudg­ment had, at which time the Lessee had a good Lease not subject to the execution, 21. H. 6. 13. & 14. He who comes to the Reversion, hanging the Praecipe quod reddat against the Tenant for life, shall be received by the Statute of Westm. 2. cap. 3. and 16 H 7. 5. In a Writ of Entry or Disseisin, he in the remai [...]der does pray to be received, the Deman­dant traverseth that he hath nothing in Reversion at the time of the Writ purchased, and could not, for if he purchased the Remainder hanging the Writ, he shall be received.

And Hill. 14 Jacob. All the Court did agree,Judgment. that the Lessee for the Lease made after the Verdict against the Issue in Tail, could not falsi­fie, wherefore Iudgment was given for the Plaintiff.

Penson against Mootham.

IN an Action of Covenant, for that by Indenture Tripartite, dated the fifth Decemb. 12. Jacob. It was between Abraham Baker by the name of Abraham Baker Owner of the moyety of a Ship called the Grissell of L. and of the Ship called the Peregrine of L. and of a Pinnace called the Hopewell of L. on the first part, and the Plaintiff by the name of H. P. Ow [...]er of the other moyety of the said Ships and Pinnace on the second part, and the Defendant by the name of Ja. Mortham Nautestrategi dicti Itineris (Anglice) generall of the said Voyage. N. N. B. W. and D. E. by the names of N.G. Naute magister dictae navis vocat le Peregrine. B. W. Naute magister dict. navis vocat the Grissell, and D. E. Naute Magister of the said Pinnace, and severall persons named in a Schedule annexed to the said Indenture on the third part; It is testified and doth appeare, that the said Owners had furnished and set forth, and the said Victualer had victualed the said Ships as well for Trade as for Discovery, and had delivered them to the said Generall, Masters, and Officers pro itinere faciend. in such manner, and to such an Island in the West-In­dies, or otherwise, as it should be most profitable to the said parties, at the discretion of the said Generalls, and according to certain Articles of the Commissioners, bearing date with the said Indenture, and after their Voyage to return to the Port of London: And that the said Gene­ralls, and each of the said Masters and Officers severally, for each ones proper and severall part, and not the one for the other, did Covenant for themselves, their Executors and Administrators, with the said Ow­ners severally, and their severall Executors, &c. in manner, &c. and that they the said Generalls, or the severall Masters and Officers, their Executors or Assignes, at any time during the said Voyage should go beyond the Cape of Good hope, nor should do or commit any spoyle or losse to any of the Subjects of our Lord the King, nor to any other per­son or persons, being subject or in subjection to any Prince or Principa­lity being in league or amity with our King, nor shall do any thing whereby any detriment, prejudice, trouble, or damage may come to the said Ships or Pinnace, or any of them, or to the said Owners or any of them respectively.

Breach. 1 And that although the Plaintiff had performed all, &c. yet the said D.E. and the Commissioners aforesaid, in the said Ship called the Hope-well, during the said Voyage, to wit, the eighth day of March, upon the high Sea neer the Isle of Saint Jago, by force and armes did take and spoyle one Spanish Frigot laden with Rice, &c. which Sip and Goods were the Ship and Goods of divers persons who were Subjects to the King of Spaine, the which King then was and yet is in amity and league with the King, and the Defendant and the other Commissioners comming to the said Island, did divide the said Goods amongst themselves.

Breach. 2 And that after, Viz. the ninteenth day of June, 13 Jacob. at a Port called Cape Corants beyond the Seas, one Matthew Navale did joyne with the Defendant, and the sayd Commissioners and they toge­ther did saile to the Coast of Champeach in the West-Indies, and did there put a shoare the said Hope-well, and three other Ships, and there then [Page 67] upon the high Sea, by force and arms, did take and spoyl another Spa­nish Frigot laden with 100 Hides, which Ship, and the goods in her, was the Ship and goods of divers persons subject to the King of Spain, then and yet in league with the King.

And that after, to wit, the 20 Junii, 13 Jacob. at the Town of River Breach. 3 de Garta in the West-Indies, the said Defendant and the others, &c. by force and arms did take and spoyl another Spanish Frigot, laden with 150 Hides, which Ship and goods were the Ship and goods of divers persons subject to the King of Spain, then and yet in league with the King.

And that also then the said persons, by force and arms, did take and Breach. 4 spoyl a certain Town beyond the Seas, and from thence did take and carry away twenty Iars of Hony of the Goods and Merchandize of the Inhabitants of the said Town, being subjects of the King of Spain, and then and yet in league with our King.

And also there by force and arms did take and spoyl another Spanish Breach. 5 Frigot, laden with 63 Chests of Coucheneal, and 700 Hens, &c. of the goods of divers persons, being subjects of the said King of Spain, then and yet in league with our King.

And that the Defendants did not come to the Port of London after their return, &c.

And concluded that the Defendant did not keep his Covenant to make no spoyl, or to do any act, whereby any detriment should come, &c. ad damnum 3000 l. &c.

The Defendant, as to the said five first Breaches did demur in Law, because they were not alledged in such manner as any issue or tryal may be had.

And as to the other, he pleaded that the Plaintiff did prohibit him from coming to London.

And it seems that Iudgment ought to be given upon the demur a­gainst the Plaintiff.

For first, there is no covenant to binde the Defendant, for the words 1 are, & praedictus State-General doth covenant, and there is no other name in the Covenant given to the Defendant, and that is not suffi­cient to binde him: 1. Because he is not named State-General before, but Naute Stratageneral. 2. This is no parcel of his name before, or addition, but is as his title, or is a pronomen, and that is not suffici­ent, for the pronomen is but as an alius dictus. 5 Ed. 4. 141. Alexan­der Cock, Clericus, alius dictus A. C. nuper de D. in Comitatu, &c. Clerico is no good addition, because there is no addition but in the alius dictus. And Dyer 119. Robert Thrower brought an Action of Debt upon a Bond by the name of Robert Thrower, otherwise called Robert Throner, Keeper of the Kings Gaol at Ludgate, and the Defendant pleaded the Statute of 23 H. 6. 1. And it was adjudged, that it shall not be presumed that he was Gaoler, for it may be false. As a Bond of I. S. Son and Heir of I. S. yet he may be a Bastard, and a Bond by A. the Wife of I. S. who is sole, is good notwithstanding. And Dyer 304. B. in an Ejectment the Plaintiff declared of a Lease of 100 acres of Land, by the name of the Mannor of D. habendum the Mannor and the premisses, &c. whereupon he entered into the Mannor and premisses. Quaere. If it be good, and agreed to be sufficient by the word premisses.

There is no breach assigned, for as to the first breach, that is onely 2 that D. E. and his company did take, &c. a Spanish Frigot, and that [Page 68] is no breach of covenant in the Defendant, for that the covenant is not several: as in the 5 Rep. Slingsbies Case: If a Lease be made of W. acre to I. S. and a Lease of B. acre to I. D. and the Lessor covenants with them, and either of them, that he is owner, &c. each of them shall have an Action of Covenant according to their several interests: so in case of a warranty, but otherwise where the in­terest is joynt. Vide 5 Rep. Mathewsons Case. And so here, the Co­venant of the Defendant doth extend onely to himself and his Ship, and not to D. E. and his company: and the allegation, that the De­fendant and his company did come to the said Island, and divided the goods, is nothing to the purpose; for it may be they bought a moyety thereof, or any part of them, and so they might l [...]wfully divide them. 27 Assis. 69. In an Appeal, for that one did receive stoln goods, know­ing of the Felony, adjudged not good.

And as to the second breach, it is not alledged that the spoyl was made during the Voyage, and if it were not during the Voyage, it is no breach: and in as much as the Plaintiff hath not set forth that it was done during the Voyage, it shall be taken most strongly against himself. 26 H. 8. Pleadings 6. 3 H. 7. 2. Dyer 89. And so in all the other three breaches it is not alledged that it was done during the Voyage.

3 It does not appear that these goods thus taken were the goods of the Subjects of the King of Spain at the time of the taking of them, but onely quod fuerunt bona: which doth denote a time past, and doth not import any present property; and it may be very probable that they were their goods, and that they were bought of them by some per­sons under the obedience of a King, not in amity with our King, and then it is no breach; for [fuerunt] is so uncertain, that it may be 20 or 40 years past.

4 Also it is declared, Quod fuerunt bona diversarum personarum existen­tium subditorum Regis Hispaniae: the which word [existens] doth refer to the time of the Declaration, and not to the time of the taking; for although in the 27 of H. 8. 15. and 28. that the word [existens] in Deeds may, in respect of the subject matter, be applyed to the future time, yet in all course of pleading it shall be taken for the present time; as in an Indictment upon the Statute of 8 H. 6. for forcible entry into Land, Existens liberum Tenementum I. S. is not good, be­cause it doth refer to the time of the Indictment, and not of the entry.

And so in the 21 H. 7. 30. A condition to discharge one of all Escapes of all Prisoners in the Goal, this shall extend onely to Prisoners at the time of the Oligation made. And it may very well be, that they were the Subjects of one who was not in league with the King at the time of the taking, and yet may be at the time of the Declaration the Subjects of the King of Spain.

5 I conceive, that the Plaintiff ought to alledg, that these spoyls were to the damage of the Plaintiff.

6 I conceive, that he ought to have named one of the Subjects of the King of Spain, and not to leave it so uncertain to the Iury, as to have them charged to enquire of all his Subj [...]cts, for the Plaintiff takes notice of the persons, that they were the Subjects of the King of Spain, and therefore he may as well know their names. Dyer. 99. & 285. An Indictment of Murder of one unknown, or stealing the goods of one unknown, is good, because he may be discovered.

And after the Plaintiff discontinued his Suit.

Holland and others against Jackson and others.

RIchard Holland and Margaret his wife, one of the daughters and heirs of the body of Sir Robert Langley, Knight, and William Dausey and Ann his wife, the other daughter of the said Sir Robert, brought a Writ of Error to reverse a common Recovery had at Lan­caster, die Lunae, 13 Elizab. In a Writ of Entry sur Disseisin in the Post, between the said Francis Jackson and Henry Oyden Plaintiffs, and Robert Leigh and James Haye, Tenants of 22 Messuages, 10 Cot­tages, 20 Tofts, 22 Gardens, 20 Orchards, 300 acres of Land, 200 of Pasture, 40 of Wood, 500 of Furze, 100 of Turbary, &c. with the appurtenance, in Alkerington and Prestnitch, wherein the Tenants did vouch Thomas Leigh and Katherin his wife, who did appear by George Butler their Attorney, who entred into warranty, and did vouch William Forster present in Court, who did warrant, &c. ad damnum, &c. for that before the purchase of the said Writ of Entry, and since the 27 H 8. Sir Robert Langley was seised in see of the said Tenements, and thereof did infeoff Thurston, Tilsley, Fitton, and Hopwood in fee, to the use of himself for life, and after to the use of the said Ka­therin in T. the remainder to the use of the right heirs of the body of the said Sir Robert, the remainder to the use of his heirs.

Sir Robert was seised for life, with remainders over, &c. and then Sir Robert dyed seised, after whose death the said Tenements did re­main to Katherin in Tayl, the remainder to Katherin and the Plain­tiffs, Margaret and Ann, and one Dorothy, as daughters and heirs of the body of Sir Robert; the Reversion to the said daughters and their heirs: whereupon Katherin did enter, and was seised in Tayl with Remainders as aforesaid, and did marry Thomas Leigh, whereupon the said Recovery was had in manner and form as aforesaid, after which Recovery Thomas Leigh and Katherin did dye, without issue of the body of Katherin, and Dorothy dyed also without issue, whereby the right of the said Tenements did remain to the said Margaret and Ann, as daughters and heirs of the body of the said Sir Robert.

The Writ of Recovery was certified, and the Plaintiffs assigned Error; for that Katherin was within age at the time of the appearance of her and her Husband by the said Attorney, and was within the age of 21 years at the time of the Iudgment (to wit) of the age of eighteen years, and no more.

Hereupon a Scire facias was awarded against the Recoverors, who being returned dead, a Scire facias was awarded against the heirs and Ter-tenants, whereupon Ambrose Jackson was returned son and heir of the said Jackson; and Thomas Hulm, and Margaret his wife, and Isabel Ogden, daughters and heirs of the said Ogden, and William Ogden and others were returned Ter-tenants; and the heirs and Ter­tenants did appear, and pleaded several Pleas, some to the Writ, and some in Bar, and after, the Writ of Error was discontinued.

Hillar. 11 Jacob. The Plaintiffs purchased a new Writ of Error of the said Tenements (omitting the Rent) and assigned the said Er­ror: whereupon a Scire facias was awarded against the Heirs and Ter-tenants, which was returned, (to wit) that Margaret Hulm was dead without issue, and thereupon a Scire facias was directed to the said Jackson and Ogden, the Heirs, &c. and Katherin Leigh, and Ro­bert [Page 70] Leigh, and fourty other Ter-tenants, who did appear, and there­upon: Whereupon the said Error was assigned.

The Ter-tenants did plead, that John Chatterton was Tenant of a Cottage, &c. in A. aforesaid, parcel of the said Tenements.

The Heirs pleaded in null. est errat.

The Plaintiff did acknowledg the Plea of the Ter-tenants, and thereupon a Scire facias was awarded against John Chatterton, who did appear, and the Plaintiff did assign the said Error: whereupon Jane Jackson one of the Ter-tenants did plead, that Katherin was of full age, &c. whereupon issue was joyned.

And George Chatterton and ten others of the Ter-tenants did plead non-tenure.

And the Heirs of the Recoverors did plead in null. est errat.

And Mary Taylor did plead, that before the Recovery, a Fine was levyed the 4 Septemb. 13 Elizab. between the said Robert Leigh and James Haye Plaintiffs, and Thomas Leigh and Katherin his Wife, Deforceators of the said Tenements: whereupon the said Thomas and Katherin did acknowledg the said Tenements to be the right of the said Robert, &c. with warranty against them and the Heirs of Ka­therin; which Fine was proclaimed, &c. and was to the use of the Conusees and their Heirs, until the Recovery should be perfected: and then the seventh of March, the 13 Eliz. the Writ of Entry was pur­sued, which was to the use of Thomas and Katherin his Wife in Tayl, the Remainder to Thomas and his Heir [...].

Thomas and Katherin did demise to the said Mary a Cottage and three acres of Land, parcel of the said Tenements, for life, &c. where­fore she did demand Iudgment of the Writ against the Fine with proclamations.

Robert Leigh and 28 others of the Ter-tenants did plead the said Fine with warranty, and that Katherin dyed without issue, and that Thomas was seised in fee, whose estate they have, and that Thomas dyed, and that after the death of Katherin, the said warranty did descend to Margaret and Ann as sisters and heirs of Katherin, and did demand Iudgment if they should maintain this Writ against the said Fine, and against the warranty.

The Plaintiffs, as to the said several pleas of non-tenure, in null. errat. the fine with proclamations, and the warranty, did severally demur in Law, to which the Defendants did severally joyn.

And I conceive that the Writ of Error does well lie, and that the Recovery is erroneous, and therefore ought to be reverst.

And for the Argument of the Case, I shall divide it into three parts:

1 If the Writ of Error will lie? 1. In respect of the Plaintiffs: 2. Notwithstanding the plea of non-tenure pleaded in abatement thereof by Chatterton and ten others of the Ter-tenants.

2 Whether there be any Error in the Recovery? and if it be such an Error as the Plaintiffs may assign?

3 If the Plaintiffs be barred thereof by the pleas in Bar, to wit, the Fine with proclamations pleaded by Mary Taylor, and the warranty pleaded by Robert Leigh and 28 others of the Ter-tenants, or by any of these pleas, or not?

And as to the first, If he in remainder, depending upon an estate in Tayl, may maintain a Writ of Error to reverse a Recovery against the first Tenant in Tayl, after his death, without issue. And I con­ceive [Page 71] clearly, that he in the remainder shall have a Writ of Error; for the Writ of Error doth always pursue the nature of the Land, and not the privity of the blood.

And therefore 5 H. 8. the Writ of Error shall go with the Land, and therefore the Heir in special tayl shall have it, although there be another Heir at the Common-Law. And so in Fitz Herb. N. B. 21 K. He who is Heir to the Land that is lost, shall have a Writ of Error, and not the Heir at Common-Law: as if Land in Borough-English be lost by erroneous Iudgment, the younger Son shall have a Writ of Error: and 3 H. 4. 19. The Heir in special tail shal have the Writ of Error, although there be another Heir at the Common Law. And 1 Mariae, Dyer 90. Verneys Case: The Writ of Error shall be brought by him who had the thing whereon erroneous Iudgment was given.

And as the especial Heir shall have the Writ of Error, so shall he also in remainder or reversion upon an Estate for life, after the death of the Tenant for life. 4 H. 8. 21 H. 6. 29.

But the sole Objection, that hath any coulor against this was, Object. that this Writ of Error ought to be given to him in remainder by the Common-Law, for it is not given by the Stat [...]te of the 9th of Rich. 2. and then there can be no remainder upon an Estate tail at the Com­mon-Law, and therefore he in such remainder cannot have any Writ of Error.

But this is easily answered, for the Common-Law being, Answer. that when an erroneous Recovery is had against a p [...]rticular Tenant, that he in the Reversion or Remainder shall have a Writ of Error after the determination of the particular Estate, it follows, that when this new particular Estate is made by the Statute of Westm. 2. he in the remainder shall have the same remedy. And this is proved by the case of the Tenant in Tayl, for although that his Estate was not at the Common-Law, yet now he shall have all Actions which the Common-Law gives to a Tenant in fee, which may stand with his Estate; and therefore he shall have a Writ of Escheat, a Quod per­mittat: Nat. B. 124. 4 Ed. 5. 48. Nat. B. 212. and so he shall have an Assize, and many other Writs, which lie for a Tenant in fee at the Common-Law.

And for Authorities in this point, Dyer 188. That he in the re­mainder after the Estate-tail spent, shall have a Writ of Error, and so is it in Dyer 40. in Verneys Case. And in the 3 Rep. fol. 3. B. if is resolved, that he who hath a remainder expectant upon an Estate in Tayl, shall have a Writ of Error upon a Iudgment given against the Tenant in Tayl, although there were no such remainder at the Common-Law; for when the Statute de Donis Conditionalibus does enable the Donor to limit a remainder upon the Estate-tail, all acti­ons which the Common-Law doth give to the privies in Estate, are by the same act as incidents tacitly given also according to the rule of the Common-Law: and therefore as he in Reversion or Remainder upon an Estate for life, shall have a Writ of Error by the Common-Law upon a Iudgment given against a Tenant for life, although that they were not parties by Hyde, Pryer, Voucher, &c. so since the Sta­tute de Donis conditionalibus shall he have, who hath a Reversion or Remainder expectant upon an Estate in Tayl. And therefore I conceive the Writ of Error is good, notwithstanding that Ob­jection.

But now it is to be considered, if this Plea of non-tenure shall avoyd the Writ of Error? and I conceive it will not, for three Rea­sons: 1. I conceive that it is no plea to abate the Writ, for the Plain­tiffs might have reversed the Recovery against the Lessors of the Re­version onely, without having made the Ter-tenants parties; for the Writ of Error being grounded upon the Recovery, does always lie a­gainst the parties to the Iudgment, and their Heirs, and may be reversed against them, although they have nothing in the Land: and this is clear by Nat. Brev. 107. and 26 Assis. 12. A Writ of Error does lie against him who recovers, and after the Error found, a Scire facias shall issue against the Tenant: and 42 Assis. 22. and 44 Ed. 3. and 10 Ed. 4. 13. Non-tenure is no plea in a Writ of Error, for the party to the Iudg­ment or his Heir. And here in this case, if those who have pleaded Non-tenure are not Tenants, they are at no loss, for they can lose no­thing; but this plea does discharge themselves onely, and the Scire fa­cias remains good against the Heirs, and the other Ter-tenants.

2. If Non-tenure could be a good Plea for the Ter-tenants in a Scire facias, yet at the least it ought to be in such a Scire facias wherein the Ter-tenants are named, and not in such a general Writ as this is. For here the Plaintiffs have pursued their Scire facias in as good a form as may be, viz. generally against the Heirs and the Ter-tenants; and if there be any default, it is in the Sheriff who hath returned those to be Tenants who indeed are not so, and it shall be very hard if the Writ should abate for default of the Sheriff. 20 Ed. 3. Scir. facias 121. In a Scire facias on a Recognizance against the Ter-tenants, it was said that one of them that ware warned had but a Lease for years of such a one who had the Freehold. Iudgment of the Writ, &c. And there Birton said, That the Sheriff had a general command to warn the Ter-tenants, wherefore this is no Plea to the Writ. And Hill and Wilby answered that it was otherwise, for that the Plaintiffs at their peril should name the Ter-tenants in their Writ: whereupon there was a new Writ.

Whereupon I observe that if the Writ be special, naming the Ter-tenants, as it was anciently, then it ought to be so: but of late such course hath been changed, as appears by the 8 of H. 4. 18. and the Writ awarded generally, and therefore such special Non-tenure shall be a good Plea, for it is the default of the Plaintiff to pursue his Writ against one who is not Tenant, but when the Writ is general, Non-tenure is no Plea to the abatement of the Writ. 48 Ed. 3 15. 8 H. 18. 48 Assis. 2. and the 2 H. 4. 18. B. In a Writ of Account against the Sheriff of Northumberland of a Receit in Newcastle upon Tine; and it was pleaded that Newcastle was a County of it self: but because it was made a County since the Teste of the Writ, the Writ was ad­judged to be good.

3. These Ter-tenants are estopped to plead Non-tenure, because that they with the residue, at first did plead that John Chatterton was Tenant of parcel of the Land, by which Plea they have taken upon themselves to be Tenants of the Land, and therefore they cannot af­terwards plead Non-tenure. 41 Ed. 3. 4. In a Praecipe quod reddat against I. S. who pleaded to the Writ, and the Writ abated, where­upon the Writ did abate, and a new Writ brought for Jornies Ac­compts against I. S. he shall not plead Ioyntenancy with the other, because he hath admitted himself sole Tenant by the first Writ. 33 H. 6. 3. In a Formedon against the Husband, who pleaded Ioyntenancy [Page 73] with his wife, for which the writ a bated, and a new writ was purchased against the husband and wife, who pleaded non-tenure, and adjudged a good plea for the benefit of the wife, but if the last writ had been against the husband only, he could not have pleaded non-tenure.

22 H. 6. 54. B. In a Praecipe quod reddat, the Tenant pleaded Non-tenure, the Demandant said, that before he brought another Writ against the Tenant, and I. S. who made default, for which a Grand Cape was awarded, upon which I. S. made default, and the now Tenant said, that he was sole Tenant, and waged his Law of Non-summons, which the Demandant did acknowledge, whereupon the writ abated, and this Writ purchased by Jornies Accounts, and there it is argued if he shall have advantage of this, because the first Writ did a­bate by his own default, but it was agreed, that if he could have such ad­vantage, the Tenant shall be estopped to plead Non-tenure, and adjud­ged that the Tenant shall answer.

42 Ed. 3. 16. In a Praecipe quod reddat, one took the severall Tenan­cy on his part, and the other of the other part, and they were estopped because that a former proces was against them and others, and they took the entire Tenancy upon them, without that, that the others had any thing, and did gage their Law of Non-summons, wherefore the first writ did abate, and this writ purchased by Journies Accounts.

And so in our Case, when all the Tenants have pleaded that I. C. was Tenant of parcell not named in the returne, they have taken the Tenancy upon them, and therefore they cannot afterwards plead Non-tenure.

And now (the Writ being maintainable notwithstanding these ex­ceptions)Part. 2 it is to be considered whether there be any error in the Reco­very, or not.

And I conceive clearly that the appearance of the Wife within age by Attorney, is Error; for by the Rule of the Common Law, in every Praecipe quod reddat, whereby Land is demanded, if the Tenant appear he ought to appear either in person, or by one lawfully authorized by him, and that is the reason that if Iudgment be given against one up­on an appearance by the Attorney, where the Attorney had no War­rant to appear, that this is Error, untill it be remedied in case where a Verdict is past by the Statute of 32 of H. 8. of Repleader, but if the Iudg­ment be given upon default or demurrer, or upon a Verdict, and no Warranty by him who recovered, this is not Warranted by the Sta­tute, Dyer 93. 20 Eliz. Dyer 363. and the reason is, because that the Land or thing in demand is lost or gained by one who had no Warran­ty, and then the Rule of Law is, that an Infant shall not appeare by Attorney, and 1 H. 5. 6. adjudged that an Infant cannot be Attorney for another, and so therefore it is there said, that he cannot appear by an Attorney, 22 H. 6. 31. b. There by Newton, if an Infant sue by an Attorney it is Error: And the Law in this case stands with great rea­son, for the Warrant of Attorney is made by the Infant, which although it be sufficient when it is of full age, yet it shall be dangerous to permit Infants to lose their Land by their Attorney, while they have not discre­tion enough to choose such who shall be faithfull to them, and therefore the Law hath made better provision for them (to wit) that they shall ap­pear by their Gardian admitted and allowed by the Court, so that in re­gard of the imbecility of the Infant, the Court makes choyce of a suffi­cient & trusty person to plead and defend their cause, Nat. Br. 27 H. 1. an Infant shall sue by his next friend, but if he be Defendant in any Acti­on, [Page 74] he shall make defence by his Guardian, and not by his next of kin, and the Court does assigne a Guardian for an Infant who is Defendant, and that is commonly one of the Officers of the Court: and in 22 H. 6. 31. where Hungerford and his Wife brought an Action of Trespasse for taking of their Villain being in their Service: The Defendant plead­ed that he was free, &c. and as to the losing of the Service that he was not retained, and found for the Plaintiff, and severall damages, viz. for the taking of nine and twenty pounds, and for the losing of the Service twenty shillings. And it was argued neither Iudgment should be en­tred, because the Retainer was not found; And after Markham moved that the Plaintiffs being within age did appear by their Attorney, and did declare, that all the proces continued by the Attorney, whereas it ought to have been by their Guardian, so that all was Error. And Newton said, that if it were so, there was good reason to have a Writ of Error, and after the Plaintiffs released the twenty shillings, and had Iudgment of the other.

So that an Attorney being alwaies made by the party, ought to be therefore made by one of ability to give such Authority, which ability cannot be in an Infant, for all Authorities made by an Infant [...]re ut­terly void.

And that the appearance of an Infant by Attorney in any Action, is Error, does appear by the said Book if the 22 H. 6. 31. 9 Eliz. Dyer 262. b.

Object. But it may be objected that the Husband in this case is of full age, and therefore he may make an Attorney for himself and his Wife.

Answer. But I answer that the Law is not so, for the Rule of Law is, that the Husband cannot give away or lose the Inheritants of his Wife, but it must be given or lost by her her self and by her own act, and therefore if the Inheritance in this case being to the Wife, she is the principle, and only to be taken notice of, and she ought to appear in such manner as the Law hath appointed in regard of her nonage, 14 Ed. 3. Age 88. In a Cessavit against the Husband and Wife, the Husband did appear by an Attorney, and the Wife by her Guardian, and upon suggestion that she was of full age, the Guardian was hidden to bring her into Court, to see whether she were of age or not.

29 Assise 67. In an Assise against Husband and Wife, the Husband did answer as Tenant, and the Wife would not, but the Husband said that his Wife was within age, and that she was taken away, but did not say by whom, and he did appear for himself and his Wife as her Guar­dian, and pleaded in Bar: and one of the Counsell said, that the Wife had made default which is the default of the Husband, and because that he answered as Guardian without Warranty by Record in this Court to do the same, Iudgment, &c. And there Tho [...] said, that he ought to have a Warranty in such case; wherefore the Assise was awarded.

35 H. 8. 56. In a Writ of Right by the Husband and Wife (the wife being within age) and she appeared by her next of Kin, and was admit­ted by the Court.

New Book of Entries 256. In a writ of Error to reverse a Fine by Maurice Pierce, and Joane his wife, and John Pierce and Elizab. his wife, the three first appeared in person, and Elizabeth being within age, by one Laurence Gibson her Guardian, and admitted by the Court.

And so in this Case, forasmuch as the Land is the Inheritance of the wife which is demanded, which she will lose by this Recovery, she ought to appear by her Guardian, notwithstanding the full age of the hus­band [Page 75] who is joyned only for form sake with his wife.

30, & 31 Eli. Morseby against Charnock, The husband and wife levied a Fine, and after this was reversed by Error, because that the wife was within age, the husband shall not have the Land, for all the Estate passeth from the wife, and the husband joyned only for conformity, Coke 2. Rep. Cromwels and Beckwiths Case.

But it may be objected also, Object. that this Error concerning the nonage of the wife is so appropriated to her person in privity, that no stranger can take any advantage thereof.

I conceive not so, Answer. for the constituting of an Attorney is utterly void as to the wife, and therefore every stranger shall take advantage there, as is not like the Case where an Infant makes a Feoffment which is but voidable, and therefore the Lord by escheat nor any stranger shall not avoid it.

22 H. 6. 31. The Plaintiffs within age did sue by an Attorney, and there it was ruled that the Defendants might have a Writ of Error, and placit. 37. Eliz. Rot. 253. Bartholomew brought a Writ of Error a­gainst Dighton, for that Dighton recovered against him in an Action of false Imprisonment, in which he being within age did sue by an Attor­ney, and adjudged that Iudgment should be reversed.

