The Lord Cromwells Case, 20^o of the Queene, fo. 12.

THe Lord Cromwell brought an Action De Scandalis magnatum, against D. Viccar, Tam pro domina regina, quam pro seipso, upon the Statute of 2. R. 2. ca' 5. The Defendant said to the Plaintiffe, It is no marvell though you like not of me, for you like of those that maintaine sedi­tion against the Queenes proceedings, the Defendant ju­stifies specially, that he being Viccar of N. the Plain­tiffe procured I. T. and I. H. for to preach there, who in their Sermons inveyed against the Booke of com­mon prayer, and affirmed it to be superstitious; upon which the Viccar inhibited them, for they had not li­cense nor authority to preach, yet, they proceeded by the incouragement of the Plaintiffe; & the Plain­tiffe said to the Defendant, Thou art a false Varlet I like not of thee, to whom the Defendant said, It is no marvaile though you like not of me, for you like of those (innuendo, the aforesaid I. T. and I. H.) that main­taine sedition (Innuendo seditiosam illam doctrinam) against the Queenes proceedings.

Resolved in this case, that the Statute aforesaid concerning the King, the Judges Ex officio, ought to take notice of it, as they ought of all Statutes that concerne him.

Resolved, that the justification is good, for in case of slaunder, the sence of the words is to be taken, which may appeare by the occasion of speech. Sensus verborum ex causa dicendi accipiendus est, et sermones sem­per accipiendi sunt secundum subjectam materiam. And here the sence of the words appeares, and his mean­ing in speaking them, and that he did not intend any publique or violent sedition, as the word of it selfe imports; and God defend, that the words of one by a strict and grammaticall construction, should be ta­ken contrary to the manifest intent; as in an Action for calling the Plaintiffe murderer, 'tis a good justifi­cation that the Plaintiffe confessing that he had kil­led diverse Haires with Engines, the Defendant said, Thou art a Murderer, and the Defendant shall not be put to a generall issue, when he confesses the words and shewes that they are not actionable, as in main­tainance the Defendant may justifie lawfull maintein­ance, whereupon the Plaintiffe replyed that the De­fendant, dixit, &c. Verba praedict. de iniuria sua propria abs (que) tali causa, upon this they were at issue, and after agreed.

Cutler and Dixons Case, 27. and 28. of the Queene, fo. 14.

IF one exhibite certaine Articles to a Justice of peace, against one, declaring divers great abuses and misdemeanours, &c. to the intent to bind him to the good behaviour, In this case the party accused shall not have any action upon the case, for it is in pursuite of ordinary justice, and if such actions were permitted, none would complayne for feare of infi­nite vexation.

Sir Richard Buckley and Woods Case, 33. and 34. of the Queene, fo. 14.

WOod exhibited a Bill in the Starrechamber a­gainst Sir R. B. and charged him with divers matters examinable there, and with other matters not determinable there, as that he was a maintainer of Pyrates and Murtherers, and a procurer of Pyra­cies, upon which Sir R. B. brought this action, &c. Resolved that no action lyes for matter examinable there, though 'twas meerely false, because that 'twas in course of justice.

Resolved, that an action lyes for these words, not examinable there, for 'tis not done in course of Ju­stice, and great inconvenience would follow, if mat­ters may be inserted in Bills exhibited in so high and honourable a Court in Slaunder of the parties, and they cannot answer there for their purgation, nor have their action for purging themselves of the crimes, and recover damages for the wrong, but that the said Bill shall remaine alwayes of record to their infamy, and here no murther or piracy can be punish­ed upon any Bill exhibited in English, but he ought to have beene indicted, and therefore he hath not onely mistaken the Court, but also the nature of ex­hibiting the Bill, hath not appearance of any ordina­ry course of justice, but no action lyes upon an ap­peale of murder, returnable in the Common Bench, for though the Writ is not returned before compe­tent Judges, who may doe justice, yet 'tis in nature of a lawfull Suite, namely, by Writ of appeale, where­fore judgement was given for the Plaintiffe. And in a Writ of error in the Chequer Chamber brought by Wood, 'twas resolved that Sir R. B. might have had a good action, but here, because the action was not up­on [Page 104] the Bill exhibited at Westminster, but because he said in the County of S. that his Bill was true, In au­ditu quamplurimorum, without expressing the said mat­ters in particular, so that it was not any Slaunder, judgement was reversed.

Stanhopp and Bliths Case, 27. of the Queene, fo. 15.

MAster Stanhopp (who was a surveyor of the Dut­chy and had divers Offices and was a justice of peace) Hath but one Mannor, and that he hath gotten by swearing, and forswearing. Resolved, that the action doth not lye, for they are too generall and words which charge any one, in an action in which damages shall be recovered, ought to have convenient certain­ty; and he doth not charge the Plaintiffe with swea­ring, &c. and he may recover a Mannor by swearing, &c. yet not procuring or assenting to it. Resolved, if one charge another that he hath forsworne him­selfe, no action lyes. First, because he may be for­sworne in usuall communication, Quia benignior sen­sus in verbis generalibus seu dubijs est praeferenda. Se­condly, it is an usuall word of passion, and choller as also to call another a Villaine, a Rogue, or Varlet, these and such like will not mayntaine Action, Boni judicis interest, lites derimere. But if one say to ano­ther, that he is perjured, or that he hath forsworne himselfe in such a Court, &c. For these words an Action will lye.

Hext Justice of Peace against Yeomans. 27. of the Queene. fo. 15.

FOr my ground in H. Hext seekes my life, and if I could finde one J. H. I doe not doubt, but within two dayes, to arrest Hext for suspicion of felony. Adjudged, that no [Page 105] action lyes for the first words; 1. Because, he may seeke his life lawfully upon just cause, and his land may be holden of him. 2. 'Tis too generall, and the Law inflicts no punishment for seeking of his life; but adjudged that the action lyes for the last words; for, for suspicion of felony, he shall be imprisoned, and his life in question.

Birchleys case. 27. & 28. of the Queene. fo. 16.

THe Defendant said to B. (Clerke of the Kings Bench, and sworne to deale duely without cor­ruption) you are well knowne to be a corrupt man, and to deale corruptly. Adjudged that the action lyes; 1. Be­cause the words Ex causa dicendi, imply that he hath dealt corruptly in his profession, Et sermo relatus ad personam intelligi debet de conditione personae. 1. This tou­ches the Plaintiffe in his oath; 2. The words Scanda­lize him in the duty of his profession, by which he gets his living. Skinner of London said, that Manwood was a corrupt Judge; adjudged actionable. Resolved in this case, that if the precedent parlance had beene, that B. was a usurer, or executor of another, and would not performe the will, and upon this the De­fendant had spoken the words following, no action would lye.

Weaver and Caridens case. 37. of the Queene. fo. 16.

AAjudged, that no action lyes, for saying that the Plaintiffe was detected for perjury in the Starre­chamber, for an honest man may be detected, but not convicted.

Stuckley and Bulheads case. 44. and 45. of the Queene. fo. 16.

ADjudged, that an action lyes for saying, Master St. (he was a Justice of peace) covereth and hi­deth felonies, and is not worthy to be a Justice of peace; for this is against his oath, and his office, and a good cause to put him out of Commission, and for that he may be indicted and fined.

Snagg and Gees case. 39. of the Queene. fo. 16.

THou hast killed my wife, and art a traytor. Adjudged that the action will not lye, for the wife was in life, as appeared in the Declaration, and so the words vaine and no scandall, otherwise if shee had beene dead.

Eaton and Allens case. 40. of the Queene. fo. 16.

HE is a brabler and a quarreller, for he gave his Cham­pion counsell to make a Deed of gift of his goods to kill me, and then to fly out of the Country, but God preserved me. Resolved, that the action will not lye, for the purpose without act is not punishable and though he may be punished for such conspiracy in the Star-chamber, yet, this is by the absolute power of the Court, not by ordinary course of Law. Observe well this case, and the cause and reason of this Judgement.

Anne Davies case. 35. of the Queene. fo. 16.

THe Defendant said to B. (a Suitor to the Plaintiffe, and with whom there was neare an agreement of marriage) I know Davies daughter well, she did dwell in [Page 107] Cheapside, and a Grocer did get her with childe; and the Plaintiffe declared, that by reason thereof, the said B. refused to take her to wife.

Resolved, the action lyes, for a woman is punisha­ble for a Bastard by 18. of the Queene, ca. 3. And though that fornication, &c. is not examinable by our Law, because done in secret, and uncomely openly to be examined, yet the having a Bastard is apparant, and examinable by the said Act.

Resolved, if the Plaintiffe had been charged with nude incontinency onely, the action lyes, for the ground of the action is temporall, viz. the defeating of her advancement in marriage. By Popham an action lyes, for saying that a woman, Inholder, had a great infectious disease, by which shee loses her guests. Banister and Banisters case. 25. of the Queene. Resol­ved, that an action lyes, for saying to the sonne and heire, that he was a Bastard, for this tends to his dis­inherison; but resolved, if the Defendant pretend that the Plaintiffe is a Bastard, and he himselfe right heire, no action lyes, and this the Defendant may shew by way of barre.