And this Case is not to be resembled to the Case of a Fine levied by an Infant which cannot be reversed by any but by the Infant himself, and the same Law is of a Recognizance by an Infant, and the reason of these Cases is, because it is the Act of the Court, to admit him to levy a Fine, or to acknowledge a Recognizance, and therefore this ought to be refor­med by the Court, and that must be by inspection of the Infant, and therefore it ought to be done during nonage.

But the nonage in this Case ought to be tryed per pais, as it was ad­judged in the said cases of Bartholomew and Dighton, and the case of Hobbs, in which case the Infant was brought to the Bar to be inspect­ed, but adjudged by the Court that it should not be so, because the mat­ter was tryable per pais: and 10. Rep Mary Portingtons case, A com­mon Recovery against an Infant, although he appears by his Guardian shall not bind him, for an Infant hath not such a disposing power of his Land, as the Husbands & wife have, but is utterly disabled by the Law to transfer or convey his Inheritance or Freehold to others during his mi­nority: And of late daies, a common Recovery does appear to be a com­mon conveyance and assurance of Land.

The third part of the Case is, If the two matters pleaded in Bar of Part. 3 the Writ of Error, or any of them, be sufficient, or not? I conceive not.

And first, as to the Fine, with Proclamations levied before the Re­covery had, which is the Plea of Mary Taylor, one of the Ter-tenants, I conceive that it is utterly insufficient, as well for the manner as the matter of the Plea; for she hath disabled her self to plead this Plea, for she sets forth that the twentieth of May, 31 Eliz. Thomas Leigh and Ka­therine his wife, did let to the said Mary a Cottage and three acres of Land (parcell of the Tenements expressed in the Fine and Recovery) for life, but doth not shew in what Town the said Cottage and three acres do lye, wherefore the Plea is altogether uncertaine and insufficient, for the Tenements in the Recovery do lye in two Towns, viz. In Alkington and Prestwick, and it doth not appear by this Plea, in which of these the Cottage and three acres do lye.

5 Ed. 4. 116. b. In a Formedon in Discender of a house and forty acres [Page 76] of Land, and six of Wood in three Towns, and the Issue being to be try­ed, the Tenant said, that the Demandant had entred into the house and thirty acres of Land, and three of wood: And by the Court the Plea was naught, because it did not appear in which Town the Entry was.

And in Moore and Hoskins case in the Exchequer, 8 Jacob. In an E­jectment of Land in Overkiddington and Netherkiddington, the Defen­dant pleaded not guilty, and when the Issue came to be tryed by Nisi prius, in the County of Oxon, the Defendant pleaded an Entry of the Plaintiff in three acres of the Land, contained in the Declaration since the last Declaration; whereupon the Plaintiff demurred and adjudged that the Plea was insufficient, and thereupon the Plaintiff had Iudg­ment to recover.

Secondly for the matter, this Fine being precedent to the Recovery whereby the cause of this Action is given, cannot extinguish it: for it is a Rule in Law, that one cannot give or grant that which one hath not, 22 H. 7. Kelway 84. If the eldest Son in the life-time of his Father in­feoffs another, it is void as to bind the Land: and Littleton, Releases 106. These words in a Release (Quae quo vis modo in futuro habere po­tero, are void in Law, for no Right doth passe but only the Right which the Releasor had at the time of the Release, as if the Son release to the Disseisor of his Father all the right which he hath or may have, and the Father dye, the Son may enter because that he had no right in the life of his Father, but only a descent to him after the Release by the death of his Father, 13 Ed. 1. 10 Ed. 2. and 4 H. 7. cap. 24. It is enacted that Fines with Proclamations shall conclude as well Privies as Stran­gers, saving to the strangers such right, claim, and interest as they had at the time ingrossed, so as they pursue their claim by entry or action within five years next after the Proclamations and saving such Action, Right, Title, Claim, and Interest, as first, Shall grow, remain, de­scend, or come after the Fine and proclamations, by force of any Gift in Tail, or by any other course and matter had and made before the said Fine levied, so as they pursue within five years, &c. By which it ap­pears that nothing is saved to the strangers but rights, actions, and in­terests, arising by force of any cause or matter before the Fine, and therefore nothing is barred by the Statute but former rights, for what ever right is barred as to the Privies, is saved to the strangers, so as they pursue their claim within, &c.

Sir Richard Shuttleworths Case between Barton and Lever, 37 Eliz. Tenant in Tail levied an erronious Fine with Proclamations, and then as Vouchee did suffer an erronious Recovery and died, the Issue brought a writ of Error to reverse the Fine, the Defendant pleaded the recovery afterwards, and the Plaintiff to maintain the writ did alledge a default in the Recovery, whereby he conceived the same to be void, but resolved that it was but voidable by a writ of Error, and therefore so long as it was in force the Issue was barred to reverse the Fine: And therefore it was agreed there, that the Issue ought first to reverse the Recovery by writ of Error, and then he may reverse the Fine.

And so in our Case if the Plaintiffs should be barred in the writ of Error by the Fine, they shall be without remedy, although that the Fine be erroneous, as I conceive it to be, for if they bring a writ of Error to reverse the Fine first, the Recovery although it be erroneous will be a clear Bar to them as it is adjudged in the said Case of Burton and Lever.

7 H. 4. 40. a. One brought a writ of Error to reverse an Outlawry, the [Page 77] Attorney said he was outlawed at the Suit of another. Hulls said there, that he could not be received, for when one is to adnull an Outlawry, he shall not be disabled by another Outlawry, although he be twenty [...]imes outlawed, for then it will follow that there shall be delay infinite, 26 Ed. 3. 66. Tenant in ancient Demesne levies a Fine at the Common Law, and after does levy another, and the Queen being seignioresse of the Mannor, did bring a Writ of deceit to reverse one of them, she shal not be barred by the other, especially by the first to reverse the second.

And as to the Warranty,2. Matter of the Bar. I conceive that it is no Bar for many rea­sons;

1. Because Warranties do bind only Rights and Actions which are in esse at the time of the warranty made, and not Rights and Actions which do accrue after the Warranty created, but this Writ of Error is given to the Plaintiffs in respect of the erroneous Recovery, which w [...]s suffered after the creation of the warranty, and therefore the warranty is no Bar to the Plaintiffs to have this writ of Error, 30 H. 8. Dyer 42. B. All the Iustices did agree, that when a man does bind him and his Heirs to warranty, they are not bound to warrant new Titles of any Actions accrued since the warranty, but only such Actions as are in esse at the time of the warranty made, 12 Assise 41. The Tenant in a Prae­cipe quod reddat made a Feoffment hanging the writ, and after the De­mandant had recovered by erroneous Iudgment, notwithstanding that the Feoffment had excluded the Tenant from his Right to the Land, yet this shall not exclude him from his writ of Error which is accrued to him since the Iudgment given after the Feoffment, Vide, 18, & 19 E­liz. Dyer 353.

But it may be objected that this warranty shall bind the Right of the Plaintiffs to the Land, for although the Recovery be reversed, Object. yet the Plaintiffs shall be put to their Formedon to recover this Land, in which they shall be b [...]rred by this warranty, and so it shall be in vaine for them to reverse the recovery, for by the warranty they shall be barred to have the Land.

I answer, That notwithstanding the Collaterall warranty, Answer. yet a Right doth remain in the Plaintiffs, which is bound by the warranty, which Right is taken away from the Plaintiffs by this Recovery, by which the Law would have given to them a Remedy (which is by writ of Error) to be restored to their Right, for a collaterall warranty doth not extinguish the right of him who is bound by the warranty, but only does bind the Right for the time that the warranty remains undefeated, and this is proved by many Authorities, 34 Ed. 3. Droit. 29. If the Te­nant in a writ of Right hath collaterall warranty of the Ancestor of the Demandant, he ought to plead it, and not to conclude upon the Right, for if he conclude upon the Right, it shall be found against him, because the warranty doth not give or extinguish the Right, but only binds it.

43 Assise 44. A collaterall warranty may be defeated by a Deed of Defeasance made after the creation of the warranty, by which it appears that the Right is not extinguished, for if so, it could not be revived by the Defeasance, and with this agrees 43 Ed. 3. 20. Earle of Staffords Case.

19 H. 6 59. B. Fortescue. A collaterall warranty does not give Right, for if Land be given to one and the Heirs Males of his body, and he hath two Sons, and doth alien, and the collaterall Ancestor to the Son doth release with warranty to the Alinee, and dies, and the Donee dies, now is the eldest Son barred, but if he die without Issue Male, leaving Issue a Daughter, the younger Son shall not be barred by the warranty.

24 H. 8. B. Formedon 18. If Tenant in Tail hath two Sons by seve­rall venters, and dies, and the Ancestor collaterall of the elder Son doth release with warranty, and dies without Issue, and the elder Son dies without Issue, the younger Son shall recover by a Formedon, be­cause he is not Heir to the warranty: And Littleton 160. B. Tenant in Taile hath three Sons and discontinues, the second Son Releases to the Discontinuee with warranty, the Tenant in Taile, and the second Son dies, now is the eldest Son barred because the warranty is collate­rall to him, but if he die without Issue, the younger may have a For­medon and shall not be barred by the warranty, because that the war­ranty as to him is lineall, and to this purpose is the 8. of Rich. 2. War­ranties 101. By which Book it does appear that the Estate-tail is not extinct by the warranty, for if it could be so it can never be revived a­gain.

II This Warranty is executed and determined, for it was made to the Conusees against whom the Writ of Entry whereupon this Recovery was had, was brought, and they did vouch to Warranty Thomas Lea and Katherine his wife who made this warranty, and thereupon they have recovered in value, wherefore this Warranty is utterly deter­mined.

23 Edw. 3. Recover. in value 12. If one upon a warranty vouch and recover in value, and then is impleaded of the Land recovered in va­lue, he shall not vouch againe, because the warranty w [...]s once exe­cuted.

III The warranty is determined by the reverting of the Estate to whom it was annexed, for when Katherine died, Thomas Lea was to warrant the Land to the Conusees, and after his death he had the Entire Fee-simple of the Land: 22 of Edward the third, 1. In Dower by Nicho­las Powes and his wife, the Tenant vouched A. who was ready in Court, & demanded what he had to bind him to warranty, who said, that the said A. & B. his wife had rendred to him the said Tenements by Fine, and obliged them and the Heirs of the wife to warranty, and said that the wife was dead, and had a Son and Heir who was liable to the war­ranty before him; Iudgment of the Voucher, and the Court held the Vouchment good.

Whereby it appears, that after the death of Katherine, Thomas was bound to this warranty, and by his death he had a Fee-simple, whereby the warranty is destroyed. Littleton 169. If Tenant in Taile enfeoffs his Vncle who enfeoffs A. with warranty, A. re-enfeoffs the Vncle in Fee, who enfeoffs a stranger in Fee, and dies without Issue, the Tenant in Taile dies, the Issue shall not be barred by the warranty of the Vncle, because he does re-take to him as great an Estate of his first Feoffee to whom the warranty was made, as the said Feoffee had from him, and the cause why the warranty is defeated in this Case is, be­cause if the Warranty be in force, then the Vncle shall warrant it to himself, which cannot be.

And in one Case the Ter-tenants do claime the Estate which Tho­mas Lea had, and therefore they cannot have a greater advantage by the warranty then he had. Nat. B. 135. If one enfeoffs another with war­ranty, and the Feoffee enfeoffs another, and re-takes the Estate in Fee, the warranty is determined, and the 22 H. 6 22. b. accords with this, because he is in of another Estate.

And depending the Writ of Error (Viz.) Trinit. and Michaelm. 14 Jacob. One of the Plaintiffs in the Writ of Error did dye, [Page 79] which was pleaded by the Defendants Michaelm. 14 Jacob. whereup­on the Writ of Error was abated.

Hillar. 13 Jacob. Robinson against Matthew Francis Administrator of Alban Francis.Rot. 542.

IN an Action of Debt on a Bond of 100 l. made the first of August, 10 Jacob.

The Defendant pleaded, that the Intestate 20 November, Plea. the 11 Jac. was bound to Elizabeth Francis in 100 l. which was unpayd at the death of the Intestate, and that Elizabeth marryed John Pennial, John and Elizabeth brought a plea of Debt against the Defendant be­fore the Major of London for the said 100 l. and recovered by default, and had Execution of 55 l. 8 s. 5 d. and so acknowledged satisfaction, &c. and did further plead, that the Intestate the 12 Janua. 7 Jacob. did ac­knowledg in Chancery, that he owed to the Lord Chancellor and to the Master of the Rolls 500 l. which Recovery and Recogni [...]nce did amount to 600 l. 8 s. 6 d.

And that the Defendant for the said Execution, and for payment of divers Debts of the Intestate before this Action, plene administravit omnia bona Intestatoris praeterquam bona ad valentiam 100 l. which were lyable for the residue of the said Recovery, and for 100 l. parcel of the said 500 l. and that he hath not, nor had, at the day of the Writ, purchased any other goods, &c. saving to the value of the said 55 l. 8 s. 5 d. and the said 100 l. and did aver, that the Debt recovered before the Major, &c. was a true and a just Debt, and that the said Reco­very as to 45 l. and 1 d. residue of the said 100 l. 8 s. 6 d. and the said Recovery did remain in force.

The Plaintiff as to the Recovery said, That the said Obligation,Replication. upon which the said Recovery was had, was made for security of the payment of 55 l. and that the said John Pennial and Elizabeth did ac­cept the said 55 l. 8 s. 5 d. in full satisfaction of the said Iudgment, and were content therewith, and offered therefore to make a Release, or to acknowledg satisfaction: but the Defendant, to defraud the Plain­tiff of his just Debt, did defer to have satisfaction acknowledged, or to have a Release of the residue of the Iudgment, and suffered the Iudgment to remain in force by fraud and covin to the intent afore­said, &c.

The Defendant, as to the residue of the Debt,Rejoynder. and the acceptance of the said 55 l 8 s. 5 d. in satisfaction of the Iudgment, and to the offer of Release and acknowledgment of satisfaction, did demur in Law. And as to the Recognizance he said, that a Condition was an­nexed to it, scil. That if the Intestate, his Executors, or Assigns, should pay 100 l. with the increase thereof, to William Francis an Infant, when he shall come to the age of 21 years, and in the mean time shall imploy it to the benefit of the Infant, according to the Will of Willi­am Francis, that then the Recognizance shall be voyd: and did aver, that William Francis was alive, and within age, and that the said 100 l. was not yet payd.

And the Plaintiff to this did joyn in Demurrer.

And to the other Plea did demur in Law, and the Defendant did joyn.

And I conceive, that as to the first Demur, the Plaintiff ought to [Page 80] have Iudgment; for now it is acknowledged by the Defendant, that he hath 100 l. in his hands, besides the 55 l. 8 s. 5 d. delivered in Execution, and he hath not shewed any sufficient cause for retaining it: for when those, who recovered 100 l. upon the Bond, did accept 55 l. 8 s. 5 d. in full satisfaction of the Iudgment, and did offer to re­lease and acknowledg satisfaction, this Iudgment in truth is dischar­ged, and cannot charge the Executor: and therefore he cannot return (riens en ses maines) to satisfie, because he is not bound to pay it. Cook. 8 Rep. Turners Case: who brought an Action of Debt upon a Bond of 100 l. against Laurence and others, Administrators of Booker. The Defendants pleaded in Bar divers former Recoveries against them in Debt had, that they had not Assets, praeterquam bona & ca­talla quae non attingunt ad valorem, of the said Debts recovered.

The Plaintiff replyed, that the Defendants since the Recoveries did pay part of the Debts in full satisfaction, wherewith they held themselves content, and offered to acknowledg satisfaction, but the De­fendants did refuse to agree to that, to the defrauding of the Plaintiff. And adjudged that the Plaintiff should recover: for an Executor ought to execute his office truly.

Object. But it may be objected, That there is no place mentioned where the payment or acceptance was?

Answer. I answer, that it is not material, for it is not issuable, but onely evidence to prove the fraud, which is the substance of the Plea, and that is proved by the said Case of Turner. And 42 Ed. 3. 14. Conspi­racy shall be brought where it was done, and not where the Indictment was. And 44 Ed. 3. 31. Attachment upon a Prohibition lies where the summons is, although the Plea be held in another County. 1 H. 7. 15. B. Payment with Acquittance, pleaded in an Action of Debt upon a Bond, is not double, because that acquittance onely is issuable, and the payment is but evidence.

Then the Recognizance is no cause of the retaining the 100 l. as in Cook. R. 5. Harrisons Case: Green brought an Action of Debt up­on a Bond of 40 l. against H. Administrator of Thomas Sydney, the Defendant pleaded that the Intestate was bound in a Statute, besides which he had no goods, &c. The Plaintiff replyed, that there was an Indenture of Defeasance for performance of Covenants, which hither­to were performed; whereupon the Defendant demurred, and it was adjudged against him; for a Debt upon a Bond shall be payd before a Statute to perform Covenants, when none of them then were, nor perhaps ever shall be broken, but are future and contingent things; and therefore such possibilities, which peradventure shall never happen, shall not bar present and due Debts upon a Bond.

And although the Condition of the Recognizance be to pay mony, yet is it to be payd to a stranger, and therefore it is not any Debt, but the Debt is onely by the Recognizance.

Also it is not to be payd but upon a contingency (to wit) if the Infant comes to full age, but if he dye before, it shall never be payd. 36 H. 8. Dyer 59. One devised 20 l. to his Daughter to be payd at her marriage, or 21 years of age, and she dyed before marriage, yet it shall be payd. 7 Ed. 4. 3. and 18. 36 H. 6. 9. Cook. 9 Rep. fol. 108. In an Action of Debt against an Administratrix who pleaded Statutes, and further that she had not sufficient, &c. The Plaintiff replyed, that for one of the Statutes a lesser sum was accepted in satis­faction; and as to the other, that it was for performance of Cove­nants, [Page 81] and that none was broken: and the Defendant demurred, and adjudged for the Plaintiff; and that the general averment of payment and acceptance, and that the Statute was for performance of Cove­nants, was good, because the Plaintiff was a stranger thereto.

And this case was argued again by me for the Plaintiff, and by Crook for the Defendant, Saturday the 24 of May, Pasch. 15 Jacob. at which day Mountague, Doderidge, and Haughton did agree, that for the first matter Iudgment ought to be given for the Plaintiff; but as to the last Mountague held for the Defendant, but the other two on the contrary. And Doderidge and Haughton agreed that the Plea of the Defendant was naught, because he said, that a Condition was annexed to the Recognizance, and did not say, that it was upon condition; and Mountague replyed not. Vide Com. Browning and Beestons Case, 21 Ed. 4. 49. 28 H. 6. 3.

Hillar. 12 Jacob. Robinson against Greves.Rot. 744.

IN an Action of Trespass, for that the Defendant the 6 of May, 12 Jac. the House and several Closes of the Plaintiff did break and en­ter, &c. ad damnum, &c.

The Defendant pleaded Not guilty.

The Iury found, that the said Tenements were Copyhold, parcel of the Mannor of Ecclesfield, grantable (time out of minde) by the Lord or his Steward by Copy, in Fee, in Tayl, or for life or years, ac­cording to the Will of the Lord, and according to the Custom of the Mannor: And that before the Trespass Thomas Shercliff was seised in fee at the will of the Lord, according to the custom, &c.

And that the first of January, 14 Elizab. by the hands of Nicolas Shercliff and Thomas Jepson, two of the Customary Tenants, Gilbert Earl of Shrewsbury, then and yet being Lord of the said Mannor, out of Court, and according to the Custom of the said Mannor, did surren­der to the use of Nicolas Stanniland and his Heirs: which Surrender at the next Court, 11 Janua. 40 Elizab. by the hands of the said N. S. and Tho. J. was delivered into the said Court, and there by the homage of the said Court was presented; and by William West then Steward, was accepted, and entered in the Rolls of the said Court; and that a Copy of the Surrender, under the hand of the said Steward, was delivered to the said Nicolas Stanniland, which Copy was found verbatim: viz. Ad hanc curiam compertum est per homagium quod Tho. S. sursum red­didit ad usum N. St. & haeredibus suis: but they said, that the said N. St. was no otherwise admitted.

By force of which the said Nicolas entered, and the 6 Decemb. 1 Jac. out of Court, by the hands of Thomas Jepson and Richard Shercliff, did surrender according to the custom of the Mannor, to the use of the said N. St. for life, the remainder to William Stanniland and his Heirs: which Surrender, at the Court of the Mannor held the 17 May, 14 Jac. was delivered into Court by the hands of the said Thomas Jepson and Robert Shercliff, and was presented by the homage at the said Court, and was there accepted, and entered in the Roll by the Sheriff, and that a Copy of the said Surrender, under the hand of the Steward, was delivered to the said N. St. which Copy was found verbatim in the said words with the former; and found that there was no other ad­mittance.

The sixth of November, 2 Jacob. Nicolas St. dyed.

Thomas Shercliff entered at the Court 6 Maii, 12 Jacob. did surren­der to the use of the Plaintiff for ten years, and payd his Fine, and was admitted, &c. whereby the Plaintiff did enter; upon whom the Defendant by the commandment of William Stanniland did enter, and made the Trespass, &c. And so prayed the Opinion of the Court.

And I conceive that the Plaintiff ought to have Iudgment.

And in this case, are two matters considerable: First, if this Pre­sentment of the Lord, and the entry into the Roll, and the delivery of a Copy entred by the Steward, be any admittance or not.

And I conceive that it is no admittance: For an admittance is a ceremony requisite to make a Copyhold Estate, and is so necessary, that before admittance, he to whose use the Surrender is made, hath no Estate: as in Bracton 2. cap. 8. Si ipse ad alium transferre voluerit prius illud restituet domino, vel servienti, si dominus praesens non fuerit, & de manibus illorum fiat translatio ad alium, &c. And before admit­tance, this is no perfect assurance, but onely begins then, as in Peryams Case: Cook. 5 R. If the Tenant makes a Feoffment, and is not present within the year at the Court, and there enters it, it shall be voyd: There the Feoffment is but opus inchoatum, as it is there resolved, and is not perfected until it be presented and entered. And I conceive that this admittance of a Copyholder is like to a Freehold at Law, in which case nothing passeth by the Deed till the Livery be made.

And now it is to be considered, whether there be any thing here to make the admittance? for first, there is no express admittance, but if there be any admittance, it ought to be implied: and I agree that if there be any act to imply the consent of the Lord to this Surrender, it shall be a good admittance: but here is no such thing. For the mat­ter to make an implyed admittance ought to be taken and collected out of these four things contained in the Verdict.

1 The presentment of the Surrender made out of Court, by the homage.

2 The presentment of the homage: and that is done.

3 The acceptance of the Surrender by the Steward, and the entry thereof in the Roll.

4 The delivery of a Copy by the Steward to Cestuy que use.

And I conceive that none of these do imply an admittance.

For first, no act by the homage can make an admittance; for they cannot make an actual admittance, and therefore they cannot by any implyed act make an admittance. Then here is not any act made by the Lord himself amounting to an admittance, for there is nothing [...]ound to be done by him.

And as to the acts made by the Steward they are three: First, the acceptance of the presentment which is no admittance, for he being Iudg of the Court is bound by the Law to receive the Presentments offered to him by the homage. Secondly, The Entry in the Roll, and this is also his duty to do for the evidence of the Lord, and of him to whose use the Surrender is made. Thirdly, The delivery of the Copy of the Presentment, which also ought to be done, because that serves for Cestuy que use for his evidence when he was admitted.

But none of these things do imply the consent or will of the Lord, that Cestuy que use shall be admitted, or that he shall have the Land according to the Surrender; for when the Law implies any act out of [Page 83] the act of the party, the act of the party ought to be such, as does neces­sarily such a thing to be implyed by the Law, and that to be so necessa­ry, as the act of the party cannot be, unless the Act to be implyed be also done. 14 H. 7. If Tenant for life does surrender to the Grantee of the Reversion, this is first an Attornment implyed by the Law, for otherwise the surrender can take no effect. And 5 Rep. fol. 15. If a Parson makes a Lease for years to the Patron who grants over the Lease, this does imply a confirmation of the Lease, for otherwise the Grant of the Patron shall be avoyded. And so in our Case, if the second Surrender had been made to the Lord in Court, I do agree that it shall be an implyed admittance of Cestuy que use upon the first Surrender. But when the act of the party may be without any such implication, and the matter to be implyed rests indifferent, then it is quite contrary. 2 R. 2. Attornment 8. Feme sole grants a Rever­sion, to which a Rent is incident, and names the Grantee, to whom the Tenant pays the Rent, this is no Attornment; for it is indifferent whether he pays this to the Grantee as Grantee, or in right of his Wife. Vide 13 Elizab. Dyer 302.

Then in our Case, The acception of the Surrender, the Entry in the Roll, and the delivery of the Copy of the presentment are things indifferent, and are not such acts as necessarily imply any admittance, for all of them may be done, although no admittance be made.

46 Ed. 3. Forfeiture. A Bishop made a Gift of Land in Tayl, ren­dering Rent, the Dean and Chapter did release part of the Rent, this is a confirmation of the Gift, for it is necessarily implyed, for otherwise the residue of the Rent cannot be. But if they had onely entered the Gift of the Bishop in their Register, or in an Instrument under their seal, I conceive this shall be no confirmation; for it may be that they made this, that the successor should be the better able to avoyd it.

And so in the case of the Patron aforesaid, if the Patron had en­tered the Lease in one of his Evidences, or in an Instrument under his seal, this is not any confirmation; for it may be that he did it for his better remembrance of the Estate granted, and to the intent to in­struct the successor to avoyd it.

Secondly, I conceive until the admittance of him to whose use the Surrender is made, the Estate of the Copyholder does remain in Tho­mas Shercliff who made the Surrender: for it cannot be in Staniland, to whom the Surrender was made, because the Surrender does make no Estate until admittance: for the Heir of the Copyhold hath the Estate of the Copyhold in him before any admittance, because that he hath an Estate descended to him from his Ancestor; for if it were other­wise, the Estate shall be in abeyance, which shall be inconvenient; but Cestuy que use hath nothing until admittance. And in the 5 Rep. Periams Case: A Feoffment by Franktenant of the Mannor of Port­chester shall be voyd, if it be not presented at the next Court, where it is resolved that the custom is good, and that the Feoffment is not fall and perfect until the presentment in Court according to the custom, but it is as opus inchoatum & non perfectum.

And so in our case, the Surrender is no perfect assurance to pass the Estate, until there be an admittance thereupon: and therefore it fol­lows, that until admittance, the Estate doth remain in him who made the Surrender.

And in the Case of Frosell and Walsh, adjudged in this Court the [Page 84] last Term, where Thomas Herring a Copyholder in Fee of the Manor of Mansel-Lacy, the 28 Elizab. according to the custom did surrender into the hands of two Tenants out of the Court, to the use of George Whittington and others under whom the Defendant claimed, and it was found by the custom that such Surrender ought to be presented at the next Court, or that otherwise it should be voyd. Thomas Herring dyed, Henry Herring being his Son and Heir, and before any Court holden, or any admittance of George Whittington, Henry Whittington did enter, and made the Lease to the Plaintiff, who brought an Eject­ment, and it was adjudged for him: for it was resolved, that until ad­mittance the Estate remained in him who made the Surrender, which by his death descended to Henry his Heir.

Hillar. 13 Jacob. Webb against Herring.

IN an Ejectment upon a Lease made by Henry Person the 26 Octob. the 13 of King James, of a house in the Parish of St. Mary Ab­church in the Ward of Candlewick-street: Habendum from Michaelm. last past for three years, and layd the Ejectment to be the 28 Octob. in the same year.

The Defendant pleaded Not guilty.

And the Iury found, that William Say was seised in Fee of the said Messuage, and of two other Messuages in the Parish of St. Johns in Walbrook, London, and held them in Socage. And that the 8 Octob. 1562. the said William having issue Francis his Son, and Margaret, Agnes, and Alice, by his Will in writing did devise the said Messuage in these words: I bequeath to Francis my Son all my three Houses, after the death of my Wife Barbara, and his Mother: and if Margaret, Agnes, and Alice, and either of them, do out-live their Mother and their Brother Francis and his Heirs, then they to enjoy the three Hou­ses for their lives: and the three Houses then I give freely to my Sisters Sons, Iohn Wittinbury and Roger Wittinbury, and they to pay unto the Wardens of the Batchelors Company of the Merchant-Taylors 6 l. 10 s. yearly to be given to the poor and needy Brethren of the same Company for ever: and if the said Iohn and Roger and their Successors do deny the said payment of 6 l. 10 s. it shall be lawful that the said Wardens to enter into the three Houses, and to discharge them for ever.

William Say the Devisor dyes.

Barbara enters.

Francis, Agnes, and Alice dye without issue.

Barbara dyes.

Margaret enters.

John Wittinbury dyes without issue.

Roger Wittinbury dyes without issue, and the Lessor is Cosin and Heir to him, viz. Son of Margaret Pierson, Sister of the said Roger.

The 18 of August, 13 Jacob. Margaret dyed seised, having issue John Savage her Son and Heir, who entered: which Son, the 17 Fe­bruary, 13 Jacob. did infeoff Edward Jackson in Fee, who the second of September, 13 Jacob did infeoff Richard Slydhurst in Fee, who the third of September, 13 Jacob. did make the Lease to the Defen­dant for four years, who entered; upon whom the Lessor did enter, [Page 85] and made the Lease to the Plaintiff, upon whom the Defendant did enter.