Jeames case. 41. & 42. of the Queene. fo. 17.

THe Defendant said to B. Hang him (innuendo prae­dict. J:) he is full of the pox (innuendo the French pox) &c. Resolved, two things are requisite to have an action for slander 1. That the person scandalized be certaine. 2. That the scandall be apparent by the words themselves. And therefore if a man says, that one of the servants of B. is a notorious felon or tray­tor, an action lyes not (if he have more servants) and (innuendo) cannot make it certain. So, I know one neare about B. that is a notorious thiefe. But if two speake of B. and the one says, he is a notorious thiefe, an action [Page 108] lyes, and B. may reduce this to a certainty by (in­nuendo praedict. B.) for the office of an (innuendo) is for to designe the person that was named in cer­taine before, and in effect, stands in place of (praed.) but (innuendo) cannot make that certaine, which was incertain before, and subject to a deceivable con­jecture. But if one says to B. Thou art a traytor, an acti­on lyes, for constat de persona. So here, when two speake of the Plaintiffe, and one says, Hang him; there (innu­endo) will denote the person, but (innuendo) can­not extend for to make the intent to be the French pox, by imagination, which is not apparent by the precedent words; and the words themselves shall be taken in mitiori sensu.

Oxford and his wife against Crosse. 41. of the Queene. fo. 18.

THe Plaintiffes brought an action in London, for cal­ling the wife of the plaintiffe whore; the defen­dant removed this out of London by habeas corpus, a Procedendo was prayed, because the action was main­tainable in London, though not at common Law; de­nied by the Court, for such custome to maintaine an action for brabling words, is against Law.

Sir G. Gerrard Master of the Rolls against Mary Dickinson. 32. & 33. of the Queene. fo. 18.

THe Plaintiffe counts that he was in communicati­on with R. E. for to demise to him the Mannor, &c. The Defendant said (Praemissorum non ignara) I have a lease of 90 yeares of the Mannor, and then shew­ed and published a Demise made by the Lord Audley, grandfather of the Lord A from whom the plaintiffe claimes, where in truth the defendant knew this to [Page 109] be counterfeit, by reason of which, &c. R. E. did not proceed, &c. The Defendant pleaded, Quod talis In­dentura (qualis in the count) came to his hands by trover, and traversed, that he knew of the forgery.

Resolved, if the defendant affirme and publish that the plaintiffe had not right, but that she her selfe had, no action lyes, though she hath no right, because she pretends title, for if an action should lye, how could any one claime, or sue, or seeke counsell for any land? Banisters case before resolved according, and therefore 'twas here resolved, that no action lyes for saying, I have a Lease, &c. though it be false. And though it appeares by the barre, that she had not title, but is a Stranger, yet, because the matter in the count doth not maintaine the action, the barre shall not make it good.

Resolved, that there was other matter in the count sufficient to maintaine the action, viz. that the De­fendant knew of the communication, and that the Lease was forged, and yet published it, by which, the Plaintiffe lost his bargaine.

Resolved, that the barre was insufficient, for the knowing of the Defendant of forgery, is not traversa­ble; as in an action, for that the Dogge of the Defen­dant had bit the beasts of the Plaintiffe, Ipse sciens ca­nem suum ad mordendas oves consuetum. (Sciens) is not traversable, but it ought to be proved upon the gene­rall issue, for (sciens) is not a direct allegation, nor alledged in any place. And talis indentura, qualis, is no direct answer to the Indenture mentioned in the count, for talis, non est eadem, and no simile est idem.

Barhams case. 44. & 45. of the Queene. fo. 20.

MAster Barham did burne my barne (innuendo a barne with corne) with his own hands, and none but he. [Page 110] Moved in arrest of judgement that the words were not actionable, for 'tis not felony to burne a barne, if it be not parcell of a mansion house, or full of corne; and in such case agitur civilitèr, not criminalitèr, & ver­ba accipienda sunt in mitiori sensu. And the (innuendo) will not serve, when the words are not slanderous.

Britteridges case. 44. & 45. of the Queene. fo. 19.

B. Is a perjured old knave, and that is to be proved by a stake parting the land of A. and B. Resolved, that the action lyes for the first words. And adjective words will maintaine an action, when they presume an act committed (as here) or when they scandalize a man in his office, or function, or trade, by which he acquires his living. Philips, Batchelor of Divinity, brought an action against B. for saying; Thou hast made a seditious Sermon, and moved the people to sedition this day; adjudged the action lyes, because, though the first part of the words were meerely adjective, they scan­dalized him in his function. So, if a man says to a Merchant, that he is a bankruptly knave, or a bankrupt knave, as 'twas adjudged in Mittons case; or that he will be a bankrupt within two dayes; but an action lyes not when these adjective words import not an act done, but an inclination, which doth not scandall him in his function, &c.

Resolved, in the case at barre, that upon all the words together, no action lyes, for the last words ex­plaine his intent to be, of no judiciall perjury. And 'tis not possible that a stake can prove a man perju­red; as it hath been adjudged; Thou art a thiefe, for thou hast stollen my apples out of my Orchard; or robbed my hop-ground. Dobbins and Francklins case. 43. &. 44. of the Queene. But if the counsell of the Plaintiffe had dis­closed the truth of the case in the count, an action [Page 111] would lye, for in truth, there was a controversie be­twixt two, whether the stake stood upon the land of the one, or the other, or as an indifferent boundary, and the Plaintiffe was deposed in an action for this, as a witnesse; and by the pretence of the Defendant, had perjured himselfe in his Deposition.

Palmer and Thorpes case. 25. of the Queene. fo. 20. touching defamations in the Ecclesiasticall Court.

REsolved, that such defamation ought to have three incidents. 1. That the matter be meerely spiritu­all and determinable in the Ecclesiasticall Court, as for calling Heretique, Schismatique, advowterer, for­nicator. 2. It ought to concerne matter meerely spi­rituall onely, for if it concerne any thing determina­ble at common Law, the Ecclesiasticall Judge shall not have conusance of it. See for this 22. E. 4. 20. the Abbot of St. Albanes case. 3. Though the thing be meerely spirituall, yet he which is defamed cannot sue there for amends, or damages, but the suite there ought to be onely for punishment of the offender, Pro salute animae. For this, see Articulis cleri, & circum­spectè agatis, and Fitz: 51, 52, 53. But the Plaintiffe shall recover costs there, and there if the Defendant, to redeeme his pennance, agree to pay a certaine summe, the party may sue for this there, and no Pro­hibition lyes.

Brownes case. 23. & 24. of the Queene. fo. 21.

COpy-holder in fee, by licence, leases for yeares, and dyes, the eldest Sonne dyes before admit­tance, [Page 112] adjudged that the daughter of the intire blood shall have it, not the younger sonne. Resolved, though a Copy-holder, in judgement of Law, hath but an e­state at will, yet, custome hath so established and fix­ed his estate, that by the custome of the Mannor 'tis descendable to his heires, and is not meerely ad vo­luntatem Domini, but, &c. secundum consuetudinem mane­rij; so the custome is the soule and life of Copy-holds. See the booke at large, of what antiquity Copy-holds are, and some generall learning concerning them.

Resolved, when custome hath created such inheri­tances, the Law shall direct the descent according to the Maximes and rules of the common Law, as inci­dent to every estate descendable. When uses had gained a reputation of inheritances, the Law directed the descent, and of them there shall be a possessio fra­tris. But resolved, that such customary inheritances shall not have any collaterall qualities, which doe not concerne descent of inheritance, which other inheri­tances have; and therefore they shall not be assets to the heire, upon an obligation, nor there shall not be Dower, nor tenancy by the Curtesie, nor a descent shall toll entry, &c. For, as without custome, they cannot descend, so without custome, they cannot have a collaterall quality; for Copy-holders have inheri­tances secundum quid, viz. to descend to the heires, and not to be determined by the will of the Lord, not simplicitèr, to a collaterall quality.

Resolved, that the heire, before admittance, may take the profits, and may surrender to the use of ano­ther, before admittance; but this shall not prejudice the Lord for his Fine upon the descent, and he is a tenant by Copy of Court-roll, for the roll made to his auncestor belongs to him, and admittance of te­nant for life shall serve for the remainder, yet, it shall not prejudice the Lord for his Fine. And though [Page 113] 'twas objected, that every admittance amounts to a grant, and so may be pleaded, and therefore nothing vests before admittance, yet, 'twas resolved, that, as after admittance, the heire may in pleading alledge this as a grant, and this to avoyde inconveniences (for, if he should be compelled to shew the first grant, it was before time of memory, and so not pleadable, or if within memory, then the custome failes) yet, he may alledge the admittance of his auncestor, as a grant, and shew the descent to him, and that he en­terd, and this without admittance, but he cannot plead, that his Father was seised, &c. by Copy, &c. and dyed seised, and that this descended, &c. For in truth, 'tis but a particular estate at will in judgement of Law, though descendable by custome.

Ryvets case. 24. of the Queene. fo. 22.

A Greed, that a husband shall not be tenant by the Curtesie of a Copy-hold, without speciall cu­stome.