And prayed the Opinion of the Court, &c.

And I conceive Iudgment ought to be given for the Defendant.

But first, as to the Question that hath been made, scil. What Estate John and Roger Wittingbury shall take (if they shall take any Estate at all) by this Will? I shall not argue: for I agree, that if they have any Estate, it is a Fee-simple, in respect of the continual and perpetual charge imposed upon them for the payment of 6 l. 10 s. to the Wardens, &c. for that is to have a perpetual continuance in respect of the persons to whom it is to be payd, scil. the Poor. And also the per­sons to pay are the two Wittingburies and their successors, who in the Exposition of the Will shall be taken for their Heirs and Assigns: and also in respect of the limitation of the payment, scil. [for ever] which in a Will makes a Fee-simple: and [...]s much as the charge is to continue for ever, it follows also that the Estate ought to continue, for without the Estate the charge cannot be.

But I conceive that John and Roger shall take nothing by this will, or at least that they shall take but a future Estate to begin after the death of Francis without Heir, and then their time will never come, for John Savage under whom the Defendant doth derive his Estate, is Heire to Francis, and therefore the Plaintiff nor his Lessor, being Heire to Ro­bert Wittingb. the Survivor cannot have this house.

And to prove this, here is an Estate limited by expresse words to Francis and his Heirs, and no apparent intent by the Devisor, that the word (Heirs) shall be restrained to the Heirs of his body, unlesse by reason of the limitation of the Remainders afterwards, which cannot be (as hath been said) if Francis had a Fee-simple. But as to this I say, that the same reason may be given, when a man deviseth Land to A. and his Heires, and if he die without Heire, that it shall remain to B. and his Heires, in which case if the Devise to A. shall be restrained to an Estate in Taile, the Remainder to be is good, but no such intent can be colle­cted against expresse words, and therefore the Remainder is utterly void, as in 19 H. 8. 8. B. where the Rule is given, that when the intent of the Testator does not agree with the Law, his intent shall be void, and this is a certain Rule. And West. 2. cap. 1. where it is provided, Quod vo­luntas donatoris observetur, yet it ought alwaies to agree with the Rules of Law, as is proved by the 8. Assise 33. where was a Gift in Taile to two, and if one dies, that the Survivor shall have all to him and the heirs of his body, now doth the Law say that they have severall Inheritances, but the will of the Donor was, that the Survivor should have all, which being repugnant to the Rule of Law, was adjudged to be a void Clause, 35 H. 8. 6. Estates 75. Estates given to the husband and wife for their lives, the Remainder to the heires of their bodies is an Estate-taile exe­cuted, notwithstanding the expresse will of the Donor, because an E­state for life and of Inheritance cannot be distinct in one and the same person without a mean Estate in another. So that in Wills, if the in­tent be against Law, they are void: And so is it if the intent be ambi­guous and not manifestly to be collected out of the words of the Will. And in our Case no manifest intent does appear to make the Estate of Francis an Estate in Tail, C [...]ke 6. Rep. Wildes Case; One devised land to A. for life, the Remainder to B. in Taile, the Remainder to R. and his wife, and after their deaths to their Children, who then had two Children, the Devisor dies, and A. dies, and B. dies without Issue, and [Page 86] and it was adjudged that the Children of R. and his wife should have on­ly an Estate for life, because that by Iudgment of Law they have but an Estate for life, and if R. and his wife should have an Estate in Taile, it ought to be by the intent of the Devisor, which intent ought to be mani­fest and certain, and so expressed in the Will, and in this case no such intent does appear, for perhaps his intent was to accord with the Rule of Law, 15, & 16 Eliz. 9. a. A. having three Houses & having three Sons and a Daughter, did devise to B. his first Son a House, paying ten pounds to his Sister, and he to enter after the death of the wife of the Devisor, and did devise to his second Son another Houses, paying to the Daughter ten pounds, and he to enter at the age of one and twenty years, and did devise the third House to the third Son paying ten pounds to his Sister, and he to enter at the age of one and twenty years, and if any of his Sons died before the age of one and twenty years, his part should be divided amongst the S [...]vivors, and so every one should be heire to the other, and all of them came of age, and paid the money, and it was hol­den that each of them had an Estate in Fee and not in Taile: and Dyer 357. Chick did devise the Fee-simple of a Messuage to A. his wife, and after her death to W. his Son, which W. was his Heir apparent. A. did enter and married again, and dyed, having Issue by him, and adjudg­ed that A. had an Estate for life, the Reversion to W. for life, the Re­mainder to A. in Fee: and 14 Eliz. a. One seised of Lands in Fee de­vised them to B. and the heirs of his body, and if he died, that it should remain to A. in fee, yet B. shall have an Estate in Taile by the first words, and shall not be restrained by the last words. And Trinit. 37 E­liz. Rot. 382. Bacon against Hill, and having three Tenements did de­vise them to his wife for life, and then one of them to each of his three Sons, and if any did die, his part should remain to the Survivors, and if any had Issue and died before he entred, his Issue should have it, and R. one of the Sons had Issue, the wife died, and R. died, and ad­judged that his Issue should have nothing.

Object. But it may be objected that Francis cannot die without heire so long and his Sisters are living, and therefore it shall be construed that the Devisor did intend only the heires of his body.

Answer. But it does not appear that the Daughters were of the whole blood to Francis, so that they may be heires to him; for although where a Bro­ther or Sister is spoken of in pleading, it shall be intended of the whole blood, because a Brother of the half blood is but half a Brother, yet here when the Father onely does call them his Sons and Daughters, and is so found by the Iury that they were his Sons and Daughters, yet this is no proof that they were of the whole blood, for they are daugh­ters to the Father by what ever wife they were had.

And so I conceive upon the whole matter, that the wife does take an Estate for life by the devise, and that the Son shall have a Fee-simple, but yet subject to this future devise, sc. if he die without heire that the Wittingb. shall have it, and so all the Will shall be good, except the limitation to the Daughters for their lives, and it cannot be intended that the Devisor did intend to prefer the Wittingb. being his collaterall Cosins before the Issue of his Daughters which Issues are of his owne body.

Judgment.And before that I argued againe, Hillar. 14 Jacob. Iudgment was given for the Plaintiff, for they all agreed, that Francis had but an E­state-tail by these words of the Will, viz. If M. A. and A. do out live their Mother and their brother Francis and his heires, and Francis can­not [Page 87] die without heire, so long as his Sisters are living, and therefore the word (Heirs) shall not be intended Heires generall, but heires of his body, wherefore Iudgment was entred ut supra, &c.

Mich. 14 Jac. Mason against Manning.

IN an Ejectment upon a Lease made by John Crooker and Christopher Crooker, the two and twentieth of May, 14 Jac. of two houses, forty acres of Land, forty of Meadow, and forty of Pasture in S. Needs, Ha­bendum from the Annunciation last past, for three years: The Eject­ment was the twenty third of May in the same yeare.

The Defendant as to the force and armes, &c. pleaded not guilty, and as to the residue he said, that Queen Elizabeth was seised in Fee of the Mannor of S. Needs, whereof the said Tenements are, and time out of mind were parcell, and that the Queen the ninth of March, in the one and thirtieth year of her Raign, by her Letters Patents, shewed here under the Exchequer Seal, did devise the said Tenements to Robert Croker for life, the Remainder to Edward Bett for life, the Remainder to Edward Adams for life, the Queen dies, whereby the Reversion does descend to the King, Robert Croker dies, and the thirtieth of March, 14 Jacob. Edward Bet doth devise the said Tenements to the Defendant from the Annunciation last past, for three years, whereby he entred and was possessed, untill the said John and Christopher Croker did oust him, and did disseise the said Edward Bet, whereby they were seised in fee by disseisin, and made the Lease to the Plaintiff, upon which the Defendant claiming his term, did enter, and did out him, and the De­fendant was and yet is possessed of the said Tenements, the Reversion to Edward Bet for life, the remainder to Edward Adams for life, the Reversion to the King: unde non intendit quod curia (domino Rege inconsulto) ulterius procedere vellet aut debeat; and prayed ayd of the King, and did aver the life of Edward Bet.

And I conceive that ayd is not grantable in this case.

1. Because that it is but an Action of Trespass: 4 H. 6. 10. Te­nant for life of a Lease from the King shall not have ayd of the King, for that no Freehold is to be recovered, and he is able to plead to all matters in a Trespass.

2. The Defendant shall not have ayd of the King, because he is not his immediate Tenant, but he may pray in ayd of Edward Bet his Lessor, and he of the King. 1 H. 4. 18. In a Scire facias to execute a Fine, the Tenant said, that the Land was given to him for life, the remainder to N. in Tail, the remainder to W. in fee, who was attaint of Treason, whereby his remainder came to the King, and he prayed ayd, &c. And the Court said, that he ought to pray ayd of N. and he of the King: and after he said that W. was also attaint of Treason, whereby he had ayd of the King. 33 H. 6. 29. In a Trespass, where the Defendant justified as Baily of a Hundred to distrain for amerce­ments, and prayed ayd of the King, and by Prisot, he could not have it, for the Sheriff is the immediate Officer to the King: and to this agrees 11 H. 6. 39. where such justification was for taking of Toll: and 9 H. 6. 26. In a Replevin, the Defendant made Conusance as Baily of I. who held of the King for life, and prayed ayd of the King, and adjudged he should not have it, for there is no privity betwixt the King and him, because he is not immediate: and 28 H. 6. 13. A man [Page 88] shall not have ayd of the King and Queen, or of the King and his Te­nant for life, but first of the Queen or Tenant for life, and they of the King; and a man shall not have ayd of the King, but where he is Baily or Servant immediately to the King.

Judgment.And for these Reasons the Defendant was outed of his ayd by Iudg­ment of the Court.

Michaelm. 14 Jacob. Lightfoot against Lerret and others.

IN an Action of Trespass, for that the Defendants, 20 Novemb. 13 Jacob. two Heifers of the Plaintiff of price 6 l. at Bentley and Sprodburgh, did take, chase, and drive away, &c.

Richard Lerret did plead not guilty, and the other Defendants, viz. William Lerret and Edward Taylor, as to one of the Steers did plead Not guilty, and for the other, that the King was seised in Fee of the Mannors of Doncaster, Arkse, and Sprodburgh, whereof the Bridges called Wilcomb-Bridg and St. Mary-Bridg, are, and time out of mind, &c. were within the said Mannors.

That the 14 of January, 13 Jacob. the King did grant to Edmund Duf­field and John Babington, and their Heirs, Tolnetum omnium & singu­lorum pecudum, that did pass and repass upon the Water and River of Dun in the County aforesaid, at and by the said Bridges, to have and receive for the same, as there the Kings of this Realm were used for such Toll or passage, rendering 10 s. Rent to the King. And they said, that before and at the time of the making of the Grant, the Toll was used to be taken at a Bridg called Burrow-Bridg, in the County aforesaid, for every twenty Cattel that past by that Bridg 6 d.

That the 28 Junii, 13 Jacob. Duffield and Babington by Deed en­rolled, and for a sum of mony, did bargain and sell the said Toll to John Richardson and his Heirs.

That the third of June in the said year, John Richardson did bargain and sell the Toll to the said William Lerret and his Heirs.

And the Plaintiff before the Trespass was possest as well of the said Steer as of thirty nine others, and that the said Plaintiff at the time aforesaid did drive the said Cattel by the said Willow-Bridg and St. Mary-Bridg, whereupon the said William Lerret did demand of the Plaintiff 12 d. for Toll of the said fourty Cattel, which the Plaintiff did refuse; whereupon the said William in his own right, and the other as his servant, did take the said Steer by distress for the said 12 d. And prayed ayd of the King, &c.

The Plaintiff replyed, that the said Willow-Bridg and St. Mary-Bridg were common Bridges for passage for all the Kings Subjects of the City of York, and other Cities and Towns in the North parts to Doncaster, and from thence to London, and to the Cities and Towns in the South parts, at their pleasure with Carts, &c. and that neither at the making of the Letters Patents, nor at any time before, any Toll was taken or received for any passages over the Bridges aforesaid.

Whereupon the Defendants demurred in Law, and the Plaintiffs joyned.

And I conceive that Iudgment ought to be given for the Plaintiff.

1 The Grant is of Toll for Cattel passing and repassing upon the River of Dun by the said Bridges, and it is not alledged that the Cattel did pass over the said River.

It is alledged that the two hedges are within the Mannor, but it is 2 not aledged that they are parcel of the Mannor; so that it may be up­on the Land of a Freeholder, and if so, the King cannot grant the Toll.

No certainty is granted, but onely to take and receive, &c. and it 3 is not alledged that at any Bridges any Toll was taken but onely at Burrowbridg.

No Town is alledged in which Burrow-Bridg is. 4

And Pasch. 15 Jacob. It was agreed by all the Court, that the Grant was utterly voyd for the [...]ncertainty, viz. to take such toll as was taken there and otherwhere within the Realm of England, &c. And also that the Plea of the Defendant was utterly insufficient for the other causes aforesaid: wherefore it was adjudged that the Defen­dants should be outed of their ayd, and that they should plead in chief, &c.

Pasch. 14 Jacob. Parker against Sanders.

IN an Information upon the Statute of 39 Eliz. cap. the 2^d. as well for the King as for himself, for that one hundred acres of Land in Nether-Winchenden in the County of Bucks, 17 Novemb. 1 Eliz. and before the 24 of Octob. 29 Eliz. were converted from tillage to sheep-pasture, and grasing of Cattel, which 100 acres were arable Land, such as were used in tillage for twelve years together next before the said conversion, according to the nature of the soyl and course of til­lage in that part of the Country: and that the said 100 acres were not restored to tillage, nor layd for tillage before the first of May, 1599. nor ever since: And that the Defendant the 26 of March, the 13 of King James, was occupier of the said hundred acres, and did so continue until the 27 Martii, 14 Jacob. and that the Defendant the 27 of March did not restore nor lay to tillage the said hundred acres, but for the said time converted them into pasture, contrary to the form of the Sta­tute, &c.

The Defendant pleaded Not guilty.

And the Iury for the fifty acres of Land did finde the conversion after the 17 of November, 1 Elizab. and before the 24 of October, the 39 of Elizabeth, and that they were used in tillage for twelve years toge­ther before the said conversion, and that they were not restored to til­lage before the first of May, 1599. nor ever since: and that the De­fendant the 26 Martii, 13 Jacob. was occupier of the said fifty acres from that time unto the 27 Martii, 14 Jacob. continuing his occupation thereof, and was not occupier thereof before the 26 Martii, 13 of King James: And that the Defendant, nor any other, before the 27 Martii, 14 Jacob. restored or layd the said fifty acres to tillage, but continued them in Pasture during the said time: And prayed the advice of the Court.

And I conceive that Iudgment ought to be given for the King and the Informer for 50 l. (viz.) twenty shillings for every one of the said fifty acres.

And to this purpose the Statute hath two clauses, the first is a com­mandment, and this doth consist of two parts: 1. That all Land converted from tillage to pasture since the 7 of Novemb. and before the 24 of Octob. 39 Eliz. being before used in tillage for twelve years to­gether, shall be restored to tillage before 1599. so as the whole accord­ing [Page 90] to the nature of that soyl, and course of husbandry uses within that part of the Country, be within three years at the least turned to tillage by the occupiers and possessors therof. 2. And so shall be continued for ever.

The second clause doth contain the forfeiture, (viz.) That if any shall offend against the premisses, every such person shall forfeit for every acre not restored, or not continued as is aforesaid, 20 s. for every year that he so offends.

And IudgmentJudgment. was given for the King and the Informer, for other­wise the Statute shall be utterly defrauded: for if no information be for the conversion within one year after, or if the Convertor pay the penalty of 20 s. for the converting, he may let it out to another: And by pre­tence of the Defendants Councel, he shall not be subject to penalty for the continuance: But the Court agreed, that he who made the conver­sion should be punished, and so should every other occupyer of the Land who does not keep the Land in tillage.

Rot. 386.Michaelm. 12 Jacob. Perryn against Audrey Barry.

IN a Writ of Error to reverse a Iudgment given in the Kings Bench for the said Audrey against the said Perryn, in Debt upon a Bond of 100 l. made the 28 of April, 5 Jacob. In which Action the said Perryn demanded Oyer of the said Bond, and of the Condition, which was, That if the Defendant Iohn Perryn, his Executors, and Administrators, should perform the Award of Thomas Clyff, Roger Glover, Robert Goodwin, and Thomas Piborn, Arbitrators as well for the said Perryn as the said Audrey Barry, elected to Arbitrate of, for, and upon all and all manner of Actions, cause and causes of Actions, Suits, Trespasses, Debts, Duties, &c. and all other demands whatsoever, which between the said parties at any time, until the date of the Obligation, have been had, moved, or now depending: so that the same Award, &c. of the said Arbitrators, or any three of them, of the premisses, be made and given up in writing, indented under their hands and seals, on or before the last of May next, that then the Obligation shall be voyd. And the Defen­dant did plead, that the said Arbitrators did not make any Award.

The Plaintiff did reply, that the said Roger Glover, Robert Good­win, and Thomas Piborn, three of the said Arbitrators, the 30 of May. fifth of King James, did make their Award by writing indented, That the Defendant should pay to the Plaintiff 57 l. (viz.) upon or before the 16 of June next 10 l. and the 29 of September next 17 l. and the 25 of Novemb. next 20 l. and the 25 of March next 10 l. And whereas the Defendant and Stephen Perryn were bound to the Plaintiff in 12 l. up­on condition to pay 6 l. at certain days, that the said Obligation should be to the Plaintiff in force as then it was, and that she should have such benefit thereby as she might have had before, and that the Plaintiff should acquit and save indemnified the Defendant from all Debts, Du­ties, and mony, for which the Defendant with the Plaintiff was indebt­ed or bound to Dingley, Numan, Clark, Cater, or any of them. And that all Actions depending between the parties in any of the Kings Courts, and all other Actions and causes of Action for any matter between them, except the matters contained in the Ar­bitrement, and the Obligation to perform the Award, should cease, &c. And that if any controversie or doubt should happen between the par­ties, for or about any word, sentence, or thing in the Arbitrement, or of or touching the Award, or any thing contained therein, that the parties [Page 91] and their Executors shall perform such explanation and construction thereof, as the said three Arbitrators should make in writing under their hands concerning the same. And that the Plaintiff shall pay to George Write for drawing and ingrossing the said Arbitrement 6 s. 8 d. which Agreement the said three Arbitrators shall deliver to the par­ties the same day.

And although the Plaintiff did perform all, yet the Defendant did not pay the 10 l. the 16 of June next.

And hereupon the Defendant demurred in Law, and the Plaintiff joyned, and Iudgment given for the Plaintiff: whereupon the De­fendant brought this Writ of Error.

And assigned the first Error, because the submission was to four, and Error. 1 the Arbitrement was by three onely.

But all the Iustices and Barons did hold, that the Agreement was well made notwithstanding; for it shall be taken now to be a submission to four, or any three of them: and so was it agreed in the Kings Bench, where this point hath been argued at the Bar oftentimes.

The second was, that the Arbitrators did not make any Award for Error. 2 the Bond of 12 l. in which the said Plaintiff and St. Perryn were bound to the now Defendant, upon condition to pay 6 l. at certain days: and the submission is conditional, sc. That the Award be made of all things, &c. and therefore they ought to have determined these matters. For it may be that this was the principal cause why the Plaintiff did submit himself to the Award, sc. to be discharged of this Bond, which perhaps was forfeited for not performing the condition, with the penalty where­of he shall be now charged. And although the Bond was made by the Plaintiff and another, yet was it a cause of action depending between the Plaintiff and Defendant, for she may sue him. 2 R. 3. 18. b. If three men and another do refer themselves to an Arbitrement of all demands between them, the Arbitrators may make an Award of all matters which the three had against the other joyntly, and of each matter which every one of the three hath against the fourth, and may award that eve­ry one of the three shall pay mony to the fourth. Vide Comment. 389. Chapmans Case.

21 H. 7. 296. In debt by a woman as Executrix, the Defendant said, that I. S. her husband and the Defendant did refer themselves to Arbitra­ment, who made an agreement, and the husband dyed, and the Court held, that the debt of the woman as Executrix was extinct by this Ar­bitrement.

The clause, that the now Defendant should acquit the Plaintiff of Error. 3 all Debts wherein he was bound with the Defendant to Dingley, &c. is insufficient, because there is no Christian name.

The breach is assigned, for that the Defendant did not pay the 10 l. Error. 4 upon the sixth day of June, whereas the Award was, that it should be payd upon or before the 16 day of June. But all did agree, that this was well assigned, because that when it is alledged, that it was not payd upon the 16 day, it was not payd before the day.

The Arbitrators have awarded, that the parties shall stand to their Error. 5 Award for construction of the Arbitrement, and of all things in the A­ward, and of all matters concerning them for the future, which is not in their power, for all the Award ought to be made before the last of May.

They award 6 s. 8 d. to be payd by Audrey to George Write, for in­grossing Error. 6 of the Award, which is not within the submission: 1. Because Write is a stranger: 2. Because it is a thing agreed on after the sub­mission.

Judgment.And Hill. 14 Jac. The Iudgment was affirmed, and they agreed the last agreement to be void, but that was not materiall, for the Award was void only for that, and good for the residue.

Rot. 100.Hillar. 13 Jacob. Mande against French.

IN an Action of Debt for forty pounds upon the Statute of 2 Edw. 6. For that the Plaintiff is and was for two years past Rector of Bifeild, and the Defendant the first of October, 12 Jacob. was Occupier of eighteen acres of Land, and thirty of Pasture in Bifeild aforesaid, and did continue the occupation thereof for a yeare after, and the first of Septemb. the 13 Jacob. did mow and reap the Hay growing upon the Meadow, and the Grain (viz.) Barley, Wheat, Pease, Beans, and Oates growing upon the Land, and the same day did take and carry them away without setting out the Tithes, or agreeing with the Plain­tiff for them, and did aver the value of the Tithes to be thirteen pounds, six shillings, eight pence.

The Defendant pleaded Non debet.

The Iury found that King Henry the eighth, was seised in Fee of the Advowson of Bifeild, and the five and twentieth of April; 34 H. 8. the King granted the same to Sir Edward Knightly, and Ursula his wife, and to the Heirs Males of the body of Sir Edmund, the remainder to Valentine Knightley his brother, and the heires males of his body, the Remainder to the right heires of Sir Richard Knightley then dead, Fa­ther of the said Sir Edmund.

Sir Edmund died seised without Issue,

Ursula did surrender to Valentine, and the fifth of September 4, & 5 Phil. & Mar. Valentine did give and grant the Advowson to Sir John Spencer, and others, and their heires, to the use of himself for the life of Ursula, and after the decease of which of them should first die, to the use of Richard Knightley his Son, and Mary his wife, and the heires males of the body of Richard, the Remainder to the right heires of Sir Richard Father of Valentine.

That the twentieth of Febr. 6 Eliz. William Briggs Rector of Bifeild, by Indenture did let the Rectory to the said Richard Knightley, haben­dum from the next Annunciation for sixty one yeares, rendring 28. pounds Rent. And that the twenty fourth of Febr. 6 Eliz. Valentine Knightley did confirm the Lease: and the last day of February in the same year, the Bishop of Peterborow being ordinary did confirm it.

That the thirtieth of July, in the same year, Richard Knightley did grant the Lease to Edward Knightley his second Son, and afterwards recovered the profits, to the use of Edward being within age.

That the eighth of May, 8 Eliz. Valentine died seised of the Advow­son, having Issue the said Richard his eldest Son.

William Briggs did recover the Rent during his life and dies, where­by Richard Knightley does present William Reynolds who was admitted, instituted, and inducted, Reynolds did resigne, whereupon Richard Knightley did present Richard Burdsale, who was admitted, &c. and Burdsale did resigne, wherefore Richard Knightley did present Simon Rogers who was admitted, &c.

And they found that all these persons did accept the Rent.

And that the first of Septemb. 21 Eliz. Richard Knightley did take the profits to the use of Edward, and did devise the Rectory to Rogers the [Page 93] Parson for forty years, if he should be so long Parson there.

That the thirteenth of Novemb. 27 Eliz. Sir Richard Knightley did grant the Advowson to Valentine his Son in Fee.

That the 34 of Eliz. A Fine was levied between Bartholomew Tate and Henry Yelverton Esquires, Plaintiffs, and Valentine Knightley Esquire, Deforceator of the said Advowson, Sur conusans de droit come ceo, with Warranty to the use of the Conusees and their heirs.

Rogers did resigne, whereupon the said Valentine did present Jonas Challoner, who afterwards died, and the Ordinary did present the Plaintiff by Laps, who did accept the Rent for divers years.

And they found the carrying away of the Tithes, and to the value of ten pounds.

And prayed the opinion of the Court upon the whole matter, whe­ther the Defendant owed the thirty pound to the Plaintiff, or not.

Vpon which Verdict, the case is this.

Valentine Knightley seised of an Advowson in Taile to him and the Heirs males of his body, the Remainder to the right Heirs of Sir Ri­chard Knightley his Father then dead, the 4, & 5 of Philip and Mary, did give and grant the Advowson in Fee to the use of himself for the life of Ursula Knightley, the Remainder to Richard his Son and Mary his wife, and the heirs males of the body of Richard, the Remainder to the right heirs of the said Sir Richard the Father. The twentieth of Febru­ary, 6 Eliz. William Briggs the Incumbent does make a Lease of the Rectory by Indenture, to Richard the Son for sixty one years, from the Annunciation next, &c. rendring twenty eight pounds Rent.

And the twenty fourth of Febr. 6 Eliz. Valentine Knightley does con­firm the Lease; and the last of February in the same year, the Ordinary confirms it.

The thirtieth of July in the same year, Richard the Lessee grants the Term to Edward Knightley his second Son within age, and takes the profits to his use. And the 8. of Eliz. Valentine dies, Richard being his eldest Son: William Briggs dies, whereby Sir Richard does pre­sent William Reynolds who was admitted, &c. And he did resigne, whereby Sir Richard did present Burdsale, &c. who did resigne, &c. whereby he presented Rogers, and all these persons did receive the Rent. And the 21 Eliz. Sir Richard did make a Lease of the Rectory to Rogers the Parson for forty yeares, if he shall be there Parson so long. 27 Eliz. Sir Richard grants the Advowson to Valentine his Son in fee: and 34 Eliz. A Fine was levied of the Advowson between Bartholomew Tate, and Henry Yelverton Plaintiffs, and Valentine Knightley De­forceator, to the use of the Conusees and their heirs; Rogers did re­signe, whereby the said Valentine did present John Challoner, &c. who died, and the Ordinary collated the Plaintiff by Laps, who for many years accepted the Rent, and the Defendant did take and carry the Tithes to the value of ten pounds.

And whether this Lease be good to bind the Plaintiff, or not, is the question, and I conceive it is not.

And for the arguing of this Case I will consider these three things. I

The Validity of the Lease without any confirmation.

If here be any confirmation of this Lease, and if it continues in force II against the now Plaintiff.

Admitting here be not any sufficient confirmation of it self, if the III Fine levied by Valentine Knightley hath given any force and strength to it.

And as to the first I conceive without any doubt that this Lease without any confirmation is determined by the death of the person who made it, and is so determined as no acceptance of Rent by the Succes­sor can make it good, and therefore the difference is between a Lease for life, and a Lease for years made by a person rendring Rent, for the Lease for life is only voidable, and not void by the death of the Lessor, so that if the Successor does accept the Rent and Fealty, he shall be bound for his time, as in 11 Ed. 3. and 8 H. 5. 10. and 2 H. 4. 2. The Successor shall maintain an Action of Waste against such Lessee for life, but a Lease for years is meerly determined by the death of the Les­sor, 38 H. 8. 6. Leases 18. and 24 H. 8. 6. There a diversity is taken and agreed between a Lease for life made by a Parson in which case the ac­ceptance of the Rent or fealty by the Successor shall make it good, for his time, and a Lease for years which is meerly determined by the death of the Lessor, so that no acceptance of the Rent or fealty can make it good, and therefore the acceptance of the Rent in our case, which is found to be made by the Lessor himself, and all the succeeding persons, and also by the Rule of these Books, is nothing to the purpose, and therefore I shall speak no more of that, Vide 2 Ed. 6. 33. Dyer 239.

2 And as to the second Point, sc. If here be any sufficient confirma­tion of the Lease against the Plaintiff, or not; The Defendant hath endeavoured to have many things to be found by the Iury to make a confirmation. 1. The expresse confirmation by Valentine Knightley the Father of Sir Richard. 2. The Grant of the Lease by Sir Richard to Edward Knightley his Son. 3. The taking of the Profits by Sir Ri­chard, to the use of his Son being within age. 4. The Lease made by Sir Richard, the 21. of Eliz. to Rogers the Incumbent: for I cannot conceive for what cause any of these things are found, unlesse it be to opperate as to a confirmation.

And as to the first, third, and fourth, I do conceive, that they nor none of them can make this Lease good, for by the first it is found that Valentine at the making of his confirmation had but an Estate for life of Ursula Knightley, the which is meerly determined by the death of Va­lentine, and although Ursula be not found dead, yet is not that materi­all, for this Advowson being a thing that lies only in Grant and not in Law, cannot go to any Occupant. And therefore the death of Valen­tine hath determined this as fully, as if Ursula had been dead. And therefore the diversity is when a rent or other thing which lies in grant is granted to one and his heirs for the life of another, and the Grantee dies; I agree that the heir by speciall limitation shall have this: as Littleton 169. 19 Ed. 3. Account 56. but no Estranger can have it, and the reason is, because that the sole means that the Law doth give to one to gain an Estate of Occupancy is by Entry, but no Entry can be in an Advowson, Rent. or any other thing that lies in Grant, and therefore here can be no Occupancy, 26. Assise 38. and 12 H. 7. 16. If he in Re­version doth enter after the Occupant, and brings an Action against him, the Occupant ought to plead the Lease for Cestuy que use, whose Estate he hath, but for a Rent or an Estate that lies in Grant, none can plead a que Estate, but ought to entitle himself by the Grant, and that cannot any one do in this Case. And as to the third matter of con­firmation, which is the taking of the Profits by Sir Richard Knight­ley, this cannot be any confirmation of the Lease, for although the as­sent of the Patron be sufficient, yet it ought to be by Deed, otherwise it cannot be good. And as to the fourth, which is the Lease made by [Page 95] Sir Richard by Rogers the Incumbent, that is not any confirmation. 1. Because this Lease does not concern the Lease made by Briggs, but is an absolute and originall Lease made by Sir Richard himself as Ow­ner of the Rectory. 2. Because that at the making of this, Sir Richard had nothing in the Rectory, for he had granted all his term before to Ed­ward Knightley, and therefore his Lease to Rogers is void, unlesse it be by way of Estoppell.

Then as to the second matter of confirmation, sc. whether the Grant of the Term by Sir Richard to Edward Knightley, I will not agree to it at all, but according to the resolution in Hodges case, that this is a confirmation as good as Sir Richard could make it. But this confir­mation being in the nature of a charge upon the Advowson, ought to be directed by the Estate which Sir Richard then had, and being derived out of that Estate, it cannot endure longer then the Estate; as in Littleton 122. a. If a Parson doth charge the Glebe, and the Patron and Ordi­nary confirm it, the Grant shall be in force, but in such case the Pa­tron ought to have an Estate in fee, for if he hath an Estate but for life or in Taile, the Grant is good but during his life, and the life of the Parson who grants it, 31 Ed. 3. Grants 61. A Parson grants an An­nuity to a Pryor which is confirmed by the Tenant in Dower of the Advowson. this is not good after the death of the Tenant in Dower, and Dyer 252. A Chantry Priest made a Lease for ninety nine years, which was confirmed by the Patron who was Tenant in Taile, and af­ter the Chantry is dissolved by the 1. of Ed. 6. it is a question if the King shall avoid the Lease, but it was agreed clearly, that if the Chan­try had continued, that the Lease should be void against the Incum­bent, who comes in upon the presentation of the Tenant in Taile.

And this Rule being clear (as I conceive it is) that the confirma­tion shall not bind according to the Estate of the Patron, the Estate which Sir Richard had in the Advowson at the time of his assignment, which does imply a confirmation is to be considered.

And as to that, the Case is, That Valentine being Tenant in Tail of the Advowson, by Deed did give and grant the Advowson to one in fee to the use of himself, during the life of Ursula, the Remainder to the use of Sir Richard, being his Issue in Taile, and thereupon it fol­lows that Sir Richard had an Advowson in Remainder in Fee-taile, depending on an Estate for anothers life, but this fee was determina­ble upon the death of Valentine the Tenant in Taile.

But objection was made in the Argument against one, Object. that this Ad­vowson being found to be granted by Valentine, shall be intended to passe by Livery (for it was said that an Advowson might passe by Li­very) and then here is a discontinuance.

But I deny first that an Advowson can passe by Livery, Answer. but admit­ting it would, yet secondly, Shall it not be taken by this Verdict to passe so. And as to the first, I must confesse that there are some sud­dain opinions in your Book, that an Advowson may passe by Livery, as 43 Ed. 3. 5. 11 H. 6. 4. and 20 Ed. 4. & 5. yet are there many Au­thorities against it, and so is the true reason of the Law. 18 Ed. 3. 16. Shard, It was never heard that one could enter into an Advowson, there­fore no Livery can be made: and 11 H. 4. 3. 6. An Advowson in grosse cannot passe without Deed, 9 Ed. 4. 47. a. One cannot grant Proxi­mam advocationem without Deed, Dyer 323. Advowson of the Vica­ridge of D. doth passe by the Grant of all hereditaments in D. although it lies not in Livery, nor is visible, and Coke 9. Rep. 96. An Advowson [Page 96] is not manuall, but is Haereditas incorporata; and so Littleton 3. of things which do not lye in manuall occupation or possession, as an Ad­vowson, he shall not plead as seised in his Demesne as of fee, but as of fee: and so Littleton 139. If Tenant in Taile grants the Advowson it is no discontinuance.

And the reason is apparent, because that nothing can passe by Li­very, but that whereof possession may be taken by the Feoffor or Donor, and given to him by the Feoffee or Donee. And it is more colourable to say that he in Reversion upon an Estate for life may make Livery, for although a Reversion be not visible or mannuall, yet Terra rever­tens which the Grantee shall have after the Estate determined is ma­nuall, and yet I conceive that none will hold that such a Reversion so long as it continues a Reversion may passe by Livery.

2 If it be admitted that an Advowson may passe by Livery, yet it shall be intended by this Verdict that it doth not passe, because it is found that Valentine did grant it by Deed, and there is no doubt but it may passe by Deed without Livery, and therefore no Livery being found, Live­ry shall not be intended, for it shall not be intended to be a discontinu­ance whereby the Tenant in Taile shall do wrong, when the Advow­son may well passe by Deed which is no wrong. And therefore I con­ceive, that notwithstanding this objection that here is no discontinuance but only a grant of an Advowson, which is determinable by the death of the Tenant in Taile who made it, from whence it follows, that Sir Richard at the time of his grant of the Lease, had only a Remain­der in fee in the Advowson determinable on the death of Valentine his Father, which Estate is only charged by his confirmation, for as Is­sue in Taile he cannot make any confirmation, because he had nothing in him at that time, 10 Ed. 3. 2. Confirmation 22. If the Son confirmes the Estate of the Disseisor in the life of his Father, and the Father dies, the Son shall not be barred by his confirmation without War­ranty.

13 Ed. 1. Confirmation 19. If one doth quit Claime for him and his heirs, all his Right before that his Right doth happen, the quite claim is nothing, and so is Littleton 106. Releases, and the reason of these Cases is upon the Rule of the Common Law, which is, that one can­not grant or charge that which one hath not.

By which it plainly appears that this implyed Confirmation made by Sir Richard, does make the Lease good only for so long time, as he hath Estate in the Advowson, which is determinable by the death of Valen­tine. And to prove that it is so determinable, it is a certain Rule, that all Grants and Charges made by Tenant in taile are determined with his life: and so is Littleton, Discontinuance 139. If Tenant in taile of an Advowson or Common does grant this in fee, it is no Disconti­nuance, for the Grantee hath no Estate but for life of the Tenant in taile who made the Grant, 22 H. 3. Discontinuance 52. If a Rent be granted to husband and wife in fee, and the husband grants this in fee and dies, yet the wife may distrain, and shall not be put to her Action, 36. Assise 8. Tenant in taile of a Reversion grants the same in fee with Warranty, and dies leaving Assets, the Tenant for life dies, and the Issue enters, and his entry congeable, for the Grant is meerly deter­mined by his death, so that the Warranty cannot work, 38 H. 8. b. Discontinuance 35. If the King Tenant in taile grants the Land for lif [...] it is no discontinuance, for a Grant without Livery makes no dis­continuance, but this shall not bind but during the life of the Grantor, [Page 97] 26 H. 7. 4. Fineaux, Tenant in taile of Services is like Tenant for life, and by his Grant nothing doth passe but for his life, and after his death the Issue may distrain, but if he brings a Formedon he shall be barred by the Warranty, for then he admits it to be a Discontinuance. And Hil. 39 Eliz. Rot. 941. In the Common Pleas between Keen and Cox, Thomas Jennings Tenant in taile, the Remainder to John his Brother, made a Lease for three lives, according to the Statute of 32 H. 8. with Warranty, and dies without Issue, John being his heire who entered, and agreed good, for the Estate of the Lessee was deter­mined by the death of the Lessor without Issue, wherefore the War­ranty could be no bar to the Remainder: And although the Issue in case of Grant of a Rent by his Ancestor, may have a Formedon, yet that is no proof that the Grant is not determined, for although it be de­termined, yet may he admit himself out of possession if he will, and is like to the Case where one takes my Rent, yet he gains no possession by this, but that I may distrain notwithstanding, yet if I will I may ad­mit the possession to be out of me, and so maintain an Assise against the Pernor.

And as to the opinion in the case of Fines in the 3. Rep. That if there be Tenant in taile of a Rent, or a thing which lies in Grant, who grants the same by Fine, and dies before the Proclamations made, that the Grant is not determined, but that the Proclamations may be made is grounded upon the reasonable construction of the Statute of the 4 H. 7. of Fines, for otherwise the provision of the Statute that the fine shall be a bar cannot be, for that is the reason there given.

But it hath been objected, Object. that because it was not found by the Iury that Sir Richard Knightley was dead, it shall be intended that he is a­live, and then his confirmation remains in force.

To which I answer, 1. That his being alive cannot be presumed, Answer. because it is not so found, for although a Fee-simple being once alled­ged, shall be intended to continue untill the contrary appears, yet is it not so of an Estate-taile, or such other particular Estate, but he who will take advantage of such Estate ought to aver the continuance thereof, and that is a certain Rule in pleading, as in the 15 Ed. 3. Te­nant in Taile of a Rent grants the Rent over, the Grantee when he makes Title there, ought to aver the life of the Tenant in Taile for by his death the Grant is determined; vide Dyer 73. 19 H. 6. 73. 5 H. 7. 39. 15 Ed. 4. 6.

And although there is a speciall Verdict in our Case, which shall be taken more favourably then a Plea, yet is it all one, for I agree that a Verdict need not be so formall as a Plea, but if it wants substance ei­ther on the one party or the other, this shall prejudice the party as much as if there had been a pleading, for the Court cannot give Iudgment without some matter found, and therefore for as much as in our Case the life of Sir Richard makes for the Defendant, and all the validity of his Lease depends thereon, he ought to prove by evidence that Sir Richard was alive, so that the Iury might have found it, and because it was not so found, the Court will not intend that he is alive, and there­fore he shall be taken to be dead, and so his confirmation is finished.

But admitting it shall be intended that he is alive, yet I conceive that immediatly upon the death of Valentine, his Estate which he had by the limitation of the use is determined and vanisht, and he is remitted to his Estate-taile, and then his confirmation (as I have already proved) which doth charge the Estate which he hath by limitation of the use cannot endure.

Yet I will agree, that if Tenant in Taile makes a Feoffment to the use of himself for life, and after to the use of his Issue being within age, and dies, that his Issue shall not be remitted, as it is resolved in the Comment. 111. Townsends Case, and 207. Standbridge and Morgans Case. But the diversity is when the Estate-taile is discontinued wher­by the Entry of the Issue is taken away, and he is put to his Forme­don, there he shall not be admitted for the limitation of a use to him, for if he will take the Estate according to the use he ought to take it in the same manner as he had the use, but when no discontinuance is made of the Estate-taile it is otherwise, as in Townsends Case Com­ment. 111. Where Amy the wife of-Roger Townsend was Tenant in Taile, and the Husband the 29. of H. 8. made a Feoffment to the use of himself and his wife for life, the Remainder to the use of their eldest Son for life, with divers Remainders over, the husband and wife di­ed, and resolved that neither the wife nor the Son are remitted, and the reason there was, because that the Feoffment being made before the Statute of 32. of H. 8. was a Discontinuance, to the purging of which, the wife was driven to her Cui in vita, and cannot avoid this by Entry, as she might after the Statute of 32 H. 8. and therefore it is there agreed that if a Disseisor make a Feoffment to the use of the Disseisee, and he enters, he is remitted, because his Entry was congeable: And so Dyer 191. 2, & 3 Eliz. Land is given to the husband and wife, and to the Heirs of the body of the husband, the husband after the Statute of 32 H. 8. makes a Feoffment to the use of himself and his wife for life, the Remainder to the first Son for life, the Remainder to the right heirs of the husband, the husband dies, and it was resolved in the Court of Wards, that the wife should be remitted, notwithstanding the Sta­tute of Vses, because that her Entry was congeable: and so 11 H. 7. 12. a. If the son disseiseth the Disseisor of his Father, and the Father dies, now forasmuch as that a right of Entry was in the Father, which by his death doth descend to the Son, he shall be remitted, notwithstan­ding that he came to the possession by his own proper and wrongfull Act, which is as strong against a Remitter, as an Agreement is to a Vse. And so if the Son and another doth disseise the Father, and the Father dies, the Son is remitted, and shall put out his companion.

And then Sir Richard being remitted, the Confirmation (as I have shewed before) being but a charge upon the Advowson, is meerly deter­mined; and so Littleton 148. B. If Tenant in Taile enfeoffs his Issue within age, who at full age doth grant a Rent-charge, or a Common, and the Father dies, the Issue shall hold discharged: and 40 Ed. 3. 448. If Tenant enfeoff a stranger who grants a Rent, and enfeoffs his Son within age, and the Tenant in Taile dies, the Issue shall hold the Land discharged: and the same Law by Catesby, in 12 Ed. 4. 13. b. If Tenant in Taile after Discontinuance does repurchase the Land, and dies, and the reason is, because the Statute that was charged is va­nisht. And although that the opinion of Bromley, 33 H. 8. Dyer 51. b. be that the Issue in such case shall not avoid a Lease for years made by him before his Remitter, yet the case of a Rent is there also agreed that it is determined by the Remitter, and the same Law is in Ioynt-tenancy, if one doth make a Lease for years, so that he doth dispose of the possession, this shall bind the Survivor, but otherwise if he charges the Land with a Rent or other thing, and so is it where a husband hath a term in right of his wife, as in 7 H. 9. 2. 3.

And as to the last part of the Case so: If the Fine levied by Valen­tine [Page 99] the Son and Heir of Sir Richard Knightley doth give any force or strength to the confirmation, or not, and I conceive that it doth not for three causes.

First, the Fine is not with any Proclamations, so that it is no bar to the Intail, and therefore it is no more then a bare Grant of a Tenant in Tail.

Secondly, As this Fine is found, it cannot be intended to be levi­ed by Valentine Knightley the Son of Sir Richard, but by a stranger of that name: for it is first found, that the 27 Eliz. Sir Richard did grant the Advowson to Valentine Knightley then his Son and Heir ap­parent, and that the 36 Eliz. a Fine was levied between B. T. and H. Y. Plaintiffs, and Valentine Knightley Esquire Deforceator, wihout saying (the aforesaid) and therefore I conceive, that Valentine Knight­ley Esquire, who levied the Fine, cannot be intended to be Valentine Knightley Son and Heir of Sir Richard, and yet I agree the Case of 21 H. 7. 30. That when Westminster is put into a Plea, and then a matter is alledged apud Westmonasterium, without (praedict.) it shall be intended the same place, but when another addition is given to the person or place, it is otherwise, and therefore in the second place if it be sayd apud Westmonasterium super Thamesin, it shall not be taken for one place, 5 Ed. 6. Dyer.

New Book of Entries 650. 35, & 36 Eliz, In the Kings Bench, Vpon a Trespasse for breaking his Close, and breaking and spoyling two Gates and three perches of Hedge, the Defendants prescribed to go there in perambulation, upon which there was a demur, &c. and adjudged for the Plaintiff. 1. Because that he ought to alledge this by custome and not by prescription. 2. Because the Bar was, that the Plaintiff had obstructed the way, Cum sepibus & Januis, and did not say praedict. so that it might not be of the same Gates in the Declaration, and that is there said to be a fault incurable. And although we are not in the na­ture of a Plea in our case but of a speciall Verdict, yet as I have shew­ed before, that is all one where it wanteth matter of substance. Thirdly, the Confirmation is utterly defeated and avoided by the Re­mitter to Sir Richard Knightley, and therefore the Fine cannot revive it, 14. Assise 3. Tenant in Taile doth charge the Land and dies, and the Issue does enfeoff a stranger, he shall hold the Land discharged, be­cause the Land was once discharged by his Entry, and so shall the Issue do that re-purchaseth the Land, 19 Ed. 3. Resceit 112. Tenant in tail acknowledgeth a Statute and dies, and the Issue enfeoffs a stranger, against whom the Conusee sues out execution, and adjudged there good, but yet it was denyed in 11 H. 6. 26. b. by Paston; and Comment. 437. Smith and Stappletons case. And Trin. 15 Jac. This Case was argued by Sir Tho. Coventry the Kings Solicitor, for the Plaintiff, & by Sir Hen. Yelverton the Kings Attorney for the Defendant. And Hil. 15. Jac. by Serjeant Chidborn for the Plaintiff, and by Serjeant Harvy for the De­fendant. And Pasch. 16. Jac. without any argument by the Iudges agreed for the Plaintiff; and thereupon IudgmentJudgment. was given that the Plain­tiff should recover.

Mich. 14 Jac. Ashfeild against Wrendford.

IN a Writ of Error to reverse a Judgment given in the Common Pleas for the now Defendant against the Plaintiff, in an Action of Debt upon [Page 100] a Bond of two hundred Marks made the first of October, 9 Jac. In which the now Plaintiff, then Defendant, did plead that Gregory Havard was possessed of five Cowes, thirteen Sheep, and of certain Hay, Wheat, Rye, Pease, Barley, Oates, and Fetches, not Threshed. And some speech being had between the said Gregory and one John Ashfeild, for the buying thereof, whereupon the said Gregory did affirm the same to be twenty Loads of Hay, thirty of Wheat, a hundred of Rye, &c. whereupon be­fore the making of the Bond, viz. the last of September, the 9 Jacob. It was agreed between the said Gregory, and the said John, that the said John should pay for the said goods seventy five pounds, and that a Bond should be made, in which should be contained that the said now Plaintiff, with the said John Sturet, were bound to Cuidam Edward Wrensford in two hundred Marks upon condition for the payment of the said seventy five pounds, which writing was to be delivered to the said Gregory, as a Sche­dule to be kept, upon condition that the said Gregory before the said day of payment should go to the house of the said John in Pixley, to account with him for the said Goods, and if thereupon any of the said Goods should be wanting, if the said Gregory shall be content to make the same up, that then the Writing should be delivered to the said Edmund, other­wise it should remain as a Schedule, whereupon the said Writing men­tioned in the Declaration was made and sealed, and delivered to the said Gregory upon condition aforesaid. And after the measuring of the Hay, there wanted eight Loads, &c. and the said Gregory did not come to the House of the said John, &c. And so pleaded it was not his Deed. And found for the Defendant, &c.

And I conceive that Judgment ought to be reversed.

For Cuidam Edward Wrensford cannot be intended the Plaintiff in the first Action, but a stranger of that name, as in Dyer 5 Ed. 6. Case of I­sham and Wither: And then the aforesaid Edward to whom the Obliga­tion is made and who joyned Issue, and appeared at the tryall, and at the return of the Postea, and for whom Judgment was given ought to be referred to Cuidam Edward Wrensford, whereof mention is last made in the Plea, and not to the Plaintiff in the Action, and so Issue is joyned by a stranger, and Judgment given for him, and not for the Plaintiff.

Judgment confirm'd.But all the Court held that the Issue shall be intended to be joyned by the Plaintiff himself, and upon the Bond whereon the Declaration is made, wherefore Judgment was affirmed, &c.

Hil. 14 Jac. Newsham against Carew Knight; In the Exchequer.

IN an Ejectment, the Case was this. A Bishop makes a Lease of a Re­ctory to I.S. for 21. years, and dies, the Successor before the Statute 1 Eliz makes a Lease of this to I. N. habend. from the 20. Decemb. 1. Eliz. (being the day of the date for 56. years from thence next ensuing, the end of the Lease to I, S. and dies, and the 56. years are expired from the 20. of Decemb. 1 Eliz.

And if this second Lease be ended or not, is the Question?

And I conceive that the Lease shall begin from the 20 of December, and so it is ended before the Lease made to I. S.

For the argument of which case, the true sence and meaning of this ill pen'd Habendum is to be considered, for thereupon all the difficulty of this case doth depend: and as to that I conceive there are but four [Page 101] ways to expound this Habendum: and if it be taken in any of these constructions, this Lease shall begin by computation from the 20 of December, 1 Elizab. and so shall end the 20 of December, 12 Jacob. which is before the Lease made to the Lessor of the Plaintiff.

And the first way is to observe the first part of the Habendum, (scil.) from the 20 day of December then next following, to be onely material and good; and the last part, being repugnant thereto, is voyd.

The second way is to take the first words of the limitation of the be­gining of the Estate to be voyd, and the last words (scil.) next follow­ing the determination and end of the term of I. S. &c. to be good.

The third way is to construe as well the first as the last words of the Commencement to be voyd, by reason of the direct repugnancy in them.

And the fourth and last construction is, to make such construction, as all these words by a reasonable exposition may agree together.

And according to any three of these constructions, (viz.) the first, the third, or the fourth, it is apparent, that the Lease to I. N. under whom the Defendant claims, did end the 20 of December, 12 Jacob. which was before the entry of Anthony Rudd the last Bishop, and the Lease made to the Lessor of the Plaintiff, and then this Lease is good: and therefore my endeavor is to prove, that this Habendum ought to be taken in any of these three ways, viz. the first, third, or fourth, and to disprove that it cannot be taken in the second way.

For the argument whereof, I shall speak to the first and second to­gether: for that that I will speak of the first, will be a manifest dis­proof of the second.

And as to this, I conceive that it is a Rule infallible in the expositi­on of Deeds, that when two clauses are contained in a Deed, the one contradicting the other, the first shall be good, and the last voyd. 2 Ed. 2. Feoffments and Deeds 94. One gave Land to R. with A. his daugh­ter in Frank-marriage, habendum to R. and his Heirs, with warran­ty to him and his Heirs, they dyed, and their Son brought a Mortdan­cestor: and because the first clause was in Frank-marriage, and the other in Fee, the Iustices doubted to which of them they should have regard: and at last adjudged, that when there were several or two clau­ses in a Deed repugnant, or of divers natures, that more regard ought to be taken to the first, then to the last. But otherwise in Wills, for there the last part of a Will shall controul the first; as if one first doth devise Land to A. and after devise this to another, and it is to both in fee, yet the last devise shall stand. 19 Ed. 3. Tayl 1. In a Writ of Ad Terminum qui praeteriit, the Tenant pleaded a Gift in Frank-marriage to his Father and Mother by Deed, which was thus, that is to say, habendum to them for their lives, and resolved, that the Gift in Frank-marriage being first, that it is good, and the Habendum being contrary, is voyd: and there the same rule is given, where two clauses are contained in a Deed, and the one is contrary to the other.

And in Tracy and Throgmortons Case, Comment. 153. It is a ground in Law, that if the Habendum in a Deed be contrary to the Estate given by the premisses, the Habendum shall be voyd: as if a Grant be made to one and to his Heirs, Habendum for life, the Haben­dum is voyd. 13 H. 7. 23. and 24. and Dyer 272. A Termor does grant his term to another, Habendum after the death of the Grantor, adjudged that the Habendum is voyd. And 2 Ed. 4. If one release all his right in B. acre, which he purchased of I. S. and in truth he did not [Page 102] purchase it of I. S. but of another, or else had it by descent, yet is the release good, for the first clause shall stand, and the other shall be voyd. And Dyer 292. b. One having a Close called Callis, lying in Hurst in the County of Wilts, does make a Lease of his Close called Callis in the County of Berks, and adjudged that it shall pass, for the first words shall be, and the other shall be voyd. And Dyer 32 H. 847. 6. a Lease was made for life without impeachment of waste, and if it happen him to make waste, that then it shall be lawful for the Lessor to enter. Shel­ley conceived there, that the condition was voyd, because it was repug­nant to the former Grant; but some conceived, that the Grant shall be intended, that he shall not be punished by action. Whereupon I collect, that if the condition in the last clause cannot agree with the first, the last is voyd: and so Dyer 56. 6. If I release to A. all actions which I. S. hath against him, the Release is good; and the words (viz.) which I. S. hath against him, are voyd: for by words subsequent, a Deed may be qualified and abridged, but not destroyed.

And as to the third manner of exposition (viz.) to construe all the words of the limitation, as well the first as the last, to be voyd. There is a Rule in Law, that when words in a Deed, Plea, or Record, are so repugnant, that the true sence thereof cannot be known to the Court, what is to be judged or construed upon them, that all shall be taken to be voyd, as appears by divers Books: 33 H. 6. 26. In an action on the Case, wherein the Writ was, that whereas the Plaintiff had a way by reason of his tenure, the Defendant had levyed a Wall, whereby his way was stopped; and there Prisot said, that the Writ was not good for the repugnancy: and 9 H. 7. 3. a. One pleaded Null tiel Record & hoc paratus est verificare per idem Recordum; this was adjudged in­sufficient, because the Plea is repugnant, viz. the first part which is not a Record, and the last that there is such a Record: and Dyer 70. 5 Edw. 6.

And so here, if these two limitations in the begining of this Lease are so repugnant one to the other, that they cannot consist together, then both shall be adjudged voyd: and then there being no certain time put for the beginning of the Lease, the Lease shall begin presently; as in 3 Ed. 6. 6. A man made a Lease for years to commence after the end of a Lease made to I. S. and in truth I. S. had no Lease, the Lease shall begin presently.

And as to the fourth manner of exposition, I conceive that these am­biguous words shall be construed [if it may be] that all may be good as to a reasonable exposition: and that is, that the 56 years shall begin from the 20 Decemb. 1 Eliz. but the Lease does not take effect in pos­session until the end of the other Lease; for terminus annorum hath two significations, scil. one the time or number of the years, and the other the Estate or interest of the term; and therefore if one does grant his term, the Estate does pass thereby: and this diversity is ta­ken and explained the 35 H. 8. 6. and in Cooks 1 Rep. Cheddingtons Case. So that I conceive that the first words in the Habendum here ought to be applyed and referred to the time or number of years, accord­ing to the first definition of the term; and the last shall be applyed to the last definition, and shall be taken onely as words explanatory put in for better caution by the Bishop to avoyd contention between the Les­sees, viz. That the last Lessee shall not meddle with the possession un­til the end of the first term: and by this construction, and no other, may all the words agree together: Dyer 9 Eliz. 261. 6. Abbot and [Page 98] Covent did make two Leases of two parcels of Land to two persons, 1531. for 31 years, and after the successor 1535. reciting both the Leases, did make a new Lease to the other in these words: Noveritis nos praedict. Abb. &c. dictis 31 annis finitis & complet concessise to the Lessee the said Land, holden from the day of the making of these pre­sents (termin. praedict. finitis) until the end and term of 31 years from thence next following. And the Iustices of the Common Bench held, that it shall commence to take effect in possession at the end of the for­mer term, and not before: and [from the day of the making of these presents] is but a declaring of the first sentence, which is obscure to some intents; and if it were not so exprest, the Lessee shall have but a Lease for four years, which was not the intent of the parties, as it should seem; but the Court of the Kings Bench was on the contrary: But afterwards the case was resolved upon another point, viz. That the Lease was voyd, because that the words [a die confectionis, &c.] were razed by the Lessee himself. But admitting that in this case the Lease should not begin until the end of the first Lease, yet that is no proof, that in our case the Lease shall not begin presently: for in this case of the 9 of Elizab. the true Grant in the premisses does shew the intent of the parties to make a Lease in Reversion, and that shall controul the words in the Habendum [a die confectionis:] also these words are quali­fied by other words in the Habendum, viz. termino praedict finito. Third­ly, the former Lease is recited as a good Lease without doubt, but in our case the first Lease is not received as a Lease in truth, but is term­ed a pretended Lease: and yet in this case there were diversities of Opinions, if the Lease shall commence presently or not. And Mich. 10 Jacob. Thomas Moor brought an Ejectment against John Musgrave upon a Lease made to him by William Moor the fifth of May, 10 Jac. of a Messuage, &c. in C. in the County of Cumberland, habendum from the Feast of the Anunciation last past for 21 years, whereby he entred and was possest until the Defendant the same day did eject him: To which the Defendant pleaded Not guilty. And the Iury found, that William Moor was seised in Fee, and made a Lease to the Plaintiff, habendum from the Anunciation of the Virgin Mary last past, for the term of 21 years next ensuing the date hereof, &c. And Iudgment was given for the Plaintiff, whereby it appears that the term shall begin from the first limitation.

And after the Case was argued on the Bench by all the Iudges,Judgment. and Denham, Bromley, and Tanfield were of Opinion for the Defendant: wherefore Iudgment was given against the Plaintiff.

Michaelm. 14 Jacob. Standish against Short in the Exchequer.