Deale and Rigdens case. 36. of the Queene. fo. 23.

ADjudged, that if a recovery be in plaint, in nature of a reall action, against tenant in taile (admit­ting Copy-hold may be intailed) that this is a discon­tinuance, for, in as much as plaints are warranted by custome, 'tis incident, that it should make a discon­tinuance. The like judgement was between Clun and Pease.

Bullock and Dibleys case. 35. of the Queene. fo. 23.

REsolved, that a surrender by the husband is no dis­continuance to the wife, nor her heires. And if a [Page 114] Copy-holder for life surrender to the use of another in fee, this is no forfeiture, for it doth not passe by livery. And Copy-holders have not such quality, without speciall custome; so also adjudged in severall cases.

Gravenus and Teds case. 35. of the Queene. fo. 23.

REsolved, that the descent of a Copyhold, doth not toll entry; and that where the custome was, that he may grant in fee simple, that he may, by the same custome, grant to a man and the heires of his body; for be it a fee simple conditionall, or a taile, 'tis with­in the custome, so, of a grant for life, or yeares, for fee simple includes them.

Fitch and Huckleys case. 36. of the Queene. fo. 23.

REsolved, that admittance of a Copyholder for life, is an admittance of him in remainder, but not to prejudice the Lord for his Fine. And that upon a sur­render, to the use of himselfe for life, and after to the use of his last will, that the fee remaines in the Copy-holder, not in the Lord.

Clarke and Pennifathers case. 26. of the Queene. of. 23.

REsolved, that the heire of a Copyholder may en­ter, and have trespas, before admission, and if the heire (as the principall case was) dye before admis­sion, his heire may take the profits, and have trespas. And Wray said, that 'twas adjudged, that there shall be possessio fratris of it. Resolved, that where H. 8. granted a Mannor to the Queene for life, that the Queene was a sole person exempted by common law, and may make a lease or grant, without the King, and [Page 115] may plead, and be impleaded: and that 32. H. 8. is but a declaration of the common Law.

Adjudged, that a grant of a Copyhold in fee, es­cheated to her, by the Queene tenant for life, bindes the King, his heires and successors, for she was domina pro tempore, and the custome of the Mannor bindes the King. And that every one, who hath a lawfull interest in a Mannor, &c. though but at will, may grant Co­pyholds escheated, &c. rendring the auncient rent, customes, and services, and this shall binde the Lord, for, he is dominus pro tempore. For, a Copyholder de­rives not his interest out of the estate of the Lord onely, but out of the custome, and the grantee is in by that, without regard to the estate or person of the grantor; and therefore such a grant by the husband shall binde the wife; so, of Infants, non compos mentis, Bishop, Prebend, Parson, shall binde for ever, for the custome is, that the tenements are parcell of the Mannor, and demised, and demisable, &c. But the Lord must have a lawfull estate; for, if a disseisor, or Feoffee of a disseisor, &c. makes such grants, this shall not binde him that hath right, after a recontinuance of the Mannor; but admittances by such upon a sur­render, or of the heire shall binde, &c. for they are lawfull, & quodam modo judiciall acts, which to doe, he may be compelled in a Court of equity.

P. 26. of the Queene. fo 24.

ADjudged, if a Lord takes wife, and a Copyholder for life (according to the custome) dyes, and the Lord regrants for lives, and dyes, that the wife in Dower, shall not avoyde these grants, for though the grant were after the title of Dower, yet, the custome was before. If a Feoffee upon condition, makes a vo­luntary grant, the condition is broken, the Feoffor reenters, the grant shall stand.

Rous and Arters case. 29. of the Queene. fo. 24.

ADjudged, that if tenant pur auter vie of a Mannor, after the death of cestuy que vie, continues in, and holds Courts, and makes voluntary grants, this shall not binde the lessor (otherwise of admittances upon surrenders, or descents) for he was tenant at suffe­rance, who hath no lawfull interest, and a Writ of en­try ad terminum qui praeteriit lyes against him, and so he is a deforceor.

Murrell and Smiths case. 33. and 34. of the Queene. fo. 24.

THe Queene grants a Copyhold in fee, and after grants the inheritance of the Copyhold to a stranger; the Copyholder devises to M. and after sur­renders to the use of his will. Resolved, that custome hath so established the estate of a Copyholder, that by severance of the inheritance of the Copyhold, from the Mannor, the Copyhold is not destroyed, for, being the Lord himselfe could not ouste the Co­piholder, no more can another claiming in by him. Objected that every Copyhold ought to be parcell of the Mannor; and to be demised, or demisable, time out of memory. Resolved, that because once this had both the incidents aforesaid, and its perfection, the severance made by the Lord, shall not destroy it.

Resolved, that notwithstanding the surrender, and devise, the Copyhold descended to the heire, for af­ter the severance of the inheritance, from the Man­nor, the surrender was utterly voyd, for, the land was not parcell of the Mannor at the time, and the devise onely cannot transferre such a customary estate, but it ought to be by surrender into the hands of the Lord, &c.

Resolved, that after severance, the Copyholder shall pay his rent to the Feoffee, and shall pay, and do other services which are due, without admittance, or holding of a Court, as to plough the demeanes of the Lord, Heriot, &c. but suite of Court, and Fine up­on alienation or admittance, are gone, for now the land cannot be aliened, for, though the Copyholder hath some benefit by the severance, as appeares be­fore, so he hath great prejudice, for now he cannot surrender, or alien his estate, nor the Feoffee cannot make an admittance, for he is not dominus pro tempore.

Resolved, that such forfeitures remaine, as were be­fore the severance, as Feoffement, lease, wast, denier of rent; So, if the land were of the nature of Borough English, or Gavelkind, and other customes which run with the land remaine. And 'twas said that such Co­pyholder hath, no other meanes to alien, but by De­cree in Chancery against him and his heires, but, by this, the interest of the land is not bound, but the person onely.

Kite and Queintons case. 31. of the Queene. fo. 25.

COpyholder in fee surrenders out of Court, by the custome, to the hands of certaine Copyhold te­nants, to the use of another and his heires, upon cer­taine condition, at the next Court, the surrender was presented, but the condition omitted, he, to whose use, &c. dyes, the Lord admits his heire, he that made the surrender releases to the heire being in possession, and after enters.

Resolved, that the presentment of the surrender was voyde, for that the condition was omitted, for, the surrender that the Copiholder made, was not pre­sented, but if the surrender & the condition had been presented, and the Steward in entring of it, omits the [Page 118] condition, upon sufficient proofe of it, the surrender shall not be avoyded, but the roll amended, for the roll doth not conclude the party for to plead, or give in evidence the truth of the matter.

Resolved, if a Copyholder be ousted by wrong, a release by him to the disseisor, doth not transferre his right, because, he hath not any customary estate, up­on which the release of the customary right may in­ure; and this should be prejudiciall to the Lord, for, by this, he shall lose his Fine and services; but a re­lease made to him which is admitted by the Lord, and in possession, is good; and a release of a customa­ry right may inure to him, and the Lord not prejudi­ced, and the release shall inure by way of extinguish­ment. And Littleton speaks of an alienation by surren­der onely, which ought to be into the hands of the Lord; but a release cannot be done to the Lord, and Littleton says, He which claimes a Copihold by surren­der, hath no other evidence, but he which claimes an extinguishment of a right, may have it by release, by Deed; and 'tis no perill to purchasors, for if the Co­piholder in possession sels it, he will shew the release, and he which is out of possession cannot sell, till he hath regained the possession, & caveat emptor. By Wray, if he which hath a pretensed title, &c. to a Copihold, bargaines, &c. this is within 32. H. 8. for the Statute says (any right or title) and great part of the land within the Realme is in Copy, and therefore the in­tention was to include them, to avoyde maintenance and champerty.

Melwich and Luters case. 30. of the Queene. fo. 26.

REsolved, that the lessee of a copiholder for a yeare, shall maintaine an Ej'. Firmae, for his terme being warranted by Law, by force of the generall custome [Page 119] of the Realme, 'tis reason that he should have remedy by Ej'. Firmae. And this is a speedy course against a Stranger. Resolved, that the Copiholds are not de­stroyed, by severance of the inheritance of them from the Mannor, but remaine in force. So Murrels case before adjudged.

Resolved, that when the Lord of a Mannor having many ancient Copiholds in a Towne, grants the inhe­ritance of all the Copiholds, the grantee may hold a Court for the customary tenants, and accept surren­ders, and make admittances, and grants; for every Mannor which consists of Freeholders, and Copihol­ders, comprehends in effect two severall Courts, the one, the Court Baron, for Freeholders, and in this, the Suitors, viz. the Freeholders are Judges, and the other Court for the Copiholders, and in this, the Ste­ward, or the Lord himselfe is Judge; and though this is not a Mannor in Law, because it wants Freehol­ders, yet, the grantee, may hold such Court, as afore­said, for Copiholders onely, as the grantor himselfe might. So, if all the Freeholds escheate, or the Lord releases the tenure, and services, yet, he may hold a customary Court for the Copiholds. Note (Reader) though the Lord, by his own act, cannot make, of one and the same Mannor at common Law, divers seve­rall Mannors, consisting of Demeanes and Freehol­ders, yet, he may make a customary Mannor of Copi­holders.