IN an Ejectment on a Lease made by George Walker Parson of the parish of S. John Evangelist in London, 14 Junii, 14 Jac. of a Messuage called the Swan in the said Parish, habendum from the Anunciation last past for three years, whereupon the Plaintiff was possest, until he was ejected by the Defendant the 15 Junii in the same year: And upon Not guilty pleaded, the Iury found,

That the said Messuage did lie within the City of London, and that it was an ancient City, and that by the Custom every Citizen being a Freeman of London, by his Will in writing may devise all his houses [Page 104] and Lands, and any part thereof in the said City, as well in Mortmain without license, as in any other manner in Fee, in Tayl, for life, or for years, &c. and that the said Custom, and all other Customs of the said City, the 7 of Richard the second were confirmed by Act of Parlia­ment. And they found that William Daringre, Citizen and Freeman of London, the tenth of May, 34 of Ed. the third, was seised in Fee, as well of the said Messuages, as of other Lands in London in Fee; and the tenth of May, 1360. and in the 34 of Ed. 3. made his Will in writing, and thereby did devise the said Messuages by the name of his Tenements in these words following. And first he devised a Quit Rent of 40 s. a year to the Parson of St. John Evangelist, and his suc­cessors, to pray for Souls: and he did devise to the said Parson and his successors, a Chamber with two Cellars thereupon lying on the North­side of his Tenement, to pray for Souls: And then followed this clause: Item, lego & ordino quod unus capellanus celebret in Ecclesia Sancti Johannis praedict. statim post decessum meum, pro anima mea & animabus praedictis, & quod idem capellanus percipiet annuatim de Te­nemento meo 8 Marks pro stipendio; & volo quod idem capellanus ad matutinas missas & omnibus aliis horis Canonicis in Ecclesia praedict. in­tersit per dispositionem Rectoris ejusdem qui pro tempore fuerit, & de residuo si quod clarum fuerit ultra solutionem dict. tenementi. Volo quod Richardus filius Elizabethae uxoris meae scolatizando adjuvetur quousque ad legitimam aetatem pervenit ad ordines Sacerdotales perci­piend. & cum Sacerdos fuerit, volo quod idem Richardus dictum canta­rium occupet pro termino vitae suae si voluit, & si non de residuo prae­dicti tenementi neque de cantario nihil percipiet, sed Rector ante­dictus qui pro tempore fuerit, & 4 magistri sufficient. Parochiam prae­sentent & invenient unum capellanum ad dictum Cantarium occupandum in perpetuum de tenementis meis in dominica Parochia non legatis, salvo quod lego de dictis tenement. meis Rectoribus & Successor. suis illam mansionem quam Johannes Sherman modo tenet reddend. inde annuatim tot. quiet. reddit. de omnibus tenementis meis exeunt. Item, volo quod si dominica Cantuaria pro defectu dicti Rectoris vel Successor. suorum re­tardavit, & ultra 40 dies inoccupat. fuerit, quod dict. camer. solarii & mansiones erunt Gardianis de ponte. Et id quod clarum fuerit, & resi­duum ultra solutionem & reparationem praedict. volo quod ponatur sub custode Rectoris & 4 Parochianorum ad providend. ornamentum & libros dominicae Ecclesiae.

And the Devisor dyed the same day seised of the said Tenements.

And they further found, that the Messuages wherein, &c. is parcel of one of the Tenements in the Will, out of which the Testator did ordain, that the said Chaplain should have eight Marks for his stipend, and that Henry Tyting was Parson of the said Church at the time of the death of the Devisor, and that the Church was voyd by his death, and that the Lessor was presented, admitted, instituted and inducted: and that he entered into the said Messuages upon the Defendant, and did expel him, and made the Lease to the Plaintiff, who entered and was possest until the Defendant ejected him. And whether the Defendant was guilty or not, they prayed the Opinion of the Court.

And I conceive that the Plaintiff ought to have Iudgment.

And the Question is, Whether the Parson by this Devise shall have the houses, the said eight Marks are limited to be payd to the Chap­lain or not? And I conceive that the Parson shall have it.

In the Comment. 4136. It is taken for a Rule, that in expounding [Page 105] of Wills, the Law shall interpret the words of the Devisor, and shall direct their operation according to the intent of the Devisor: so that to the matter, form, and order limited in last Wills, the Law does sub­mit to them, and wills that they should be observed. And although that in Conveyances or Deeds executed by men in their life-times, the Law doth require apt words to make Estates, yet in Wills the intent of the Devisor is sufficient, either to limit the Estate, or to describe the person that shall have it.

And therefore if Land be given to one in perpetuum, if it be by Grant or Feoffment, yet there passeth but an Estate for life; but if it be given by Will, it is an Estate in Fee: and 4 Ed. 6. Estates 78. If one deviseth his Land to another, paying 10 l. to his Executors or any other person, the Devisee hath an Estate in Fee: so if one deviseth his Land to give or dispose of, or sell at his will, this is a Fee-simple. 19 H. 8. 96. 7 Ed. 6. Devise 38. And the reason in all these cases is, because that by these words the intent of the Devisor doth appear that a Fee shall pass, and therefore the defect of words shall not defeat his intent. And as the intent is sufficient without apt words to make an Estate, so is it also to describe the person who shall take the Devise, although he be not formally named according to the precise rule in Grants: as in 21 R. 2. Devise 17. where one devised Land to one for life, the remainder to another for life, the remainder to the Church of St. Andrews in Holborn: and it was adjudged, that after the death of the Devisees for life, the Parson of the Church shall have the Land, for in as much as the Church was not capable, it shall be taken, that the intent of the Devisor was, that the Parson, who is as it were the Father of the Church, and so the Head of it, should have the Estate. And in the 13 H. 7. 17. In every Devise the intent of the Devisor shall be taken: for if a man deviseth all his goods to his Wife, and that after his decease his Son and Heir shall have his House, although that no Devise of the House be made to the Wife by express words, but by implication, because the Heir is not to have the House during the Wifes life, yet because the intent of the Devisor was, that the Son should not have it during the life of his Wife, she shall have the House for her life: To which all agreed.

Then in our case, 1. The Devisor willeth, that a Chaplain shall celebrate for his Soul, and that he shall have eight Marks out of his Tenements yearly for his stipend, but if he had stayed there, the Devise should have been voyd, for the Chaplain is not such a person as may take these eight Marks as a Rent: and therefore he goes further, and first he limits what service the Preist shall do, and this he appoints to be done by the disposition of the Parson.

2. He doth dispose of the residue of the profits of the Tenement for such a time, (viz.) until R. shall be 24 years of age, and be a Priest; and doth devise, that he shall be preferred to the Chantery before any other, if he will accept it, and if not, that he shall have nothing.

3. He makes provision for the perpetual continuance of the Chap­lain, in these words, (scil.) That the Parson and four of the best of the Parishioners shall present and finde a Chaplain to perform the said Chan­tery for ever, de tenementis meis superius non legat. which is the said Tenement out of which the said eight Marks are limited to be payd.

4. He doth inflict a penalty upon the Parson, if the Chantery should be voyd, (scil.) That the other Land devised by him to the Parson, shall [Page 106] go to the Wardens of L. Bridg, for the reparation thereof.

5. He makes a perpetual disposition for the residue of the profits of the Tenement, (viz.) That they shall be put into a Chest under the cu­stody of the Parson and four of the Parishioners, to buy ornaments and Books for the Church.

And these parts of the Will being well considered (as I conceive) it will be clear, that the intent of the Devisor was, that the Parson should have this Tenement; for here the main scope of his Will is, that a Chaplain shall be maintained perpetually, and that he shall have eight Marks stipend out of that Tenement, and that it shall be provided and found by the Parson and four of the Parishioners, and that the residue of the profits shall be bestowed by them to buy orna­ments and Books for the Church: so that a perpetual charge is im­posed upon the Parson, (scil.) to finde the Priest, and to buy orna­ments, &c. and this charge is to be defrayed with the profits of the Tenement, and that can be done by none but by him that shall be owner of the Tenement: and therefore it follows that the Parson shall have the Tenement.

And that such implication in a Will is sufficient to make an Estate, is proved by the 15 H. 7. 126. If one devises his Land to be sold for payment of his Debts, the Executor shall sell the Land, for because the charge to pay Debts lies upon the Executors, his intent shall be taken to have them sell the Land: and 22 and 23 Elizab. Dyer 171. A man seised in Fee of divers Mannors, doth devise them to his Sister in Fee (except my Mannor of D. which I do appoint to pay my Debts) and makes two Executors, and dyes; and one Executor dyes, and the other sells th [...] Mannor, and adjudged good, for so his intent shall be taken, and not to relinquish it to his Sister: and 19 H. 6. 24 and 25. and 1 Edw. 6. Devise 36. If one devise that his Executor shall sell his Land, this is no devise of the Land to them, but an authority; for they may perform the Devisor to sell the Land, although they have no Estate therein, and the Vendee shall be in by the Devisor: but if one devise that his Executors shall grant a Rent-charge out of his Land, or that they shall give the Land in Fee or in Tayl to I. S. this is an im­plyed Devise to them, for otherwise they cannot perform the intent of the Devisor. Trin. 9 Eliz. 516. and so in the 40 Assis. 26. One did de­vise his Land in L. to A. and his Heirs to finde twelve Marks for two Chaplains, and grants that the Parson and the Parish may distrein for this if it be behinde: and there it is debated whether the King shall have the twelve Marks or not? and it is agreed there, that the Chap­lains have no Estate in it, because they are removable at the will of A. but because the Distress is given to the Parson who is perpetual, it was adjudged that the King shall have the twelve Marks: whereupon I do observe, that by this Distress limited to the Parson and the Parishioners, the twelve Marks were vested as a Rent in the Parson, and so made it a Mortmain.

Object. But it may be objected, That the last clause in the Will for the dis­posing of the residue of the profits, does go onely to the Land devised to Wardens of the Bridg.

Answer. But this cannot be: First, because that the Land devised to them, is onely a Chamber, and a mansion of little value, and that is to repair the Bridg; and that is a work of such charge, that no surplussage can be intended. Secondly, The clause is, Id quod clarum fuerit ultra solu­tionem & reparationem, &c. which are the very words in the clause [Page 107] used for the disposing of the residue to R. for the time, and cannot be referred to the Devise of the Wardens of the Bridge, because that the things devised to them are apparently to be for the reparation only, and no payment is limited out of it, but the Tenement out of which the Stipend is to be payd, is first charged with this payment, and then with the reparation of the Tenement, and then with the Ornaments and Books for the Church.

And afterwards this Case was argued by Coventrey the Kings Sol­licitor for the Plaintiff, and by S. Chibborne for the Defendant. And Mich. 16. Jac. The Barons (viz.) Tanfeild, Bromley, and Denham did openly declare their opinion, that the Land was not demised to the Parson by this Will, and thereupon they commanded Iudgment to be entred for the Defendant which was entred accordingly.

Trinit. 15 Jacob. John Adams against Roger James Knight, and others.

IN a Replevin for taking of twelve Cowes and two Calves, the twen­ty fourth of May, the 14. of King James, at Upminster, in a place cal­led Nelfeild, alias Newfeild, ad damnum 10 l.

The Defendants did justifie the taking, &c. as Bayliffs of Thomas James, and Moily Deale, for that the place contained twen [...] acres of Pasture: And that William Latham was seised in Fee of the Mannor of Upminster, whereof the said twenty acres are parcell, and the twenty fifth Maii, 13 Eliz. devised the same to George Wiseman, excepting one Close of Land or Pasture called Crouckfeild, containing by estimation fifty acres, and a parcell of a Close called Ecrowchfeild, containing by estimation sixty acres, and all Woods, and Frees, and Profits of Court Leets, Waifes, Estrayes, Escheats, Hermots, Reliefs, Goods, and Chattels of Felons and Fugitives, Deodands and Treasure Trove. Habendum from Michaelm. 1576. for sixty one years, rendring forty pounds Rent at the Annunciation and Michaelmas.

The first of Octob. 1576. George Wiseman entred.

The twentieth of August, 35 Eliz. William Latham by Deed inroled for the consideration of two thousand pounds, did bargain and sell the Mannor to Roger James Father of the Defendant Roger in Fee: and the 15 Decemb. 39 Eliz. Roger James the Bargaines did devise the third part of the Mannor to John his Son, after whose death John was seised of the third part in Fee.

The seventh of August, 11 Jacob. John James by Indenture for a thousand pounds paid by Thomas Fryth, did bargain and sell to the said Thomas Fryth and Moyle Deale, the said Reversion of the said third part. Habendum from the said seventh of August, for a hundred years, (ex intentione) that they should grant or assign the said term, to Tho­mas Fryth, or his Assignes, upon condition that he should pay a thou­sand pounds to the said Roger James, viz. five hundred pounds the seventeenth of August, 1614. and five hundred pounds the seventeenth of Febr. next after. And because sixty pounds thirteen shillings foure pence was behind to the said Thomas James, and Moyle Deale for halfe a yeare, ending at Mich. 12 Jac. they did well justifie the taking, &c.

The Plaintiff said, that after the seventh of August, Bar. 11 Jac. and be­fore the said Mich. 12 Jac. viz. the ninth of August, the 11 Jac. the said Thomas James and Moyle Deale did bargain and sell to the said Thomas [Page 108] Fryth all their Estate in the said third part, whereby he was and yet is possessed.

ReplicationThe Avowants replyed that the Bargain and Sale was upon Condi­tion to pay the said thousand pounds to the said Roger James at the said days of payment, and that Thomas Fryth did not pay the said five hun­dred pounds the seventeenth of August, 1614.

Rejoynder.The Plaintiff rejoyned, that after the said ninth of August, 11 Jac. (scil.) 10. August, 11 Jac. the said John James was seised in Fee of the Reversion of the third part expectant upon the estate of the said George Wiseman.

And that the tenth of August, 11 Jacob. John James by Indenture in­roled did bargain and sell the said Reversion to the said Thomas Fryth and his heires.

That the seventeenth of August, 11 Jac. John James by Indenture dated the aforesaid seventh of August, 11 Jac. f [...]r a thousand pounds, did bargain and sell the said third part to the said Thomas James, and Moyle Deale, Habendum from the said seventh of August, 11 Jac. for a hundred years, and that they after (scil.) the aforesaid seventeenth of August, 11 Jac. did bargain and sell to the said Thomas Fryth upon condition be­fore expressed. Absque hoc, that the said John James did bargain and sell to the said Thomas James, and Moyle Deale, the said Reversion before the said tenth of August, 11 Jac. and absque hoc that the said Thomas James and Moyle Deale, before the said tenth of August, 11 Jac. did bar­gain and grant the said Reversion to the said Thomas Fryth, on condi­tion as aforesaid.

Vpon which the Avowants demurred, and shewed for cause, that this is a departure from the Bar, and that the said Rejoynder is in it self repugnant.

And I conceive that Iudgment ought to be given for the Plaintiff in the Replevin, for that the Conusance is utterly insufficient for three causes.

1. The Defendants make Conusance as Bayliffs to Thomas James, and Moyle Deale, and do endeavour to entitle themselves to a third part of the Reversion and Rent upon the Lease to Wiseman, by the De­vise of Roger James, and it doth not appear in all the Conusance that Roger James was dead before the Grant made by John James to the said Thomas James and Deale; for it is not set forth that he died, but only by implication (scil.) the bargain and sale by Latham is pleaded to Roger James lately dead, which doth refer to the time of the plea which was long after the Grant to Thomas James, and Deale, and after the Rent due and the taking of the Distresse, then it is alledged, that after the death of Roger James the Devisor John James entred, which is not suf­ficient, because it is not alledged in fact that he dyed, or when he di [...] dye.

And all the Court agreed the Avowry insufficient as to this excep­tion.

Secondly, the bargain and sale of the Reversion by John James to the said Thomas James, and Moyle Deale is pleaded to be made the seventh of August, 11 Jac. Habendum from the aforesaid seventh of August, for a hundred years, whereby the day it self is excluded, and so the Grant is to take effect in the future, which cannot be by the Rules of Law: as in Bucklers Case, 2. Rep. where Buckler Tenant for life in Mich. Term, 20 Eliz. made a Lease for four years, the Lessee entred, and the Lessor did grant the Land, habendum from Midsomer next for life, the Lesses [Page 109] after Midsomer did attorn, and adjudged that the Grant was void, and in Barkwicks Case, 5: Rep. the reason thereof is given, because that if the Grant should be good, the Grantor should have a particular Estate (scil.) during the first day of the date, or in the mean time untill the Grant did begin to take effect, without any Donor or Lessor which is a­gainst the Rules of Law.

And although this Grant of the Reversion be but for years, yet is it all one, for the diversity is between a Lease for years, made Tenant in Fee or for life to commence in future, and a grant of a Reversion, for in the first Case it is but a future Charge upon the Land, so that the Lessor hath his former Estate untill the Lease doth begin, and the Lessee hath no Term but only interesse termin. and therefore Hil. 38. E­liz. in the Common Pleas, between Row and White, it was agreed, that if the Lessor be disseised before the Lease begins, the Lessee after the day of the Commencement may grant the term, otherwise where a Lessee for yeares in possession is outed by an estranger, for there his Term is turned into a Right, but in the first Case he hath not any Term in esse, and therefore it cannot be turned into a Right, nor any wrong done thereunto.

And for direct Authorities in this Case, 29 Eliz. in the Common Pleas, the Countesse of Kents Case; Where one having a Reversion in Fee does grant this, Habendum after the death of I. S. for years, and it was adjudged a void Grant: And Trin. 39 Eliz. Johnson and Somer­set in the Common Pleas, Lessee for life grants the Reversion, Ha­bendum a die dat. for ten years, and adjudged a void Grant. And in the Comment. 155. by Brown, If one having a Reversion does grant it habendum after a day to come for years, this is a void Grant, for if it may be granted from a day to come, the Grantor shall have a particular E­state in the mean time by his own making, which cannot be, that one may be Lessor to himself, or diminish his own Estate, and there it is taken for a Rule, that when there is a Rent in Esse, or a Reversion, &c. a man cannot make this to be in esse for a time, and to cease for another time, or to grant it to another after the death of any, or from a day to come, relinquishing to himself an Estate in the mean time: And in the Comment. 197. b. Adams against Wortesbey, agreed there, that a Reversion cannot passe as a Reversion, according to the common un­derstanding thereof from a day to come.

But Haughton conceived, that this Case being a bargain and sale whereby the use doth passe first, this may well passe from a day to come. Quod nullus dedixit.

Thirdly, It is not averred that the twenty acres in which the Di­stresse was taken, was not part of the Closes excepted, so that it may be part of them, and then no Distresse for the Rent can be taken there.

And although it may be gathered by some words in the Bar to the A­vowry, that the place where, &c. was parcell of the Land devised to Wiseman, yet this shall not help the Conusans, as in Cokes 7. Rep. fol. 24, & 25. where one having Land in Fee, and another Land for years, did grant a Rent for life out of both, the Grantee distrained for the Rent, and avowed that the Rent was granted out of the Lease land a­mongst other lands, whereas he ought to have alledged the Rent to be granted out of the Land in Fee only, and although the Plaintiff in his Bar to the Avowry hath shewed the truth of the Case, yet this will not make the Avowry which wants substance to be good.

Judgment.And all the Court did agree the Avowry to be naught for this excep­tion. Wherefore Iudgment was given for the Plaintiff in the Re­plevin.

Mich. 14 Jac. Webb and Jucks Case against Wor­feild.Rot. 266.

IN a Writ of Error to reverse a Iudgment given in the Common Pleas, for the now Defendant against the now Plaintiffs.

In which the Plaintiff did declare, that the Defendants the four­teenth of Febr. 9 Jac. at Ponick in a place called Brancefords Court, did take an Oxe from the Plaintiff, ad damnum forty pounds.

The Defendants did acknowledge the taking of the said Oxe as Bay­liffs to Elizabeth Ligon Widow, for that the place where, &c. contain­ed two acres of Land, and that one Anne Ligon was seised in Fee of the Scite of the Mannor of Bransford, and of seven Messuages, three Gardens, and a hundred and fifty acres of Land, forty two of Meadow, sixty six of Pasture, five of Wood, and seventy of Furzes and Heath, in Ponick aforesaid, Bransford Leigh, Newland, and Wick, whereof the place where, &c. is parcell.

That the sixth of September, the twenty fourth of H 8. Anne Ligon did devise this to John Parsons and Anne his Daughter for seventy years, after the death of Elizabeth his wife, if they, or either of them shall so long live, rendring five pounds, four shillings, eight pence Rent, at the Annunciation, Christmas, Midsummer, and Michaelmas.

That the eleventh of August, 1554. Elizabeth Parsons died, where­upon John and Anne Parsons entred.

And Ligon dies, whereby the Reversion descended to Sir Rich. Ligon her Son and Heir, and Sir Richard died, wherby the same descended to William Ligon his Son and Heir, who died also, whereby the same de­scended to Richard Ligon his Son and Heir, who died also, and the same descended to Sir Richard Ligon his Son and heire, who Hil. 33 Eliz. did levy a Fine Sur Conusans de droit come ceo, &c. to the use of him­self for life, the Remainder to the said Elizabeth Ligon, then his Wife for life, the Remainder to the Heirs of the body of Sir William, the Re­mainder to the right Heires of Sir William.

10 May 4. Jac. John Parsons died.

Pasch. 6 Jac. Sir William Ligon and Elizabeth his wife did levy a Fine to the Plaintiff, to the use of the Plaintiff for the life of Sir Wil­liam, the Remainder to the said Elizabeth for her life, the Remainder to the Plaintiff in Fee.

Sir William dies, whereby the Reversion does remain to Elizabeth his Wife.

And for seventy eight pounds, six pence of the said Rent for three quar­ters of a year, ending at Christmas, 9 Jacob. they did acknowledge, &c. and they averred the lives of the said Elizabeth Ligon, and the said Anne Parsons.

Bar.The Plaintiff said, that the Fine levied by Sir William and Eliza­beth his wife, was to the use of the Plaintiff and his Heirs, and justi­fied the putting in of the said Oxe by the license of the said Anne Par­sons. Absque hoc, that the said Fine was to the use of the Plaintiff for the life of Sir William, the Remainder to the said Elizabeth for life, [Page 111] the Remainder to the Plaintiff in Fee, as the Defendants alledged, and so they were at Issue.

And the Iury found the Lease and the descent of the Reversion, and the Fine, 33 Eliz. and the use, and the death of John Parsons, ut supra.

And that the one and twentieth of September, 5 Jac. Sir William Li­gon and Elizabeth his wife did make a Deed of Indenture of the said Tenements in these words:

This Indenture made, &c. between them of the one part, and the Plain­tiff on the other part, whereby Sir William for seven hundred pounds before the ensealing and delivery paid to Sir William by the Plaintiff, did covenant that he and Sir William before Christmas next, should levy to the Plaintiff a Fine with Proclamations of the said Tenements, which Fine and all Fines and Assurances to be had within seven years, should be to the use of the Plaintiff and his Heirs, upon Condition that if Sir Wil­liam and Elizabeth, or any of them, or the Heirs or Assigns of Sir Wil­liam should pay to the Plaintiff or his Assigns nine hundred forty three pounds at the Annunciation 1611. that the Estate of the Plaintiff should cease, and that Sir William and Elizabeth and his Heirs should enter, and the Fine should be to the use of Sir William and Elizabeth, and the heirs of Sir William: And Sir William covenanted with the Plaintiff that he and his Heirs untill the nine hundred forty three pounds be to be paid, should have and enjoy to their use, under the said Condition, and accor­ding to the meaning of the said Indenture, and if default of payment should be made, then after such default, the Premisses and the Rents and Profits thereof if such default should be, shall be taken and enjoyed to their use, without any interruption of Sir William and Elizabeth, &c. and discharged and saved harmlesse of all Incumbrances, &c. made by Sir William, &c. (except the said Lease) and Sir William covenanted, that if the nine hundred forty three pounds should be paid, to pay to the Plaintiff the charge of the assurance.

Pasch. 5 Jac. The Fine was levied by Sir William and his wife to the Plaintiff, and they found that the sixteenth of April, 6 Jac. the Co­nusance of the Fine was made at M. in the County of Wilts, and that after the said Conusance, and before the said fifth of September, Pasch. 20. Martii. 5 Jac. the said Sir William made another Indenture between him and his wife of the one part, and the Plaintiff of the other part, whereby Sir William and Elizabeth for seven hundred pounds before paid to them by the Plaintiff, Sir William and Elizabeth did bargain sell, and grant to the Plaintiff and his heirs, the said Tenements upon the like Condition as aforesaid, and Sir William did covenant that he and his wife should make a further assurance by Fine, &c. and that all such assurances should be to the Plaintiff and his Heirs, under the said Condition untill default of payment, and after such default to the use of the Plaintiff and his heirs absolutely, and if payment be made to the use of Sir William and Elizabeth, and the heirs of Sir William, and the Plaintiff did covenant that Sir William and Elizabeth, and their heirs, untill the Annunciation, 1611. should have all the Rents and Profits of the Premisses, without interruption of the Plaintiff or his heirs.

That the eighth of December, 6 Jac. Sir William Ligon died, after whose death (scil.) the aforesaid time quo, &c. the Defendants as Bay­liffs to Elizabeth, did take the said Oxe in the said place, for the said se­venty eight pounds, six pence of the said Rent for three quarters, ending at Christmas, 9 Jac.

But whether the Distresse was well or not, they prayed the advice of the Court, &c.

And upon this Verdict it was adjudged in the Common Pleas after many Arguments, that the Plaintiff should recover.

For all the Iustices did agree, that the said Fine was to the use of the Plaintiff, and his Heirs, whereupon the Defendant brought this Writ of Error, and assigned the Error in the point of Iudgment only.

And it was objected by the Councell of the Plaintiffs in the Writ of Error that, that it was apparent upon this assurance, that it was made for the assurance of the payment of seven hundred pounds lent by the Plaintiff to Sir William, and Sir William was to repay nine hundred forty three pounds which was full Interest, according to the rate of ten in the hundred, and then by the expresse Covenant in the first Inden­ture, the Defendant in the Writ of Error was to have the Rents and Profits of the Land also, whereby Worfeild should have more then ten pounds in the hundred, and then the assurance is void by the Statute of Vsury, then, although by the last Indenture it is provided that Sir William and his wife should have the Rents and Profits, untill the day of payment, yet this shall not bind the wife, for it is found expresly that she did disagree to this Indenture.

But I conceive that the Distresse was not well taken, but that the Fine was to the use of William Worfeild and his heirs, and so the Rent belonged to him.

And first as to the Objection, that the assurance is void by reason of the Statute of Vsury; that cannot be.

1. Because it was not found that there was any lone of mony, or usurious Contract, and therefore it may be and so it shall be intended, that the seven hundred pounds was paid bona fide, after the purchase of this conditionall Estate made to William Worfeild.

2. The Consideration is for seven hundred pounds paid before the en­sealing and delivery of the Indenture, so that if it be admitted that the seven hundred pounds was lent as Interest, yet it may be that this was tent so long before the making of the Indenture, that the nine hundred forty three pounds to be paid with the Profits of the Land, does not ex­ceed the principall debt, according to the rate of ten pounds in the hun­dred. And that Vsury shall not be intended without it be expresly found by the Iury, vide Coke 10. Rep. the Case of the Chancellor of Oxford, fol. 56. Covin shall not be intended or presumed in Law, un­lesse that it be expresly averred: and so was it agreed in the Case be­tween Tyrer and Littleton, in the Common Pleas, for the taking of an Oxe, The Defendant pleaded Not guilty, and the Iury found that Thomas Tyrer held certain Land of John Littleton by Rent and Her­riot,: and the 42 of Eliz. did enfeoff John Tyrer his Son and heir who made a Lease to Thomas Tyrer for forty years, if he should so long live, to the intent that Joyce whom he intended to marry should not have her Dower during his life; Thomas died possessed of the Oxe, and the Defendant took it for a Herriot. And they found the Statute of Frau­dulent conveyances, &c. and it was adjudged that forasmuch as the Fe­offment was not found by the Iury to be fraudulent, the Court could not adjudge it to be fraudulent, although the Iury had found circum­stances and inducements to prove the fraud: and in the 8. Rep. Love­days Case, In an Information upon the Statute of Vsury, the Iury found that the Defendant did accept a certain summe above ten pounds in the hundred for forbearance of the money, but no lone of money was [Page 113] found: Wherefore it was adjudged that the Verdict was insufficient, and a new Venire was awarded.

Henden. The Fine shall be directed onely by the last Indenture, for that does controul the first Indenture. Count. Rutlands Case, Cook. Rep.

But all the Court agreed, that the Count shall be directed by the first Indenture as to the Wife, for her disagreement to the second Indenture doth prove & enforce her agreement to the first, and then the use limited by both Indentures being all one, (scil.) to the use of William Worfield and his Heirs, and no variance between them in the limitation of the use, it is clear that the use shall be to the Plaintiff and his Heirs.

Wherefore it was adjudged that the Iudgment given in the Com­mon-Pleas should be affirmed.

But Haughton said, that the Verdict was not good, for that the use being matter of fact, ought to have been found by the Iury, and not left to the Court. To which it was answered, that the Iury did conclude,Judgment. That if the Distress was well taken, that the Fine was to one use; but if not, then it was to another use, which was sufficient. Whereupon he assented to the affirming of the Iudgment.

Trinit. 15 Jac. The King and William Allen against Theophilus Newton.Rot. 318.