Resolved, that the Lord himselfe may make a grant, or admittance, of a Copiholder, out of the Mannor; at what place he pleases; but, if the Steward, at any Court, holden out of the Mannor shall make grants, or admittances, they are voyd.

Neales case. 37. of the Queene. fo. 26.

ADjudged, that where the Lord of a Mannor demi­ses all his lands, granted by Copy, for two thou­sand yeares, that the lessee may hold Courts for Co­piholders (as Melwiches case is before) and 'twas said so to be resolved in C. Hattons case. Note (Reader) a good diversity, where the number of the Copihol­ders may support the custome, and a singular case of a Copiholder (as in Murrels case before) in which case, the Lord doth not grant tacitly any customary Court.

Clifton and Molineux case. 27. & 28. of the Queene. fo. 27.

REsolved, if a Steward hold Court out of the Man­ner, all grants and admittances there made, are voyd, for, the Court ought to be holden within the Mannor, not out of the jurisdiction of it (as Melwich case is before) but, resolved that by custome, the Court may be holden out of the Mannor, and grants, &c. shall be good, as Abbots, &c. used for to hold Courts at one Mannor, for divers severall Mannors. Resolved, that if a woman Copiholder for life, takes husband, who commits wast, and dyes, the Copihold is forfeited, otherwise, if a stranger does wast, with­out the assent of the husband.

Taverner and Cromwells Case, 26 of the Queene, fo. 27.

REsolved, if a copiholder, seised of three severall copiholds, of three severall acres, makes wast in part of one, &c. all that is forfeited, but not the o­thers, for though they are all in one hand, yet every one is severally holden, and a severall condition in [Page 121] Law annexed, and the severall conditions follow the severall tenures. So, resolved, if the coppyholder surrender them to the use of A. and the Lord admits A. Tenendum per antiqua servitia inde prius debita & de­jure consueta; and A. makes a forfeiture in one, he shall forfeite that onely, for, the Tenendum (red dendo singula singulis) continues the severall tenures, so that 'tis not materiall, if the copiholds are in one, or seve­rall copies. So if diverse severall copiholds escheate to the Lord, & he grants them Tenendum per antiqua ser­vitia, they shall be severally holden as they were be­fore, though he grants them to one man.

Resolved, that when he to whose use a surrender is made, is admitted, he is in by him that surrendered, and in a plaint in the nature of an entry in the Per, shall be supposed in by him, for the Lord is but an in­strument to make the admittance, and his charge shall not binde him that is admitted. So (Reader) where before 'tis said, that by the forfeiture of the Husband, all the estate of the Wife shall be forfeited, 'tis to be intended, all the copihold under the same tenures.

Hubbard and Hamonds Case, 42. and 43. of the Queene. fo. 27.

REsolved, that if the fines of copiholders upon ad­mittances, be incertaine, the Lord cannot exact excessive and unreasonable fines, if he does, the co­piholder may deny to pay it, without forfeiture, and it shall be determined before the Judges, upon a De­murrer, or evidence upon proofe of the value of the Land what fine was reasonable to be demanded; for if it should be otherwise, great part of the Copy-holds should be destroyed at the will of the Lord, and so was Hodesons Case adjudged.

Resolved, if the Lord assesse a reasonable fine, and [Page 122] require the Copy-holder to pay it, he is not bound to pay it presently, because he could not know what the Lord would assesse, & nemo tenetur divinare, and he shall have a convenient time to pay it, if the Lord limits no time, otherwise of a fine certaine.

Resolved, if a Copy-holder hath severall Copy-holds, by severall services, the Lord ought to assesse and demand fines severally for every parcell, and the tenant may refuse to pay his fiine for one, and forfeit that onely, and every severall tenure hath severall conditions in law tacitely annexed to it. So, if all the severall Copy-holds are surrendered to the use of another, and the Lord admits him, Tenendum per anti­qua servitia, &c. the tenures are severall and fines se­verall. Taverners ca'. before. Resolved, that no fine is due to the Lord till admittance, for admittance is the cause of the fine, and if after the tenant deny to pay it, 'tis a forfeiture. Bacon and Flatmans Case, and Sands Case so resolved.

Westwick and Wyers Case, 43. of the Queene, fo. 28.