WIlliam Allen, as well for the King as for himself, did inform against Theophilus Newton, for that the Defendant not being assigned, named, or appointed to keep a Tavern within the Town of Tiverton, according to the Statute of the first of November, 13 Jacob. and for one hundred day between the first of November, and at the day of the Exhibition of the Information, to wit, the 26 of Octob. the 14 of King James, at Tiverton, did of his own authority keep and main­tain a common Tavern; and within the said time did utter and sell Claret-wine, and White-wine, and Sack, and divers other kinds of Wine, to divers subjects of the King, by retail, contrary to the form of the Statute, whereby an Action did accrue to the King and the In­former, to have of the Defendant 505 l. for every one of the said hun­dred days; whereof the Informer prayed the moyety.

The Defendant, as to the Keeping the Tavern, and uttering of the Wines the first of Novemb. 13 Jacob. and all the other days between the said first of Novemb. 13 Jacob. and the said 26 Octob. 14 King James, saving fourty of the said hundred days, did plead Not guilty. And as to the said fourty days he said that the King the fourth of Janu­ary the 3^d Jacob. by his Letters Patents under the great Seal, did grant License to Richard King and his Assigns, Thomas King and his Assigns, and John King and his Assigns, that the said Richard and his Assigns during his life, for him and themselves, their servants, deputies, and assigns, or any of them; and that the said Thomas and his assigns, after the death of the said Richard, for him and themselves, their ser­vants and deputies, or any of them, during the life of the said Thomas; and so the said John, after the death of Richard and Thomas, &c. during the life of the said John, may have, use, occupy, and hold a Wine-Celler within the Town of Tiverton in the County of Devon, in domo mantionali in qua praedictus Richardus & Thomas & Johannes ad tunc inhabitabant, vel ex tunc in posterum inhabitur. infra praedict. Vill. de [Page 114] Tiverton, de tempore in tempus vendere & utterare per retail (viz.) by the Gallon, Pottle, Quart, or Pint, or less or greater measure, all manner of good and wholesom Wine of what kinde soever, as well within their houses, as out of their houses, at his or their pleasure, and at and for such price, as from time to time the said Wines for reasonable gain may be afforded, without any Impeachment, notwithstanding the Statute of 7 Ed. 6.

That the first of September, 13 Jacob. Richard King dyed.

The last of August, 14 Jacob. Thomas King, by Deed shewn, did or­dain the Defendant to be his Assignee, to draw and sell all good and wholesom Wines in the then Mansion House of the said Thomas in Tiverton, and to retail them without the said Houses for such prices as for reasonable gain may be afforded for one year: wherefore the De­fendant after the said last of August, and before the Exhibition of the Information, scil. within the said fourty days, parcel of the said hun­dred days, at Tiverton aforesaid, in the then Mansion House of the afore­said Thomas, as his Assignee, did hold a common Tavern, and did sell and utter Claret, White-wine, and Sack, and other Wines by retail: And did aver, that he sold the said Wines for such prices as he could reasonably afford, and that they were good and wholesom Wines; and that the said Thomas is alive at Tiverton aforesaid, and that Tiverton in the Letters Patents, and Tiverton in the Information, is all one Town.

And I conceive that Iudgment ought to be given for the King and the Informer against the Defendant.

For the License is not pursued, for it is to keep a Tavern in the Mansion House, in which the three parties did then inhabit, or should after inhabit, whereby the King hath restrained this liberty to a cer­tain place; and the Defendant doth justifie under the License of Tho­mas King, or his Assignee, to keep a Tavern in his Mansion House, which is not warranted by the Kings License. And that every authori­ty ought to be pursued strictly, Dyer 177. a. Cestuy que use before the Statute of 27 of Hen. 8. did will, that A. B. and C. should sell the Land, and dyes, B. and C. cannot sell the Land, for that it was a joynt authority to them all three: and the 27 H. 8. 6. A Warrant of Attor­ney to three joyntly and severally to make livery, one of the three may make livery, but not two of them, by Baldwin: and 30 Ed. 3. 17. The King doth license one to alien his Mannor of D. who doth alien it, ex­cepting twelve acres, this License will not serve: and 3 Ed. 3. 5. One by Fine does grant and render the Mannor of D. to the Abbot of G. and his successors, and shewed a Charter whereby the King gave leave to the Conusor to render to finde two Chaplains, &c. and he would have levyed the Fine without mentioning of the Chaplains; where­upon the Court did refuse it, because it was disagreeing to the Charter of leave, and after he levyed the Fine according to the Charter: and in the 21 H. 7. 8. a. When the King grants a License, it ought to be strictly executed; as if the King should License one to make a Feoff­ment by Deed, he cannot make it without Deed, and so e converso: so that the License is always to be pursued, or else there is no Warrant at all. Vide Comment. 68. Dive and Manningham. If the King doth license one to alien the third part of his Land, and he aliens all, by Montague, the alienation is without warrant. And 23 H. 8. 6. Patent 76. If the King doth licence one to alien his Mannor of D. and he doth alien it excepting one acre, the License shall not serve: and if the [Page 115] King doth license one to impark an hundred acres, and he does impark them, and after adds ten acres, this is no Park. And 38 H. 6. 10. If the King grants a Leet to one in all his Land, he shall not have it, but in the Land which he had at the time of the Grant.

And this matter is enforced by the preamble of the Statute of the 7 Edw. 6. and the fifth, which is, For the avoyding of many inconveni­ences, much evil rule and resort of disordered persons to many Taverns newly set up, in very great number, in Back-Lanes and suspicious places within London, and otherwhere: whereby it is to be presumed, that the King did take notice of the House in which the parties did then inhabit, to be a fit place, and he trusted all of them, but would not trust any one of them.

This License cannot be granted over. 2

12 H. 7. 25. In a Trespass for hunting in his Park, and killing of his Deer, the Defendant justified by a License given to I. S. his Ma­ster, under whom he as servant to him, and by his commandment made the Trespass; and resolved, that a License doth not extend but to him to whom it is given, and cannot be granted over: and with this accords 18 Edw. 4. 14. and Dyer 34 H. 8.

The Defendant hath not answered to the greatest part of the time 3 contained in the Information, for the Information is from the first of Novemb. 13 Jac. and a hundred other days between the first of Novem. 13 Jac. and the 26 Octob. 14 Jac. and then the Defendant pleads not guilty the first of November, and all the other days between the first of November and the 26 Octob. saving fourty of the said days, and for the fourty days he justifies by vertue of a License the last of August. 14 Jac. so that it may be that the fourty days that the Information men­tions were before this time, for he hath the benefit of all days between the first of Novemb. and the 26 Octob. and the Not guilty at the first of November and an hundred days between that and the 26 October, and the fourty days excepted in the [Not guilty] may be as well before the last of August as afterwards; and it is at the election of the Infor­mer to charge the Defendant with fourty days, at what time he will between the first of Novemb. and 26 of Octob. As in a Trespass for breaking a Close, the Plaintiff may after upon a new assignment, or in evidence upon Not guilty pleaded, assign the Trespass in what Land he will within the same Town, although he hath many Closes there: and therefore in this case, the Defendant ought to have pleaded Not guilty for all the days, until the last of August, and then to have justified by his License. As in a Trespass, if the Defendant do justi­fie at another day by License, he ought to traverse the time before and after, for that the Plaintiff may charge him at what time he will.

The Plea is, that the Defendant did sell his Wines at such reason­able 4 prices as he could afford them, which is utterly insufficient, for he ought to have shewed what prices, so that the Court might judg whe­ther they were reasonable or not: as in 22 Ed. 4. 40. the Lord Lisle [...] Case, to shew a sufficient discharge of Rent. And although it would be tedious to shew the price of every Quart and Pint, yet he may al­ledg how he sells by the Quart of each kinde of Wine, especially of so short a time.

And Michaelm. 15 King James, JudgmentJudgment. was given for the De­fendant against the Informer, because it was not averred that Tiver­ton was a Corporate or Market Town; and the Statute gives several [Page 116] penalties, one for keeping of a Tavern in such a Town without Li­cense, and another penalty for keeping of a Tavern in other places without License.

Trinit. 15 Jacob. Lee and his wife against Wood Knight, Defendant.

IN an Action of Debt upon a Bond of 100 l. made by the Defendant to the Plaintiff Elizabeth when she was sole, 7 Decemb. 13 Jacob. upon condition to pay 70 l. to the said Elizabeth the ninth of Decem­ber, 1616.

The Defendant after Oyer of the condition said, that the 17 Februa. 13 Jacob. the said Elizabeth by Indenture reciting, that whereas the Defendant, with John and William Wood his sons, were bound joyntly and severally to the said Elizabeth in a Bond of 1400 l. 6 December, 13 Jacob. upon condition to pay 700 l. the eighth of October, 1616. and by an Obligation of 120 l. 7 Octob. 13 Jacob. on condition to pay 70 l. the ninth of December, 1616. and by five other several Obliga­tions the seventh of December, 13 Jacob. every one of them of 100 l. upon several conditions to pay 35 l. the tenth of June, 1617. and 35 l. the ninth of December then next, and 35 l. the 10 of June, 1618. and 35 l. the ninth of December then next, and 35 l. the tenth of June, 1619. and 35 l. the ninth of December then next, and 35 l. the tenth of June, 1620. and 35 l. the ninth of December then next, and 35 l. the tenth of June, 1621. and 35 l. the ninth of December then next. The said Elizabeth did agree, covenant and grant with the said Defendant, that if the De­fendant should pay to Elizabeth, the Daughter of the said Elizabeth the Plaintiff, 500 l. due to her by the Will of Edmund Pigot her Father, in full discharge of a Legacy or Portion given to her by the said Will; or should procure to Elizabeth the Plaintiff a sufficient discharge for the said 500 l. of the said Elizabeth Daughter of the said Elizabeth, and should provide and take course for fit maintenance for the said Elizabeth during her life, and at all times upon request should save harmless the said Elizabeth, and her Executors and Assigns, of and from the pay­ment of the said 500 l. and also shall pay to Susan the Daughter of Elizabeth the first of May, 1621. if she shall then be living and not marryed, 400 l. if the same shall then be due by the said Will: and if the said Susan shall live until the first of May, 1623. and then shall he marryed, and her portion not payd, then if the Defendant shall pay to the said Susan the said 400 l. within six weeks after the said first of May, to such person to whom the said Elizabeth by the said Will ought to pay the same, and shall procure good and sufficient discharge to the said Elizabeth of the said sum, of and from all persons to whom the same shall be due, that then all the said Obligations shall be voyd, and delivered up to the Defendant, cancelled and made voyd. And the said Elizabeth did covenant, that until manifest default was made in the premisses, and the said Elizabeth shall be thereof damnified, and upon reasonable request no satisfaction shall be given to her, she will not take any advantage by reason of the said Obligation, nor will prosecute any Suit against the Defendant or any other bound in the said Obliga­tion. And the Defendants said, that the Plaintiffs, nor any of them, was not damnified by reason of the said Obligation in the Declaration, or by reason of any of the said other Obligations; and did aver the [Page 117] said Obligation in the Declaration, and the said Obligation of 120 l. in the Indenture, to be all one; and that the said several days of pay­ment limited by the Indenture, nor any of them at the time of the Writ purchased, were incurred.

Vpon which Plea the Plaintiffs demurred, and the Defendant did joyn.

And I conceive that Iudgment ought to be given for the Plaintiffs, for the Plea is utterly insufficient for divers causes. And yet I do agree, that although the Obligation be upon a condition, yet is the In­denture a Defeasance thereof; so that it is sufficient to the Defendant to perform the one or the other. But the Indenture is of two parts: 1. That if the Defendant shall pay to Elizabeth the daughter 500 l. and shall perform the other things mentioned in the Plea, that all the Obligations shall be voyd and delivered up. 2. The Plaintiff Eliza­beth did covenant, that until the Defendant should make default in the premisses, and she should be damnified, and upon request no satisfaction given to her, she should not take any advantage of the Obligation, nor shall prosecute any Suit against the Defendant or any other bound in the said Obligation.

And as to the first part, I do agree that this is a good defeasance of the Obligation, but the last clause is onely a Covenant, and cannot be pleaded in bar of this Action brought upon this Obligation: as in the 21 H. 7. 30. John de Pusetoes Case: The said John and others were bound to T. who by Deed did grant to the said John, that he should be quite discharged of the duty, and if he be vexed or sued, that the Bond shall be voyd, which Case is there very largely argued: but I con­ceive the better Opinion to be, that the Bond is discharged, because that the words are in effect as the words in the first part of this Inden­ture, (scil.) That if such act be made, the Obligation shall be voyd. But there Fineux said, That if I grant to my Tenant for life, that he shall not be impeachable for waste, he shall not plead this in Bar, but shall have an Action of Covenant thereupon. And Brudnell put this case, That if I grant to one against whom I have cause of Action, that I will not sue him within a year, this is not any suspension of the Action: Vpon which case it is to be observed, that I may sue, and the other is put to his Action of Covenant.

And the Plea is first insufficient, because he pleads that the Plain­tiffs, 1 nor any of them, were damnified by reason of the Bond in the Declaration, or by reason of any of the aforesaid Writings obligatory in the said Indenture specified: but he does not answer to the damnifi­cation by reason of the 500 l. to be payd to Elizabeth the daughter, which is the principal matter to be done by the Defendant for the defea­sance, and in truth this Portion was due, and not payd before this Suit begun.

The Defendant did aver, that the several days of payment limited 2 by the Indenture are not incurred, and there is not any day limited for the payment of 500 l. and the truth was, that it is payable at the time of the marriage of Elizabeth the daughter, but this is not limited by the Indenture, nor any time for the payment thereof, and therefore this a verment is not good.

The Indenture of the Defeasance is, if the Defendant shall pay the 3 500 l. or procure to the Plaintiff Elizabeth sufficent discharge for the same, and shall provide fit maintenance for Elizabeth the daughter: Whereupon I conceive that the Defendant ought to pay 500 l. and [Page 118] provide maintenance for the daughter, or otherwise that he should pro­cure a discharge from the Plaintiff Elizabeth, and shall also provide maintenance for the daughter, for her maintenance is as necessary, if the mony be payd, as it will be, if the discharge be procured. And the Defendant hath made no answer to the providing of maintenance.

Judgment.And Michaelm. 15 Jacob. Iudgment by all the Court was given for the Plaintiff.

Rot. 590.Trinit. 16 Jacob. Margaret Evans against Wilkins.

IN an Action on the Case, for that the Plaintiff the 12 September, 15 Jacob. did retain the Defendant to be her Shepherd, &c. and that the Defendant in consideration of 6 d. to him payd by the Plaintiff, and of 33 s. 4 d. of his Sallery to be payd to him for a year, and in consideration that the Plaintiff did assume to pay the 33 s. 4 d. to the Defendant, and to finde him meat, drink, and lodging for the said year, and to permit the Defendant to have Pasture for twelve Sheep with the Sheep of the Plaintiff, Did assume to serve the Plaintiff as a Shepherd for one year from Michaelmas next, &c. and to keep her Sheep: To which the Plaintiff giving credit, did not retain any other Shepherd: and the Plaintiff did aver, that she was ready to pay the Defendant the said 33 s. 4 d. and to provide him meat, &c. and to permit him to have Pasture for twelve Sheep with the Sheep of the Plaintiff: yet the Defendant did not feed the Sheep of the Plaintiff, although required the 4 Octob. 15 Jacob. whereby many of her Sheep dyed ad damnum 40 l.

The Defendant pleaded the Statute of the 5 Elizab. whereby it is enacted, That the Justices of Peace of every County, or the greater part of them then resident in the County, and also the Sheriff if it may be, and every Major, Bayly, or other chief Officer of any City or Town Corporate, in which there shall be any Justice of Peace within the limits of the said Town, before the tenth of Iune next coming and afterwards, shall yearly at every general Sessions first held and to be kept after Easter, or any convenient time after Easter, shall meet together, and after such meeting shall call to their assistance such discreet and grave persons of the said County or Town, and shall have authority within the said Precincts of their several Commissions, to rate the stipends of all Laborers and Servants, &c. And that every retainment, promise, gift, or stipend against the intent of the said Act, shall be voyd.

And he pleaded the Statute of the 39 Elizab. whereby it is enacted, That after the Rates made and ingrossed in Parchment under the hands and seals of those authorized to make Rates, it shall be lawful for the Sheriff of the said County, or the Major of any City or Town, to cause Proclamation to be made of the said Rates in so many places as shall be convenient, &c.

And that after the making of which Act, and before the tenth of June in the said Act specified, (scil.) at the general Sessions for the Peace, holden for the County of the City of Glocester, holden at the said City on Monday next after Easter, 15 Jacob. before M. P. Major of the said City, Toby Bullock and Anthony Robinson Sheriffs of the said City, and John Jones, and many other Iustices of Peace; it was assigned, ordained, and ratified by them, with the assent of divers other discreet [Page 119] and grave persons call [...]d to them, That every Shepherd, having care of fourty Sheep and above, should take for his stipend, with his meat and drink, in mony per annum 3 l. and no more. And said, that the rate for the said stipend was made and ingrossed in Parchment under the hands and seals of the Major, Sheriffs, and Iustices aforesaid; and that pro­clamation was made of the said Rate within the said City, before the said promise and agreement; and that the stipend agreed to be payd by the Plaintiff, did exceed the rate of 3 l. for a year: and so he said, that his said promise was voyd in Law. Whereupon the Plaintiff demur­red in Law.

And I conceive that Iudgment ought to be given for the Plaintiff, for the Plea is utterly insufficient for divers causes.

It is not averred, that the Iustices who did rate the wages, were the 1 greater part of the Iustices then resident within the County, and that is an authority given to them by the Statute, which reposeth this trust in all the Iustices, or at least in the greater part of them, and therefore this authority ought to be pursued, and because it is not, all that they did is voyd.

The Plea is repugnant in it self, for the rate is alledged to be made 2 after the making of the Statute, and before the tenth of June in the same Act specified, (scil.) at the Sessions the 15 Jacob. which is im­possible to be so: for the tenth day of June in the Act was the fifth year of Elizabeth; and therefore there is a manifest repugnancy: as in 21 H. 7. 34. One was indicted of Felony done the tenth of May, and another was indicted for that he did suffer him to escape the first of May, wherefore he was discharged.

The Iustices ought to call to them some grave men of the County 3 or City, and it is not alledged here that they were of the County, and without them they cannot make any Rate: for the Statute ordains, 1. That they shall call such to them: 2. That they shall confer toge­ther; and consider of the plenty and scarcity, and other circumstances necessary to be considered. 8 H. 7. 13. The Statute of the third of H. 7. doth appoint, that the Chancellor, Treasurer, and Privy Seal, or two of them, shall call to them one Lord Spiritual and another Temporal of the Kings Councel, may examine maintenance, &c. now by this none are Iudges but the said three, and the other but assistants: and so is upon the Statute of 31 Edw. 1. 12. of Error in the Exchequer Chamber: But agreed that it is Error, if the Chancellor does not call the other to assist, and to act with their advisement, because the Statute doth so limit it: and the 14 Ed. 4. 1. which says, That the Chancellor, calling to him the Iustices of the one Bench or the other, hath power to award a Subpoena against such persons, &c. and the Chan­cellor himself did award a Subpoena, and adjudged not good. And so the Statute of Merton, cap. the 3 ^d. of Redisseisin, which ordains, that the Sheriff, taking with him the Coroners and other lawful people, shall go to the place, and there enquire, &c. 23 Assis. 7. If he goes with a Coroner onely where there are more, it is not good; and the same Law is, if he take not others with him: according to the 26 Ed. 3. 57.

The Rate is onely for a Shepherd having care of fourty Sheep and 4 above, and does not alledg that the Defendant had keeping of fourty Sheep and above: so that it may be he had but twenty or thirty, and then there is no rate for such wages.

It is alledged that the Rates were ingrossed in Parchment accord­ing 5 [Page 120] to the Statute, but there is no place alledged, and therefore it is issuable.

Judgment.And after, scil. Hillar. 16 Jacob. Iudgment was given for the Plaintiff by all the Court.

Trinit. 14 Jacob. The King and Richard Parker a­gainst Sir John Webb and Katherin his wife.

RIchard Parker, as well for the King as himself, did inform against Sir John Webb and Katherin his wife, the which Katherin the 18 of May, 13 Jacob. was eighteen years of age and above, and was Wife of the said Sir John; the which said Katherin the said 18 of May, and always after until now, being an Inhabitant at North-Charford in the County of Southampton from the said 18 of May until the 18 of May, 14 Jacob. viz. for the space of twelve months, did not come to the aforesaid Parish Church, nor to any other Church, Chappel, or usual place of Common Prayer, and did not there remain at the time of Common Prayer and Divine Service; but for all the said time did voluntarily and obstinately, without any reasonable cause, abstain from the same, contrary to the form of the Statute, whereby an Action accrued to the King and the Informer, to have of the said Sir John and Katherin 240 l. (scil.) 20 l. for every month, &c. whereof the Infor­mer prays a moyety, &c.

The Defendants said, that the said Statute was made the 16 of Jan. 23 of Elizab. and that after the making thereof, viz in the Parlia­ment held the 29 Octob. 28 Elizab. it was enacted, That every Of­fendant, in not repairing to Divine Service contrary to the Statute of the 23 of Elizab. who thereupon shall happen to be convicted, shall pay into the receit of the Exchequer according to the rate of 20 l. for every month, which shall be contained in the Indictment whereupon such conviction was had, and also for every month after such conviction, without any other Indictment or Conviction, shall pay into the said Exchequer, at Easter and Michaelmas, so much as shall then remain un­payd, according to the rate of 50 l. for every month after such convicti­on: and if default shall be made in any such payment, that the Queen may by Proces out of the Exchequer, take, seise, and enjoy all the goods, and two parts as well of the Lands, Tenements, and Heredi­taments, Leases and Farms of such Offendor, as of all other Lands, Tenements, and Hereditaments liable to such seisures or penalties, leaving a third part onely of the said Lands, Leases and Farms, for the relief of such Offendor, his Wife, Children, and Family. And, for the more speedy conviction of such Offendors, it was enacted, That upon the Indictment of such Offendor, proclamation shall be made at the Assises, or Gaol-delivery, where such Indictment shall be made, whereby it shall be commanded that the body of such Offendor shall be rendered to the Sheriff of the same County before the next Assises and Gaol-delivery, and if such Offender does not appear at the said next Assises and Gaol-delivery, that then upon such default recorded, the same shall be sufficient conviction of such Offendor, as if a Tryal by Verdict had been had and recorded.

And the Defendants further said, that the 19 of March, the first of King James, the Iustices of Assise and Gaol-delivery at the Assises, and the Iustices of Peace at the Quarter Sessions, have authority to [Page 121] enquire and determine of all Recusants, as well for not receiving the Communion, as for not repairing to Church according to the form of the Lawes, in such manner and form as the Iustices of Assises and Gaol-delivery may do, and also shall have power to make proclamation whereby a Precept shall be had for the rendring the body of the Offen­der to the Sheriff, before the next Assises or Gaol-delivery, or the next quarter Sessions, &c.

And they said, that before the Information, viz. at the Assises and Gaol-delivery held at Westminster, 8. August 12 Jac. before Sir Henry Hobard chief Iustice of the Bench, and Sir Laurence Tanfeild chief Baron of the Exchequer, Iustices of Assise and Gaol-delivery in the County of Southampton, the said Katherine (by the Oath of Robert Pawlet Esquire, &c. scil. nineteen in all) which were sworn and char­ged to enquire for the King and the body of the County) was indicted, for that the said Katherine the first of April, 11 Jac. was of sixteen years of ago, and did not repair to the Parish Church of Porthchalford, nor to any other Church, Chappell, or usuall place of Common Prayer, and was there at the Common Prayer and Divine Service, at any time within one month next ensuing the said first of April, 11 Jac. but did abstain from the same from the said first of April for amonth, contrary to the form of divers Statutes, &c. upon which Indictment at the said Assises and Gaol-delivery, publick Proclamation was made that the said Katherine should render her body at the next Assises and Gaol-delivery, to render to the King according to the Statute, &c. at which next Assises and Gaol-delivery, the sixth of March, 12 Jac. before the said Iustices the said Katherine did not render her body according to the said Proclamation, nor appear upon Record, whereupon the said Katherine of the Premisses whereof she was indicted, was lawfully con­victed, and yet stands convicted according to the Statute: And the Defendants further said, that they the aforesaid Term of Easter next after the conviction aforesaid, the said Katherine did not pay, nor any of them did pay into the Exchequer, according to the rate of twenty pounds for every week contained in the said Indictment, nor did after the con­viction in the said Exchequer, so much as then did remain not payd, ac­cording to the rate of twenty pounds for every month after such convi­ction, but thereof made default, which conviction afterwards, viz. in the Term of S. Michael then next after the conviction as aforesaid, by the said Sir Henry Hubbert and Laurence Tanfeild, Iustices, &c. was extreated and certified into the Exchequer, and so there did remain ac­cording to the form of the Statute, &c. and the said conviction yet does remain in full force, and this they are ready to aver, with that also that the said Katherine named in the Information, and the said Katherine named in the Indictment, are one and the same person.

Vpon which Plea Mr. Attorney demurred in Law, and the Defen­dants did joyn.

And I conceive that Iudgment ought to be given for the King, and the Informer against the Defendants.

In which, first it is to be considered, that neither the Statute of 28 Eliz. nor the Statute 35 Eliz. which give severall remedies to the King for the monthly forfeiture of twenty pounds given by the 23 Eliz. doe not restrain the Informer, but that notwithstanding those Sta­tutes, any one may inform against any Recusant, for not repairing to Church, against the Statute of 23 Eliz. unlesse the King hath first ta­ken his remedie against him for the same offence, for that was ad­judged [Page 122] by all the Court in Dr. Fosters Case, 11 Rep. And as I beleive this will be granted and by the Defendants Councell, so I will agree with them, that if the Recusant be once convicted, and punisht at the suit of the King, he shall not be punisht for the same offence again, at the suit of the Informer, or otherwise, for it is unjust to punish an Of­fender twice for one Crime.

And therefore the chief matter to be considered in this Case, is the nature and force of this conviction against the wife, and whether it be such a conviction as will bar the Informer of his Information, or not.

And as to that, first, the woman is indicted here of Recusancy, and proclaimed according to the Statute of 28 Eliz. and she did not render her body whereby she is convicted by this Statute, but this conviction is not any Iudgment, for the true words of the Statute are, That if the party indicted shall not appear, but make default after such Proclama­tion, that then upon such default recorded, this shall be a sufficient conviction in Law of such Offender, as if a Tryall by Verdict had been had and recorded, so that such default of appearance is made equivalent to a Verdict by that Statute, but not to a Iudgment, so that now it is to be understood, that the woman in this Case is convicted by Verdict of Recusancy, but no Iudgment is given. And I conceive that such conviction is no Bar to the Informer.

For that this is a fruitlesse conviction and such a one, as the King can take no advantage of, and every conviction that shall make a dis­charge to the person convicted, ought to be a legall and absolute con­viction, and such a one as thereby the party convicted may suffer the penalty imposed by the Law for such offence.

And that the King can have no benefit of this conviction is apparent, for the remedy given to him by the 28 Eliz. for the penalty is to seise all the Goods, and two parts of the Lands and Leases of the Recusant, but the woman here being married hath no Lands or Goods, and therefore the King cannot have any thing, and the Goods or Lands of her Hus­band cannot be taken for his wifes offence, she being convicted by In­dictment only, to which the husband is no party.

Object. But it may be objected that the wife may perhaps survive the hus­band, and then she may have Goods and Lands, and the King may seise them.

I answer, that first, it may be also that the husband may survive, and then the King shall never have any thing, Answer. as it is resolved in Dr. Fo­sters Case. 2. This Objection is upon two possibilities; 1. That the husband may first dye. 2. That the wife then shall have Lands and Goods: And I have alwaies taken it for a Rule, that a possibility shall never take away a present Action or Suit as is proved by di­vers Cases, as in 5. Rep. Harisons Case, and 9. Rep. fol. 108. 109.

And as it is said in Elmers Case 5. Rep. that two possibilities cannot maintain hospitality or repair a Churche, so I say in this case, that one such possibility to recover this penalty for the King, cannot hinder the Informer of his Suit, nor oppose the good reformation of Recu­sants intended by the Statute, for then all marryed women addicted to Popery will be Recusants upon confidence, that if they be once con­victed by Indictment (the which they themselves may procure to be done) then they shall not be subject to any penalty during the lives of their husbands, who peradventure may survive them, and as it was well observed in Dr. Fosters Case, that married women are the most [Page 123] dangerous Recusants, because that they have the education of their Children and the government of their Servants.

But it may be objected, Object. that if the Informer may sue and recover against the husband and wife, then if the wife does survive, the King shall have these Lands, and goods according to the 28 Eliz. or may sue the husband and wife, according to the 35 Eliz. for these penalties, and so shall be two waies punished for the same offence.

No such inconvenience can happen, Answer. for as it is resolved in Dr. Fosters Case, the recovery of the Informer being legall shall bar the King, as in the 19 Ed. 2. where the Testator was bound in a Recognizance for performing of Covenants, this was no bar in debt upon an Obliga­tion, but that the Plaintiff may recover, and if after such recovery the Statute be forfeited, and execution thereupon, the Executor shall have an Audita Querela, for that he had lawfully administred the goods before for payment of the Bonds.

And after, viz. Mich. 17 Jac. I moved the Court that the Plea of the Defendants was insufficient, for that the Statute did ordain that upon every Indictment of Recusancy, proclamation should be made, and that the body of the Offender should be rendred to the Sheriff of the County before the next Assises or Gaol-delivery, and if such Offender so proclaimed, does not appear but makes default, that he shall be con­victed, &c. And the Defendants have pleaded, that Proclamation was made, that the body of the said Katherine should be rendred at the next Assises or Gaol-delivery, &c. and therefore she is not convict at all, because she was not proclaimed according to the Statute for this Pro­clamation differs in two materiall circumstances from the form pre­scribed by the Statute; first, in omission of the Sheriff to whom the body is to be rendred. 2. In the time for the Statute limits it to be done before the next Assises, &c. but this Proclamation gives a larger time (scil.) at the Assises.

Whereupon all the Court agreed that the Plea was insufficient for the causes aforesaid, and that now the wife was not convicted by pro­clamation.

Wherefore IudgmentJudgment. was given for the King and the Informer.

John Mitton Administrator of George Mitton, of Goods not Administred by Alice Mitton, against John By.

IN an Action of Debt for twenty five pounds, for that William Marquess of Winchester, the twentieth of October, 30 Eliz, by Indenture did de­vise to John By the Father of the Defendant, three parts of the Mannor of Newnham in the County of Southampton, excepting all Fines, Reliefs, Amerciaments, Courts, Woods, Copies, Fishings, and Royalties. Ha­bendum from Michaelmas next for one and twenty years, rendring six shillings ten pence Rent, at the Annunciation, and Michaelmas.

The twentieth of January 1. Jac. John By the Father made his Will, and made the Defendant his Executor and died possessed.

The fourteenth of Novemb. 2 Jacob. the Defendant granted the Term to the Intestate.

The sixteenth of Novemb. 2 Jac. The Intestate did grant all the Term by Indenture to the Defendant, rendring fifty nine pounds Rent at the [Page 124] Annunciation and Michaelmas, whereby be entred and had possession of the Land: and twenty five pounds of the said Rent for half a year ending at Michaelmas, 15 Jacob. was behinde to the Plaintiff after the death of the Intestate, which yet the Defendant doth not pay, ad dam­num, &c.

The Defendant says, that the Intestate the twenty sixth of June, 5 Jac. did release by Deed to the Defendant, all Actions, Suits, Debts, Duties, from the begining of the world until the day of the date of the said writing.

Whereupon the Plaintiff demurred in Law.

And I conceive that Judgment ought to be given against the Plain­tiff.

For that in Littleton 118. If one doth release to another all Demands, this is the best Release that may be, and shall enure to the most advan­tage of him to whom it is made: For by such Release, all Actions, Reals and Personals, and Appeals and Executions, are gone and extinct: and if a man hath title to enter into any Land, by such Release his title is gone: and 20 Assis. 5. where in an Assise for Rent, a Release of all De­mands was pleaded, and the common Opinion was, that it was good; wherefore the Plaintiff was non-suited: and 5 Edw. 4.42. by Danby: A Release of all Demands by a Lord to his Tenant is a good bar and ex­tinguishment of his Seigniory; for although no Rent was behinde at the making of the Release, yet is the Rent always in Demand: and 6 H. 7. 15. If the King releaseth all Demands, yet as to him the Inheritance shall not be included: But in case of Rent or right of Entry by a com­mon person, and every thing therein implyed, is gone by such Release: And 14 H. 8. 9. by Pollard: By Release of all Demands the Rent is ex­tinct, for Rent is to be had by Demand; and if one doth determine the means he hath to come by a thing, he doth determine the thing it self: And Litt. 118. If a man hath a Rent-service, or Rent-charge, or Com­mon of Pasture, by such Release of all Demands, all is gone from the Land from whence the Service or Rent is issuing, or the Common of Pasture: But if one lets Land to another for a year, rendering forty shillings Rent at Michaelmas, and before the Feast does release to the Lessee all Actions, yet after the Feast he shall have an Action of Debt for non-payment of the forty shillings notwithstanding the Release. And 40 of Ed. 3. 48. Hillary: By such Release to the Conusor of a Statute-Merchant before the day of payment, the Conusee shall be barred of his Action, because that the Duty is always in demand: yet if he release all his right in the Land, it is no Bar: 25 Assis. 7. And Althams Case, Cokes Rep. 153. By a Release of all Demands, not onely all Demands, but also all causes of Demands are released. And there are two manners of Demands, viz In Deed, and in Law. In Deed: As in every Praecipe quod reddat, there is an express Demand. In Law: As in every Entry in Land, Distress for Rent, taking and seising of goods, and the like acts in Pais, which may be done without words, are Demands in Law. And as a Release of Suits is more large and beneficial then a Release of Com­plaints or Actions, so a Release of Demands is more large and beneficial then any of them, for by that is released all those things that by the others are released, and more; for thereby all Freeholds and Inheritances are released: as in 34 H. 8. Releases 90. 6. He who does release all De­mands, does exclude himself of all Entries, Actions, and Seisures: And Littl. 170. By the Release of all Demands Warranty is released, and yet that is Executory, and the reason hereof is, that by the Release of De­mands, [Page 125] all the means, remedies, and causes, that any hath to Lands, Tene­ments, Goods or Chattels, are extinct, and by consequence the right and interest in all of them. And in 40 Ed. 3. 22. It is debated there, whether a Release of all Demands by the Lord to the Tenant, to hold onely by Rent and Fealty, shall bar the Lord to demand reasonable ayd to marry his Daughter; but it was agreed there, that such Release shall bar the Lord of his Rent, for as it is there said, that is always in demand. And 13 R. 2. Avowry 89. One gives Land in Tayl to hold by Rent, Homage and Fealty for all Services and Demands, this does discharge the Tenant of Relief, (but 18 Ed. 3. 26. contrarium tenetur.) And 7 Ed. 2. Avowry 211. Suit at a Leet by reason of Residency is not discharged by a Feoffment to hold by Rent for all Services and Demands, for this service is not in respect of the Land, but of residency of the person. And 14 H. 4. 2. Gilbert de Clare, Earl of Glocester, before the Statute of Quia Em­ptores Terrarum, did give Land, parcel of the Honor of Glocester, to hold of him as of the Honor, to hold by Homage, Fealty and Rent for all Services and Demands: And after long argument it was agreed, and hereby the Lord was excluded to have a Fine for alienation, which other­wise was due from every Tenant of the Honor. And as the Fine was dis­charged there by the Feoffment, so it might have been by Release of all Demands.

And the whole Court agreed,Judicium. that by this Release of all Demands the Rent is released, and so the Plaintiff ought to be barred: and so Pasch. 16 Jacob. Judgment was given accordingly.

Hillar. 13 Jacob. Southern against How.

IN an Action on the Case, for that the Defendant the first of April, 5 Jacob. was possest de quibusdam Jocalibus artificialibus & contre­fectis, (Anglice) artificial and counterfeit Iewels, viz. two Carcanets, one pair of Ear-rings, one pair of Pendants, and one Coronet, as of his proper goods: and the Defendant there and then knowing the said Iewels to be artificial and counterfeit, and fraudulently intending to sell them for true and perfect Iewels, there and then did deliver them to one William Sadock his servant, to whom at that time the said Iew­els were known to be counterfeit and artificial, and did command the said William to transport the said Iewels beyond the Seas into Barbary, where the Defendant well knew that the Plaintiff was residing: and did further command the said William, that he should conceal the coun­terfeitness and falsness of the said Iewels, and that after his arrival he should repair to the Plaintiff, and shew him the said Iewels for good and true Iewels, and there require the Plaintiff to sell the said Iewels for good and true Iewels for the Defendant, to the King of Barbary, or to any other that would buy them, and that he should receive a price for them as if they were good and true Iewels.

That the 20 of April, 5 Jacob. the said William did sail from London to Barbary, and there the 22 June, 5 Jacob. arrived, and did then re­pair to the Plaintiff; and knowing the said Iewels to be artificial and counterfeit, did shew them to the Plaintiff for good and true Iewels, and there and then did require the Plaintiff to sell them for good and true Iewels to Mully Sydan then King of Barbary, and there & then did affirm to the Plaintiff, that the said Iewels were worth in value 14400 Dunces of Barbary Mony, amounting to 810 l. of English Mony. And [Page 126] the Plaintiff not suspecting the said Iewels to be counterfeit, but con­ceiving them to be good and true, did receive them of the said William, and afterwards (scil.) the 22 of August, 5 Jacob. did offer them to the said King of Barbary as good and true Iewels, and there and then did procure the said King to buy the said Iewels (not being of the value of 3000 Ounces of Barbary Mony, amounting to 168 l. 15 s. English) for 14400 Ounces of Barbary Mony, amounting to 810 l. which mony the Plaintiff the 22 of August, 5 Jacob. received of the said King for the said Iewels for the Defendant, and did pay the said sum then there to the said William for the Defendant; and the said William, immedi­ately after the receit thereof, did secretly withdraw himself out of Bar­bary, and did return into England to the Defendant with the said sum, and the first of October, 5 Jacob. did pay the same to the Defen­dant.

That the 30 of May, 6 Jac. the said King perceiving the said Iew­els to be counterfeit, caused the Plaintiff to be arrested and imprison­ed for them, and retained him in prison three months, and until the Plaintiff out of his proper goods did repay to the said King the said 14400 Ounces of Barbary Mony.

That the first of October, 6 Jac. the Plaintiff gave notice to the Defendant of the repair of the said William to him, and of all the pre­misses, and requested him to pay to the Plaintiff the said sum, which yet he hath not payd, ad damnum 2000 Marks.

The Defendant pleaded Not guilty.

The Iury found that the first of April, 5 Jac. the Defendant was possest of the said Iewels, and knowing them to be artificial and coun­terfeit, and intending fraudulently, for good and true Iewels did deli­ver them to the said William Sadock, and that it was then well known to the said William that the said Iewels were artificial and counterfeit, and that the Defendant did command the said William that he should transport the said Iewels into Barbary, where he knew the Plaintiff did reside; and did further give authority to the said William to sell the said Iewels to the then King of Barbary, or to any other person that would buy them. And the Iury found that the said William went into Barbary, and there, knowing the said Iewels to be artificial and coun­terfeit, did shew them to the Plaintiff for good and true Iewels, and did request the Plaintiff to sell and utter them to the said Mully Sydan for good and right Iewels for the Defendant, affirming to the Plaintiff that the said Iewels were worth 14400 Ounces of Barbary Mony, a­mounting to 810 l. English Mony, and that the Plaintiff not suspecting the said Iewels to be artificial and counterfeit, but conceiving them to be good and true Iewels, did receive them of the said William, and pre­sented them to be sold to the said King as good and true Iewels, and procured the said King to buy them (not being of the value of 3000 Ounces of Barbary Mony, amounting to 168 l. 15 s. of English Mony) for 14400 Ounces of Barbary Mony, amounting to 810 l. English Mo­ny; and the Plaintiff then and there did receive the said sum of the said King for the said Iewels for the Defendant, and payd the same to the said William, who after the receit thereof immediately conveyed himself out of Barbary to London, and did there pay the said sum to the Defendant: and that afterwards the said King perceiving the said Iewels to be artificial and counterfeit, caused the Plaintiff to be ar­rested and imprisoned, and detained him in prison three months, until he had repayd to the said King the said 14400 Ounces of Barbary Mony [Page 127] for the said Iewels, and that the Plaintiff did give notice to the Defen­dant of all the said premisses, and requested him to repay him the said sum as the Plaintiff had alledged. But they said, that the Defendant did not command the said William that he should conceal the pravity or counterfeiting of the said Iewels, or that he should repair to the Plain­tiff and shew him the said Iewels for good and true Iewel, and to re­quire the Plaintiff to sell or utter the said Iewels to the said King, or other person that would buy them: and that he received the price for them as for good and true Iewels, as by the Declaration is sup­posed.

And if it seem to the Court upon the whole matter, that the Defen­dant is guilty, they found for the Plaintiff, and did assign 642 l. dama­ges, and four Marks costs; and if not, then they found for the Defen­dant.

And I conceive that Iudgment ought to be given against the Plain­tiff, and that this Action does not lie against the Defendant, for four Reasons.

It does appear by the Plaintiffs own Declaration that these Iewels 1 were not counterfeit, but onely of a less value then the mony for which they were sold: for although the plaintiff in his declaration termeth them to be counterfeit Iewels, yet he acknowledgeth them to be worth 168 l. 15 s. or as neer that value as may be; for in as much as he averred them, not to be of the value of 168 l. 15 s. this being his own aver­ment, it shall be taken most strongly against himself (scil.) that they were very near that value; and if they were of that value, it appears to the Court that they could not be counterfeit, although they were not of so great value as was payd for them: And the value and estimation of Iewels is always as the Buyer will account of them and esteem them: as Michaelm. 38 and 39 Elizab. Common Bench: where Da­venport brought an Action on the Case against Sympson, wherein the Plaintiff declared, that he was possest of an Ewer of silver to the va­lue of 500 l. and did give the same to A. to transport beyond Sea, and to sell the same there, and to give an account thereof to him, and that A. had broken it, and converted it to his own use: whereupon the now Plaintiff brought his Action on the Case against A. ad damnum 500 l. whereupon they were at issue, and the Defendant did maliciously de­pose, that it was worth but 180 l. whereupon the Iury gave but 200 l. damages: And adjudged that the Action would not lie, and chiefly be­cause that the value of such things are so uncertain, that some value them higher then others.

Also the Verdict doth vary from the Declaration in three material points: 1. The Defendant doth not direct his Servant to the Plain­tiff. 2. The Defendant did not command him to conceal the counter­feitness of the Iewels. 3. He did not command the Servant to sell them as good Iewels.

No Action on the Case lies, although this fact had been done by the 2 Defendant himself: as 11 Ed. 4. 6. If one sells Clothes, and doth warrant them to be so long, and they are not, an Action on the Case lies; but there ought to be an express warranty, and that ought to be made at the time of the sale, or else no Action lies. And F. N. B. 94 C. If one doth sell a Horse, and warrant him to be sound, and he is not, an Action lies: so if one sells corrupt Wine, and warrants it to be good, an Action lies: but unless he warrant the Horse or Wine to be good, no Action lies; for the Buyer is at his peril, and his eyes and his taste [Page 128] must be his judges in this case: and in 7 H. 4. 14. The Plaintiff de­clared, that the Defendant sold corrupted Wine to him, knowing the same to be corrupted: the Defendant said, that he gave the Plaintiff a taste of the Wine, and that he agreed that it was good Wine, and adjudged the Action would not lie: and 13 H. 4. 1. If one sells a Horse that is blinde, and warrants him to be sound, no Action lies, because I may see whether he be blinde or not; but otherwise, where he hath a disease in his body, which I cannot discern.

Montague. He ought to have shewed that he was legally imprisoned, and compelled to pay the Mony, for otherwise he cannot have an Action: as in 13 H. 4. 6. A diversity in sale of things between those things that are necessary, and not necessary, as Iewels: also the said William was authorized by the Defendant to sell the Iewels, and he cannot au­thorize another; and therefore that which the Plaintiff hath done, was without any warrant from the Defendant.

The Defendant did not require his Servant to conceal the counter­feitness 3 of the said Iewels, nor to request the Plaintiff to sell them, and therefore all that the Servant did to the Plaintiff was of his own voluntary act, for which he must answer, and not his Master; for a Ma­ster shall answer for no acts of his Servant but those which he does by his commandment: as 9 H. 6. 53. by Rolphe: If I have a Servant who is my Merchant, and he goes to the Fair with an unsound Horse, or other Merchandize, and sells them, the Vendee can have no Action against me. Martin. You say true, for you do not command him to sell the Horse to him, nor to no other person in certain. Vide Doctor and Student 138.

4 It does not appear, that the Plaintiff was lawfully indemnified, for it is onely alledged and found, that he was imprisoned by the King un­til, &c. but it is not alledged or found, that this was done by a legal course, or according to the Law of that Country, but onely by the ab­solute power of that King, and therefore the Plaintiff can have no remedy, although there had been a Warranty: as Cook. 5 Rep. Noke and Anders Case: If Lessee for years be outed by a stranger without title, he shall not have an Action of Covenant.

And this Case was argued by Crook for the Plaintiff, and by me for the Defendant, 29 Janua. 15 Jacob. at which time the Court seemed to incline against the Plaintiff: And Trinit. 16 Jacob. The case was argued by Davenport for the Plaintiff, and by Coventry the Kings So­licitor for the Defendant, at which time Montague, Doderidge, and Haughton agreed, that the Action would not lie, and Crook was ab­sent.

Judgment.And afterwards, Michaelm. 16 Jac. Iudgment was given by all the Court: Quod querens nihil capiat per Billam.

Trinit. 15 Jacob. Lingen against Payn.

IN an Action of Debt upon a Bond of 400 l. made the third of October, 12 Jacob. and the Defendant demanded Oyer of the Ob­ligation, and of the Condition; which was, That whereas the Plaintiff had devised to Robert Hawkins the Farm of Williamsthorp in the County of Glocester, until the Feast of St. Michael the Archangel next, if the said Robert, upon the said Feast day, or any time after, upon re­quest made by the Plaintiff, his Heirs, or Assigns, should deliver the [Page 129] possession of the said Farm to the said Plaintiff, his Heirs or Assigns, and permit the said Plaintiff, his Heirs or Assigns, to have and enjoy the same after such request; and also if the said Robert in the mean time shall not give nor sell any Wood, nor commit any waste in the said Farm, that then the Obligation should be voyd.

The Defendant said, that the Plaintiff, or his Assigns,Bar. upon the said Feast, or at any time after, and before the Bill, did not require the said Robert to deliver to the Plaintiff the possession of the said Farm, and that the said Robert, from the time of the making of the said Bond, unto the said Feast, did not give or sell any Wood, nor make any waste upon the premisses.

That the 13 of June, Replication. 12 Jacob. the said Robert being possest of the said Farm, and the Plaintiff being seised in Fee of the Reversion of the said Farm; the Plaintiff, together with John Welford, by Inden­ture made at W. between the Plaintiff and the said John Welford of the one part, and Richard Powle and Henry Powle of the other part, and inrolled in this Court within six weeks, for 1700 l. payd to the Plaintiff, did bargain and sell to the said Richard and Henry Powle the Reversion of the said Farm, habendum to them and their Heirs: And the 30 of Septemb. 13 Jacob. being the next day after the said Feast, the said Richard and Henry Powle, as the Assigns of the said Plaintiff, at the said Farm in W. aforesaid, did request the said Robert to deliver the possession of the said Farm to the said Richard and Henry, which he did refuse.

That the said Richard and Henry Powle did not require the said Ro­bert to deliver to them the possession of the said Farm the said 30 of September, the 13 Jac. upon which they were at issue.Rejoynder.

The Iury found the possession of the said Robert Hawkins, and the seisin of the Plaintiff, and the bargain and sale, and that Henry Powle, 31 Septemb. 13 Jac. did alone come to the capital Messuage of the said Farm, without any notice given before of his coming to the said House, and there then, as Assignee of the Plaintiff, did require the said Robert Hawkins to deliver the possession of the said Farm accord­ing to the effect of the condition aforesaid, and that the possession of the said Farm was not delivered according to the tenor of the said writing; but the possession of the said Farm was kept from the said Richard and Henry Powle. And if it seems to the Court upon this matter, that the said Richard and Henry did require the said Robert to deliver to them the possession of the said Farm, then they found it so, and did assess costs and damages: and if not, they found for the Defendant.

And I conceive that Iudgment ought to be given for the Plain­tiff.

For in Tookers Case, 2 Report, by Popham: Every act made by one Ioynt-tenant for the benefit of him and his companion, shall binde the other, as payment by one discharges the other; and one may pre­judice the other in the profits: as where a Ward does happen to two Ioyn-tenants, and one distrains for the services which is a waver of the Wardship, by 1 Ed. 3. this shall binde the other.

And if two Ioynt-tenants be disseised, and one enters, this is in Law the entry of both, and so it shall be pleaded; for when an act is made by one, the Law shall adjudg this to be made by him in whose right it is made: as in 32 Ed. 3. Bar 264. If one be bound to infeoff another such a day, if he be ready by his Attorny to do it, it is suffici­ent, for the Law takes the act of the Attorny to be the act of the party: [Page 130] and so in the 19 H. 6. 78. to continue an Action: and so in 10 Edw. 2. Dower 130. and 9 Ed. 3. 38. If there be two Ioynt-tenants in Fee, and one seised in right of his Wife, of Land to which the Wife hath title of Dower, the one Ioynt-tenant or the Husband may assign the Dower; and the reason is given, because that when the Husband or one Ioynt-tenant does any thing out of Court that they are com­pellable to make, it shall be intended to be the Deed of the one and the other.

And so, if a Lord by Fealty onely does distrain for Rent, and the Tenant brings a Trespass, and the Lord justifies, because he holds of him by Fealty and Rent, and so justifies the Writ; and the Tenant says, that he does not hold of him moda & forma, &c. and it is found that he holds by fealty onely, yet shall the Plaintiff be barred, for the matter of the issue is, whether the Tenant held of him, or not? for then the Action lies.

And so here, the matter of the issue is, whether a legal request of the delivery of the possession was made or not? and if it were made by the Attorneys of the Bargainees, that in Law shall be taken to be the act of themselves, and so shall be pleaded: and so was it adjudged in this Court, Hillar. 37 Eliz. in Jordans Case: Vide Dyer 354.

Object. But it may be objected, That Hawkins had notice of the Bar­gain and Sale, and therefore the Defendant shall forfeit the Ob­ligation, as in Mallories 5 Rep. and Francis Case, 8 Rep. 92. in an En­try on condition.

Answer. I answer, That the Defendant hath bound himself by the Obliga­tion, that Hawkins should deliver the possession to his Assigns, and therefore he must take notice thereof at his peril: as in 18 Ed. 4. 24. An Obligation upon condition that the Defendant should account be­fore an Auditor to be assigned, when he should be required, and to pay the Arrearages; and it was pleaded, that he did account before such an Auditor assigned by the Plaintiff, and was ready to pay the Arrear­ages, if the Auditor would give notice, &c. and it was held insufficient, for he ought to take notice at his peril: also it is pleaded, and found, that Henry Powle, as Assignee of the Plaintiff, did make the request: and if notice had been material, the Defendant ought to have pleaded, that he had no notice; but by his Plea notice is implyed.

Judgment.And after Iudgment was given for the Plaintiff, by all the Court.

Rot. 459.Michaelm. 15 Jacob. Agard against Wilde and others.

IN an Action on the Case, for that the Plaintiff is and was of good name and fame, and yet the Defendants maliciously intending to cause the Plaintiff to be reputed a Common Barretor, the 27 of No­vember, the 14 Jacob. did falsly and maliciously procure the Plaintiff to be indicted in this Court, that he was a Common Barretor, and a Disturber of the Peace at Edmonton in the County of Middlesex, ad communem disturbationem & inquietationem omnium inhabitantium ibi­dem. To which Indictment the Plaintiff, Jovis post Octab. Hillar. 14 Jac. did plead Not guilty, whereupon issue, &c. and the now Plain­tiff was acquitted by Verdict and Iudgment, to his damage of 500 l. &c.

The said John Wilde said, That at the time of the Indictment he and William Smith were impannelled in the great Inquest for the said County, and then in this Court were sworn to inquire upon their oaths [Page 131] of all Felonies, Trespasses, and misdemeanors done within the said County; and so being sworn, having evidence upon oath of good and loyal men given to the said Defendant and the rest of his Fellow-Iurors. The said John Wilde, and the other Iurors, there and then upon their oaths, for the Indictment mentioned in the Declaration, did indict the Plaintiff for the said Offence mentioned in the said Declara­tion, as they might very well do.

Vpon which Plea the Plaintiff demurred in Law.

And I conceive that Iudgment ought to be given against the Plain­tiff, for in as much as the Defendant was sworn of the Inquest, and he and the other Iurors upon good evidence did indict the Plaintiff, it cannot be presumed that he did this on malice, but it was done in zeal to Iustice by reason of his oath: and although it be true that he and the other Defendants did procure the Plaintiff to be indicted of malice without just cause, yet now the oath of the Defendant hath dis­charged himself of the precedent wrong, as may be proved by many Books: 21 Edw. 3. 17. a. In a Conspiracy for indicting the Plaintiff of Felony, the Defendant pleaded that he was sworn of the Inquest to enquire at the Leet of the Lord Zouch, and that he and the rest of the Iury did indict the Plaintiff upon their oath: and there Thorp said, That Conspirators are always in fault: and when one is of the In­quest, and sworn to speak the truth, that which he saith then is upon his oath, and not of Conspiracy; and there is no reason to accuse one of Conspiracy, where he does nothing.

7 H. 4. 31. In a Conspiracy to procure the Plaintiff to be indicted of a Trespass, the Defendant said, That they were impannelled for the King before the Iustices of Peace in the County of Norfolk, and that which they did was upon their oaths: Iudgment, &c. The Plaintiff replyed, that there was no such Record, and because the Defendants failed of the Record for two days, Iudgment was given for the Plain­tiff. 8 H. 4. 6. The Defendants pleaded that they were indicted: the Plaintiff replyed, that they procured the Sheriff to return them. Gascoigne, There is no question but that the Iurors shall be excused of Conspiracy, by reason of their oaths: Vide 20 H. 6. 5. and 19 H. 6. 19. 4 H. 6. 23. And Nat. Brevium 115. C. and D. it is put for a rule, that a Writ of Conspiracy will not lie against the Indictors themselves, and if Iurors be sworn to enquire, &c. and after some of them be dis­charged by the Iustices, they shall not be punished for any such mat­ter, because it was when they were sworn; but if they conspire after­wards, they may be charged with a Conspiracy. And Stamford 173. if after the Conspiracy the Conspirators are sworn on the Inquest to enquire, &c. and they with the others of the Iury do indict him against whom they do conspire, no Writ of Conspiracy will lie against them, because such thing cannot be intended false or malicious, because they do it on their oaths, and that with others besides themselves. The same Law where after the Conspirators are sworn and have spoken with their companions, they are discharged by the Iustices, yet by rea­son that they were once sworn, and the Conspiracy therefore discharged. And Old Book of Entr. 122. a. In a Writ of Conspiracy to procure the Plaintiff to be indicted of Felony, one of the Defendants plead­ed Not guilty, and the other that he was one of the Indictors, in the same manner as our Plea is, without any Travers, and the Plaintiff re­plyed nul tiel Record, upon which they were at issue, &c. and in the same Book are four other presidents, in all which the same Bars are pleaded. [Page 132] And there is also another president where the same Bar is pleaded; to which the Plaintiff replyed, that the Defendant after the conspiracy of his Covin did procure the Sheriff to impannel and return him to be one of the Iury, to the intent that he should indict the Plaintiff.

Also this Indictment is insufficient in other respects: 1. The con­clusion is, ad communem disturbationem & inquietatem omnium inhabi­tantium ibidem: the which word [ibidem] does refer onely to Edmon­ton, and so there is no common nusance, but particularly to them of that Town. 2. There is no place alledged where he was a common Barretor. 3. The Indictment is, that he was a common Barretor, ita quod verisimilis fuit facere homicidium, lites & discordia, & alia gra­vamina inter vicinos suos apud Edmunton praedict. which is not suffici­ent, for that it ought to be alledged in fact, that he made or caused lites & discordia, and not that he was like to make them.

And if an Indictment be insufficient, although that the party does plead Not guilty and be acquitted, yet he shall not have a Conspiracy or an Action on the Case, for by such Indictment he cannot be in any danger: and 9 Ed. 4. 12. If one be indicted on an insufficient Indict­ment, and he does not take advantage thereof, but pleads not guilty, and is acquitted, and brings a Writ of Conspiracy, the Defendants may show how that the Indictment was insufficient, so that the Plain­tiff was not duly arraigned, and they shall have advantage thereof: Vide Cook. 4 Rep. Vaux Case. And 34 H. 6. 9. If the party indicted be misnamed, and be acquitted, he shall not have a Conspiracy because the Indictment was voyd as to him. And Dyer 286. If the offence in the Indictment be pardoned by a general pardon, and yet the party pleads Not guilty, and is acquitted, he shall not have a Conspiracy be­cause he was in no jeopardy.

And this Case being moved by Chilborn Serjeant, and George Crook for the Plaintiff, the fourth of February, 15 Jacob. I shewed to the Court, that the Plea was good, for the reasons and authorities afore cited, and also that the Indictment was insufficient for the Rea­sons afore shewed.

Judgment.And therefore Iudgment was given: Quod querens nihil caperet per Billam.

Michaelmas, 15 Jacob.Thomas Muschamp Knight, and Margaret his wife, and Thomas Lock Esq; and Jane his wife a­gainst Colan Bluet, Michael Sampson, Edward Jenny and Elizabeth his wife.

In the Ex­chequer.IN an Action of Trespass, for that the Defendants the first of Janua­ry, 14 Jacob. by force and arms the Close of the Plaintiff at Tot­tenham did break and enter, & possessionem tenementorum praedict. a praedicto primo Januarii usque diem billae (scil.) 20 Maii, 15 Jacob. ha­buerunt, tenuerunt & custodierunt ad damnum 40 l. Quo minus, &c.

The Defendants pleaded Not guilty.

The Iury found, that before the Trespass Sir William Lock Knight was seised in Fee of the said Tenements, and held them in Socage, and that he and Matthew Lock his son were Ioynt-tenants in Fee of other Copyhold Lands in Tottenham, and that he had issue Thomas, Matthew, John, Henry, and Michael.

That the 15 Martii, 1549. Sir William made his Will in writing, and thereby did devise these Tenements to Henry and Michael in these words:

I give to Thomas, Matthew, Iohn, Henry, and Michael, my five Sons, my dwelling House in Bow-lane, and my House at the Lock in Cheap, and my House at the Bell in Cheap, to the intent that they or some of them may dwell in them, and keep the Retaining Shop still in my name to continue there.

Item, I give to Iohn Lock my House that Paris dwelleth in.

I give to Henry Lock my House that Iohn Edwards dwelleth in.

I give to Michael Lock the three Houses wherein W. B. and P. dwell.

I give to Henry Lock the House that Kew dwelleth in.

I give to Matthew Lock the two Houses wherein S. and T. dwell.

I give to Henry and Michael Lock all my Houses in the Poultry, Bucklersbury, and St. Iohns, and a House that Goodman dwell­eth in.

I give to Matthew Lock all my Houses at Dowgate and in the Vintry.

I give to Thomas Lock all my Houses in Cheap lying in St. Peters Parish.

I give to Thomas Lock my Land at Martin and Wimbleton, that I may give him, except one Farm called Martin Holts, which I give to Henry and Michael Lock.

I give to all my five Sons the half of the Leg Entry which I pur­chased of late.

And as touching my Lands at Tottenham, my Son Matthew is joyned Purchaser with me of the most, and the rest of all my Houses and Land there which is Freehold, I give to Henry and Michael Lock, upon this condition, that if they shall sell it to any man but to Matthew Lock my Son, then he to enter upon it, as of my Gift, by this my Will.

Item, All the Houses and Lands that I have given joyntly betwixt my Sons, is, That they shall bear part and part-like, going out of all my Houses and Lands, upon my Blessing, as well Freehold as Copyhold, to pay to my Wife Elizabeth for Dowry 40 l. every year, during her life, out of all my Lands and Houses, as well Copyhold as Freehold; for which Sum I am bound, as appeareth by certain Indentures, &c. and which of my Sons refuseth to bear his part of the aforesaid Sum of 40 l. I will that he or they shall enjoy no part of my Bequest by me to them given in this my Will, but my Gift given to him o [...] them to go to the rest of my well-willing Sons which be content to fulfil this my Will and Bond that I am bound in to be performed.

Sir William Lock dyed seised, and Elizabeth his Wife did survive him.

Henry and Michael did enter into the said Tenements, and payd their parts of the said 40 l. to the said Elizabeth: Henry dyes, and Michael payd his part of the said 40 l.

Thomas Lock was Son and Heir of the said Sir William, and had issue Matthew Lock his Son and Heir, and dyes.

Matthew, the Son of Thomas, deviseth the said Tenements to the Plaintiffs, habendum from the death of the said Michael for seven years.

The 28 of July, 15 Jacob. Michael Lock dyed seised of the said Te­nements.

And the said Colan Bluet, Michael Sampson, and Elizabeth Jenny the Defendants, are the next Heirs of the said Michael; and that the said Bluet, Sampson, and Jenny, in the right of the said Elizabeth his Wife, after the death of the said Michael Lock, did enter, upon whom the Plaintiffs did enter, upon whom the Defendants re-entred, and made the Trespass.

But whether the Entry of the Plaintiffs was legal or not, the Iury did doubt: and if legal, they found for the Plaintiff, if not, for the De­fendants.

And I conceive that Iudgment ought to be given for the Plaintiffs, for I conceive that Henry and Michael Lo [...]k had but an Estate for their lives by this Devise, which by their deaths is ended, so that nothing can descend to the Heirs of Michael being the survivor, and by conse­quence the Lease made to the Plaintiffs by Matthew Lock the Heir of the Devisor, is good, and the Entry of the Plaintiffs is lawful.

The Case.And the Case upon the whole matter I conceive to be this:

Sir William Lock being seised of certain Land in Fee, and being Ioynt-tenant with Matthew Lock, one of his Sons, of Copyhold Land within the same Town, had issue Henry, Michael, Thomas, and two other Sons, and by his Will did devise to his Sons divers Lands se­verally: And after says, Touching my Lands at T. my Son Matthew is joyned Purchaser with me already of the most, and the rest of all my Land there, which is Freehold, I give to Henry and Michael, upon con­dition, that if they sell it to any but to Matthew my Son, then he to en­ter as of my Gift: and then he declares, That of all these Bequests his Sons shall bear part and part-like, out of all his Copyhold Lands and Free, to pay to Elizabeth his wife for her Dowry 40 l. a year during her life; and that Son which shall refuse to bear his part, shall not enjoy any part of his Bequest, but it shall be to the residue, &c. Sir William Lock dyes, Henry and Michael enter, and pay their parts of the 40 l. Hen­ry dyes, and then Michael dyes: And now the Question is, Whether the Defendants, being Heirs of Michael, shall have the Land, or the Plaintiffs, who claim under the Devisor?

And for the better arguing of this Case: I will first observe, that here is not any express words of limitation of an Estate, to make any greater Estate to pass then an Estate for life: and then I will shew, that here are no words in any part of this Will to signifie any certain intention in the Devisor to make an Estate of Inheritance to pass by this Devise.

And as to the first, the Devise is onely to his two sons: viz. The rest of all my Houses and Lands there, which is Freehold, I give to Hen­ry and Michael Lock: and these are all the words of limitation of the Estate; and these, without question, in a Deed or Feoffment, will not make a greater Estate then for life. And so is Littleton 1. If one purchase Land in perpetuum, or to him and his Assigns in perpetuum, this is but an Estate for life, because it wants these words, his Heirs, which words make the Inheritance in all Feoffments and Grants; and this is an infallible Rule in Grants, unless it be in some special Cases, as in Frankmarriage or Frankalmoine, which being words of art, do pass an Inheritance with these words, Heirs.

And in Cases of Grants, no intention of the Grantor, although it be apparent in the Grant, will make an estate of Inheritance to pass: as in 19 H. 6. 73. 20 H. 6. 36. A Gift to B. and C. & haeredibus, with War­ranty to them and their Heirs, is no Fee-simple, because the words [Page 135] of limitation are incertain to whom haeredibus shall be referred, and so all one as if it were omitted: and then the clause of Warranty, al­though it does declare a certain intent to give an Estate in Fee, will not amend the matter in a Grant. And so in the 1 Rep. Shelleys Case: if one gives Land to one, & liberis, or eitibus suis, or semini suo, it is but an Estate for life, and not an Estate in Tayl, yet there is an ap­parent intent, but that will not suffice in a Grant.

But I agree, that in Case of a Devise, although the apt words to make an Estate of Inheritance to pass are omitted, yet if the intent of the Devisor does appear by any express matter contained in the Will, an Estate of Inheritance shall pass, for it is sufficient to pass the Inheritance. And so Litt. 133. 6. 19 H. 8. 9. 6. If one deviseth Land to another in perpetuum, the Devise by these words shall bar an Estate in Fee: so if one devise Land to another, to give, dispose, or sell at his pleasure, this is an Estate in Fee-simple: 19 H. 8. 9. 6. 7 Edw. 6. B.

But yet the Law hath restrained such intent.

For first, it ought to be agreeable to Law, and not repugnant to it; 1 for although in Scholasticas Case, in the Comment. it is said, that a Will is like to an Act of Parliament, yet a Will cannot alter the Law, or make a new form of an Estate, which is not allowed by the Rules of Law, as an Act of Parliament is: and so adjudged in the Common Bench, Hillar. 37 Eliz. between Jermin and Ascot, Cooks 1 Rep. 85. in Corbets Case: That by a Devise a man cannot give an Estate, and determine part thereof by a condition, and make the re­sidue to continue. And if Land be devised to one in Tayl, he cannot determine the Estate as to the Devisee himself, and yet preserve the Estate to the issue: as was endeavoured in this Case.

And 28 and 29 H. 8. Dyer 33. If Land be devised to one in Fee, and if he does not perform such an Act, the Land shall remain to an­other, the remainder is voyd, for no such remainder can be limited by the Rules of Law.

This intent ought to be exprest in the Will, and collected out of 2 the words of the Will, and cannot be averred or supplyed by any for­reign matter, as in Matthew Mannings Case, 8 Rep. 95. 6. Always the intention of the Devisor, expressed in his Will, is the best Expositor, Director, and Disposer of his words. And Lord Cheyreys Case, 5 Rep. 68. Sir Thomas Cheyrey devised certain Land to Henry his Son, and the Heirs males of his body, the remainder to Thomas Cheyrey of Woodley, and the Heirs males of his body, upon condition, That he or they or any of them shall not alien: and the Question was, whether there could be an averment, that the intent of the Devisor was to re­strain H. and his Heirs from aliening? and resolved that no such aver­ment could be received, for construction of Wills ought to be collected out of the words of the Will.

The intent of the Devisor ought to be manifest and certain, and not 3 dubious, as in a Devise of Land to one for ever, here the intent is to give an Estate in Fee-simple, for no other Estate can continue for ever: so if the devise be to one and his Heirs, and if he dyes without Heir, that it shall remain to another, his intent [...]y t [...]ars, that the word His in the first Devise shall be taken for the Heirs of his body; for the Law will sooner presume him to be dead without issue, then to be dead without Heir.

And now to examine our Case with the Rules of Law: There are three clauses in this Will, as I conceive, upon which the pretences of the Defendants are founded to have an Estate in Fee pass by this Devise, to which I shall make answer severally.

1 The precedent clause to the Devise: And as touching my Lands at T. my Son Matthew is joyned Purchaser with me of the most, and the rest of all my Houses and Lands there, which is Freehold, I give to Henry and Michael Lock, &c. And as to this, I conceive that here is no colour to enlarge the Estate to the Devisees, but this clause is onely a description of Land which he does not intend to devise, and which in truth he cannot devise, because that Matthew ought to have it by survi­vor, and is principally named therein, because of preventing any que­stion between Matthew and the two Devisees after his death; for otherwise they might perhaps have pretended that all the Land in T. should pass to them especially, because they were purchased as it might, very well be presumed, with the mony of the Devisor, and he was re­puted owner thereof, but these words make no Declaration as to the Estate which he intends to demise to Henry and Michael.

2 The Condition or limitation annexed to the Devise, in these words: Upon condition, that if they sell it to any man but to Matthew Lock my Son, then he to enter upon it as of my gift, by this my Will: and I conceive that this clause does not shew any intent of the Devisor to en­large the Estate first limited to Henry and Michael, or to give an Estate in Fee to them; for it is not if they alien in Fee or in Tail, or if they or their Heirs do alien, which words, or any words to such intent, would have declared a manifest intention that the Devisees should have a Fee-simple: but here an alienation in general onely is restrained, which ought to be taken for a legal alienation, and such a one as they may make by reason of the Estate devised to them.

And that it shall be so intended, first, it is to be considered, that this condition is a restraint annexed to the Estate, and is as a Convinct to the Estate, and therefore cannot be properly more large then the Estate it self: for it is a Rule, that every restraint or exception in an Assu­rance ought to operate upon the Estate, or the thing before granted: as in the Comment. 370. Zouches Case: An exception is an exemption of that contained in the general words, and if it be not contained in the generality, it can be no exception in the specialty, and therefore if one doth lease W. acre, excepting B. acre, the exception is vain.

3 This exception of alienation is more proper to be annexed to an E­state for life, then in fee; for he who makes a Lease for life or years, may restrain the Lessee by condition, that he shall not alien, but the Feoffor cannot restrain the Feoffe from aliening: as in Littleton 84. If a Feoffment be made on condition that the Feoffee shall not alien, the Condition is voyd, for the Feoffee hath power to alien to whom he will, for if that condition were good, that would take from him the power which the Law gives him, which would be against Reason: but if the Condition be, that he shall not alien to such a person, naming the person, or any of his Heirs or his issues, this is a good Condition, because it take not away the power to alien in Fee. And Vernons Case, 4 Rep. fo [...] 3. An Estate in Fee, conveyed by the Husband or his Ancestor to a woman for her Ioynture, is not a Ioynture within the Statute of 11 H. 7. which restrains alienations made by women: for to restrain such an Estate as cannot be aliened, is repugnant and [Page 137] against the Rule of Law, and therefore not within the intention of the Act.

But it hath been objected on the other side; 1. Object. That this Condition is not voyd, because it doth not restrain all their power, but leaves them to the liberty to alien to Matthew. 2. If the condition be voyd, yet it is sufficient to declare the intent of the Devisor that a Fee should pass.

And as to the first, I conceive that the condition is voyd; Answer. for to re­strain generally, and that he shall not alien to any but to J. S. is all one: for then the Feoffor may restrain him from aliening to any ex­cept to himself, or such other person by name, whom he may well know cannot, nor never will, purchase the Land: So that this condition shall take away all his power, and shall make a perpetuity in the Feoffee, which is quite contrary to Law, neither is there any authority to war­rant this restraint: for Littleton leaves the Feoffee at liberty to alien to any, except to such a one in particular.

And as to the second, I do agree, That if the condition to restrain the alienation had been expresly to restrain the Devisees and their Heirs, or to have restrained from aliening in Fee or in Tayl, or for anothers life, although the condition had been voyd, yet had it been sufficient to have shewn the intent of the Devisor, and to have caused an Estate in Fee to have passed. And therefore I do agree to the case in the 9 Rep. fol. 127. where one devised to his Wife for life, and after her decease his Son William to have it, and if William shall have issue male, that he shall have it, and if he have not issue male, his Son S. shall have it, and if he hath issue male, his Son shall have it, with like Remainders to his other Sons; and my Will is, If any of my Sons, or their Heirs males, issues of their bodies, alien, then the next Heir to enter, &c. And it was resolved, That the Son should have an Estate in Tayl by this Devise: First, by reason of these words, If he have no issue male, which is as much as to say, i [...] he dye without issue male. Secondly, because he and his Heirs males are restrained to alien: for every restraint (especially in Wills) does imply, that the party, in case he were not restrained, had power of the thing re­strained. And so Bakers Case, Hillary 42 Eliz. Rot. 143. A Devise to the Husband and Wife, the Remainder to their two Sons, upon con­dition, that if they or their Heirs go about to alien, &c. is a Fee-simple also; for the Heirs being restrained to alien, does shew fully, that the Heir shall have the L [...]nd, for otherwise he cannot alien it.

But here in our condition, there are not any words to shew the in­tent of the Devisor, that an Estate in Fee shall pass, but the Devisees are restrained to alien generally, which, as already I have shewed, is more agreeable to an Estate for life, then an Estate in Fee-simple, at the least he does not shew any certain intent, that the Devisees shall have an Estate in Fee, but that remains dubious, and therefore the safe way is to take the same according to the Rules of Law.

The third clause to explain the intent of the Devisor in this case is the clause of the Charge imposed upon the Land by the Devisor, viz. Item, All the Lands I have given joyntly betwixt my Sons, is, that they shall bear part and part-like, going out of all my Lands, as well Free as Copyhold, to pay to my Wife Elizabeth for Dowry 40 l. every year during her life out of all my Lands, &c. And I conceive, that this [Page 138] clause makes nothing as to the enlargement of the Estate; and yet I do agree,29 H. 8. Te­stament 18. 4 Ed. 6. Estates 78. That if one devise Land to another, paying 20 l. or another sum in gross, this is a good Devise in Fee; but it is otherwise when the Land is devised to one paying an annual Rent, or bearing an an­nual charge with the profits thereof: as in Colliers Case, 6 Rep. where one devised Land to his Wife, and with the profits that she should bring up his Daughter, and that after her death the Estate should re­main to his Brother, paying to other persons 40 s. and the value of the Land was 3 l. per annum; and agreed there, that the Brother had a Fee-simple: and this diversity was resolved in that case, That if the Devise had been to the Brother, to the intent that he should main­tain his Daughter with the profits, or pay out of the profits thereof so much to one, and so much to another, that this is but an Estate for life, for he is sure to have no loss; so is it, if it be to pay certain sums yearly under the value of the Land, for he may pay it out of the pro­fits, and is sure to be no loser. And this is in effect our very case: For first, the Charge is imposed for Dower, which cannot be intended to exceed the annual value of the Land: Secondly, it is to be payd out of the Land, and therefore there is no charge imposed upon the person of the Devisee, but onely upon the Land devised to him, so that he takes the Land with this charge, and when his Estate determines in the Land, yet the charge does always remain upon the Land, and the Devisee is discharged thereof; and therefore this charge may as well be, if he have an Estate for life, as if he have a Fee-simple. And as to that in Borastons Case, 3 Rep. fo. 20. b. between W. Allock and Ham­mond, where a Copyholder devised his Land, paying to his Daughter and to each of his younger Sons 40 s. within two years after his death, and surrendered accordingly, and dyed; and agreed, that the Devisee had an Estate in Fee, although the annual profits exceeded the mony that was to be payd; and the Reason is plain, for it is not limited to be payd out of [...]e Land or profits, but is a payment in gross, and it may happen that the Devisee may dye before he can receive so much of the profits.

And afterwards, viz. Trinit. 17 Jacob. All the Barons, (scil.) Tanfield, Bromley, and Denham, delivered their Opinions severally, That Henry and Michael Lock had an Estate onely for their lives, be­cause there is no express words in the Devise to make any greater E­state to pass; and the condition or clause of the charge imposed by the Wtill, does not necessarily imply, that they should have a greater E­stae then for life, for such Estate may satisfie both these clauses, as well as an Estate in Fee, and the condition is more proper to be annext to an Estate for life, then in Fee.

Judgment.Wherefore they resolved, That Iudgment should be given for the Plaintiffs: but because Sir Thomas Muschamp, one of the Plaintiffs, dyed, hanging the Action, no Iudgment could be enter'd.

Trinit. 16 Jacob. Wood against Searl and Jeo.

IN an Action of Trespass, for that the Defendants the 16 of De­cember, 15 Jacob. ten Hides of Leather of the Plaintiffs, amount­ing to the value of 10 l. at Tiverton, did take and carry away, ad dam­num 20 l. &c.

The Defendants as to the force and arms pleaded Not guilty, and as to the residue they said, that the City of Exeter is, and time out of minde was an ancient City, and that within the said City there is, and for all the said time was a Society of the Art of Cordwainers, in­corporate, by the name of The Master, Assistants, Wardens, and Com­monalty of Cordwainers of the City of Exeter; and that the said Master, Assistants, and Wardens, have used for all the said time to make By­laws for the government and profit of the said Society, and to impose reasonable Fines and punishments upon the breakers thereof.

And that the 24 of July, 44 Elizab. the Master, Assistants and War­dens did ordain, That no person, Burgess, or Foreigner, not being a Brother of the said Society, should make, sell, or offer to sell, or pro­cure to be sold within the aforesaid City of Exon, the County or liberty thereof, any Boots, Shooes, Pantofles, Pumps, or Startops, or any other wares belonging to the said Art, under pain of forfeiting to the said Ma­ster and Wardens for the time being, for every offence such sum (not ex­ceeding 40 s.) as shall be assessed by the Master, Wardens and Assist­ants, or the greater part of them: and that if any person of the said Society, or any other exercising the said Art, or any thing concerning the same, inhabiting within the said City, or the County or liberty of the same, who shall break the said Order, shall refuse to pay such sum as shall be assessed, upon true proof first thereof had of the breach of the said Order, that it shall be lawful for the said Master, Assistants and Wardens, or any three of them, taking with them a Constable, Bayliff, or Serjeant of the Mace, or other fit Officer of the Kings, to enter in­to the House, Booth, Shop, Warehouse, or Cellar of such person so re­fusing, and there, by the discretion of the said Master, Assistants and Wardens, or the greater part of them, to distrain any of their goods then being within the said Houses, &c. for the said sums forfeited, so that it doth not exceed the treble value of the sums forfeited, and to de­tain the same: Yet nevertheless if the owner within thirty days shall sa­tisfie the penalty, then they shall redeliver the goods: And if he doth not satisfie, that then the said Master, Wardens and Assistants, or the greater part of them, have power to appraise the goods taken by the oath of six persons, and thereupon to sell them, and to restore the sur­plussage to the owner.

And the Defendants said, That at the said time in which, &c. and time out of minde, there was and ought to be a Master, two Wardens, and twelve Assistants of the said Society within the said City, and no more; and that the said Edward the sixth of December, and before, and ever since, was Master, and the said William and Thomas Payn were Wardens.

That the 29 of July, 15 Jacob. the Plaintiff at the said City then being an Inhabitant within the said City, and no Brother of the said Society, did make divers Shooes, and them there to sale did expose, and that the said Master and Wardens, and one J. G. T. K. R. J. W. T. [Page 140] K. T. C.G. and J. G. being seven, and the major part of the said As­sistants, the thirtieth of July, the 15 Jacob. did impose upon the Plaintiff 33 s. 4. d. for the said offence.

And they said further, that the Plaintiff committed the like offence the seventh of October, 15 Jacob. and 33 s. 4 d. imposed by the Master, Wardens and Assistants, and the like offence the 20 of Novemb. 15 Jacob. and 33 s. 4 d. imposed by the Master, Wardens, and eight of the Assistants; and the like offence the second of December, 15 Jacob. and 33 s. 4 d. imposed the third of December the same year, by the Master and Wardens, and nine Assistants.

All which sums do amount to 6 l. 13 s. 4 d.

That the sixth of December, the 15 Jacob. the Plaintiff had notice of the said sums so imposed, and although he thereupon payd 19 s. par­cel thereof, yet he did refuse to pay the residue, which refusal the 16 of December was duly proved before the said Master and Wardens: wherefore the 16 of December, 15 Jacob. the Master, Wardens and Assistants, taking with them John Sowland a Serjeant of the Mace, did take the said ten Hides in the said City, in the name of a Distress, and took them away, detained them for thirty days after the said Di­stress: and because the Plaintiff did not pay the residue of the said 6 l. 13 s. 4 d. nor agreed for the same, the said Master and Wardens, and T. B. C. G. M. A. T. K. J. G. M. B. K. J. W. T. and R. T. being the major part of the Assistants, after the said thirty days, viz. 17 Jan. 15 Jacob. at the said City did cause the said Hides to be appraised by the oaths of R. S. &c. six approved men of the said City, who appraised them at 7 l. and the said Defendants, and Thomas Payn, and the major part of the said Assistants, did sell them for 7 l. and they said, that the surplusage amounted to 25 s. 8 d. and no more, which the said Wil­liam and Thomas Payn, with the assent of the Master and greater part of the Assistants, before the Suit, to wit, the seventh of January in the same year, at the said City did offer to pay to the Plaintiff, but he re­fused to accept thereof. Absque hoc, that the Defendants are guilty at Tiverton, or any other place out of the said City of Exeter.

Vpon which Plea the Plaintiff demurred.

And I conceive that Iudgment ought to be given for the Plaintiff.

And herein I will not stand at this time to argue, whether the Cu­stom will warrant this By-law, because there hath been a resolution in the Case in the 8 Rep. fol. 125. for London; onely I observe that the Customs of London are confirmed by Act of Parliament, but so are not the Customs of Exeter.

But admitting that the Custom will warrant this By-law, to re­strain a legal Trade or Art within the said City, yet I conceive this By-law is utterly voyd for three causes; and if it were good, yet have not the Defendants pursued the same, in taking and selling of the goods, and that for two causes.

I And as to the first, the Defendants have exceeded their Custom in the extent of this By-law as to the place, for the Society of the Art is alledged to be within the City of Exeter; and then they alledg the Custom to be, That they have used to make By-laws for the better Go­vernment and profit of the said City; so that all the Custom is confirm­ed to the City: but the By-law does exceed this, for it is, That none shall make, sell, or offer to sell any Shooes, &c. within the City or the County of Exon; the which is not warranted by the Custom: as in 5 Rep. Chamberlain of London's Case, it was ordained, That if any [Page 141] Citizen or stranger should send any Cloth to sell within the City before it shall be brought to Blackwell-Hall to be viewed and searched, this is resolved to be good, although it do binde a stranger: but the reason thereof is given, because the offence is committed within the City; whereupon I observe, that they can make no Order to extend without the City.

This By-law does exceed their power in the things prohibited, and II that in two things: First, That none shall make any Boots, Shooes, &c. 1 within the City or County, whereby every man is restrained to make such things for his own use, or for his Master or Family, and such re­straint is clearly against Law and Reason: for although that Compa­nies of Trades in Cities and Towns are allowed by the Law, yet they cannot by any Custom restrain a man from making any thing pertain­ing to their Art for his private use: and therefore if this By-law had been, That none should use the Art of a Shoomaker within the City, this had been good; but to restrain any, that he may not make Shooes for himself within the City, this is voyd. Vide Cooks 8 Rep. 129. Wagons Case: where it was resolved, That he might make Candles for his own use; and so every one may bake and brew for their own use.

Furthermore, the Defendants have not alledged any Custom, That none shall make any Shooes, &c. within the City, &c. except those of the Society, but onely that they may make By-laws for the good go­vernment and profit of the Society of the Art; and the making of Shooes for ones private use is nothing concerning their Society: and this is proved by the resolution in the said Case, and by the Statute of the fifth of Elizab. That none shall use any Art, in which he hath not been educated as Apprentice for seven years; yet it is lawful for any to bake or brew, or to make any manufacture for his private use, without any offence to the Statute. So Cooks 8 Rep. 125. Sir George Farmers Case: He as Lord of the Mannor of Torcester did prescribe to have a Bakehouse, and no other Baker should sell bread there, this was a good Custom, but to restrain any from baking for himself cannot be a good Custom. And the Case of the Taylors of Ipswich, 11 Rep. fol. 55. Order, That none should use the Trade of a Taylor, until he be presented to the Master and Wardens, and allowed by them; yet one may make Clothes for his Master and Family, in case the said consti­tution were good.

This By-law does restrain other persons to use their Arts; for it is, 2 That none shall do any thing pertaining to the Art of Shoomakers: and it is apparent, that many things do pertain to the Art of a Shoo­maker, which are to be done by other Artificers; for all things be­long to the Art which of necessity must be used with the Art, and with­out which the Art cannot be used; as Leather, which is to be made by the Tanner; Lasts, which are to be made by the Last-maker; Auls, by the Smith; Threed, and divers other things: and all these by this By-law are prohibited, not onely to be sold, but also to be made by any not being of their Society.

The penalty imposed by this By-law, is not warranted by the Law, 3 nor by their Custom, for that ought to be reasonable, and ought to be exprest, to the end that the Court may judg whether it be reasonable or not: and therefore it is resolved in Wagons Case, That the Pain ought to be reasonable, 1. In respect of the manner thereof; and therefore it ought not to be by imprisonment, for that is against Magna [Page 142] Charta, cap. 29. as it was adjudged in Clarks Case, 5 Rep. fol. 64. 2. In regard of the quality: and therefore it is much debated in Wag­ons Case, if the penalty of 5 l. were reasonable or not: but here no certain penalty is set down, but left to the discretion of any of the Shoomakers of Exeter, and that is against the course of all Laws; for when a Law is made, it is necessary that the penalty thereof should be known, to the end men might not offend.

But admitting this Order to be good, yet have not the Defendants pursued the same in the taking of this Distress, and that for two Rea­sons:

I They have distrained before their time, for the Order is, That if any refuse to pay the sum assessed, that then upon due proof thereof they may distrain, &c. and then they plead, that the refusal of the Plaintiff to pay the same, was duly proved before the Master and Wardens, which is insufficient: for when it is said, upon due proof, this is intended upon proof by Verdict: as in 10 Ed. 4. 11. On a Bond with conditi­on, that if the Obligor proves that it was the will of A. that B. shall make an Estate to the Obligor, &c. this proof must be by Verdict: but if it be to be proved before J. S. there it is sufficient to produce wit­nesses that will testifie the same: and so in the fourth and fifth of Queen Mary: where Buckland was bound to the Lord Ewers, to produce before the said Lord sufficient witnesses to discharge a certain debt due by B. to the Lord: and he pleaded, that he produced W. and A. before the said Lord, and that they proved, that he did not ow the said Debt; and agreed to be no good Plea, because he did not shew how the proof was made before the said Lord.

So that this Plea is utterly insufficient, 1. Because no such proof can be made before the Master and Wardens, as is intended by the Order. 2. Because the Defendants have not shewn how the proof was made, so that the Court might judg whether it were sufficient or not: and so in 22 Ed. 4. 40. the Lord Lisles Case: upon a Bond, that if the De­fendant shewed sufficent discharge of a Rent, &c. who pleaded that he did offer to shew a sufficient discharge, and agreed to be no Plea, for he ought to shew what discharge, that the Court might judg thereof.

So in the ninth Report, Case of the Abbot of Strata Marcella, fol. 34. in a Quo Warranto, the Defendant pleaded, that the Abbot had and used divers liberties, which he could not have without a Char­ter, and resolved no Plea, unless by reason of the Statute of the 32 of H. 8. cap. 20. for reviving of Liberties.

II The Order is, That upon refusal to pay the penalty, and upon proof thereof, the Master, &c. may enter into the House, Booth, Shop, Ware­house, or Cellar of the Offendor, and there to distrain any of his goods, &c. And the Defendants have not averred, that these goods were taken in any of the said places, but onely at the City of Exeter.

Judgment.And at last it was adjudged that the Plea was not good.