A Woman Copy-holder in Fee, surrenders to the use of W. her Sonne in fee, and at the next Court, the entry was, Ad hanc curiam venit, W. and I uxor ejus, & ceperunt, &c. W. dyed, I. his Wife sur­vived, and surrendered to the use of I. S. in fee. Re­solved when the Lord hath the Copy-hold by surren­der, to the use of another, he hath but a customary power, to make admitance, Secundum formam & ef­fectum sursum redditionis; and 'tis not like to the Feof­fee at common Law, and though the Lord grant this by Copy to another, 'tis without warrant, and notwithstanding he might make an admittance, ac­cording to the surrender, and he which is admitted shall be in by him that surrendered (as Taverners [Page 123] Case is before) and the Court agreed, if the Lord grant to Cestuy que use, and a stranger, all shall inure to Cestuy que use, or if he admits him upon condition, the condition is voyd. As Executors agree that the legatory and I. S. shall have, &c. or, that the legato­ry shall have upon condition, the legatory shall have onely and absolutely, for, after the assent of the Ex­ecutors, he is in by the Devisee. And 'twas said, that 'twas adjudg'd in Buntings Case, that where the Lord admits one to hold to him and his Heires, (where the surrender was for life onely) that he hath but for life. Resolved that without speciall cu­stome, or other speciall matter, the admittance shall inure onely to the Husband; and judgement was given according.

Buntang and Lepingwells Case, 27. and 28. of the Queene. fo. 29.

REsolved, that though T. who was Husband of the Wife, De facto was not party to the Libell (for I. S. Libelled against the Wife, without naming her Husband, for a divorse, upon a precontract betwixt him and the Wife) nor the sentence in the Spiritu­all Court, which dissolved the Marriage betwixt him and his Wife, yet the sentence against the Wife one­ly, being but declaratory shall binde the Husband De facto, and for that the conusance of the right of Mar­riages belongs to the spirituall Court, and they have given sentence in it, the Judges of the common Law, (though it be against the reason of the Law) shall give faith and credence to their proceedings and sentences, as consonant to the Law of holy Church; for, Cuilibet in sua arte perito est credendum. So, 'twas adjudg'd that the Plaintiffe (borne in the second Marriage) was legitimate.

Resolved, when a Copyholder surrenders to the Lord, to the use of his Wife and his younger Sonne, without limitting any estate, they have for life onely, for, as well estates as discents, shall be directed by the rules of Law, as necessary consequents upon the cu­stome, except there be a speciall custome within the Mannor, that Sibi, & suis, or Sibi, & assignatis, may create an estate of inheritance. And 'twas observ'd, that the Estates limitted upon surrenders, are always annexed to the estates of him to whom the surrender is made, and alwayes the surrender to the Lord is ge­nerall, without limitation of any estate. Resolved, that when the Lord admits Cestuy que use, for life, the reversion is in him that surrendered, not in the Lord, for he is but an instrument.

Resolved, that a man may surrender to the use of his Wife, though that Cestuy que use, is in by him that surrendered, because the Husband did not doe this immediatly to the Wife, but by a second meanes, Viz. By surrender to the Lord, and by admittance of the Lord.

Resolved, that when B. surrendered out of Court, and before that 'twas presented in Court, he dyes, yet after, being presented according to the custome, 'tis good, otherwise, if it had not beene presented ac­cording to custome; so, if the Tenants in whose hands, &c. dyes, yet if it be proved, 'tis good enough; so Queintons Case before, if Cestuy que use, &c. dyes, before admittance, his Heires shall be admitted.

Downe and Hopkins Case, 36. of the Queene. fo. 29.

REsolved, that where the custome of a Mannor was, to grant Coppies for one, two, or three lives, that a grant to a Woman during her viduity, is within the custome, for 'tis an estate for life, but every grant for [Page 125] life is not Durante viduitate, issue was, whether the custome was, that the Wife of a Copy-holder after the death of the Husband, should have for life, and 'twas given in evidence, that she should have during her viduity, and adjudged that the evidence did not maintaine such custome, for 'tis a lesse estate then for life. But in the principall Case, 'tis a greater e­state which is warranted by the custome, and there­fore a lesse is within it (according to Graveners Case before) 'Twas said, that a Lord may retaine a Ste­ward by word, to hold Courts, &c. as a Bayliffe, and this retainer shall serve till he be discharged.

Harris and Jayes Case, 41. of the Queene. fo. 30.

REsolved, that a Lord may retaine one to be Stew­ard of his Mannor, and to hold Courts by word, as in the Case before. Resolved, that where a Copy-hold escheates by attainder of felony of a Copy-hold­er of the Queene, that the Steward may grant it over, Ex officio, without speciall warrant, for the custome warrants the Steward to grant it, and this shall binde the Queene and her Heires, &c. But yet his duty is before to informe the Lord, Treasurer, Chancellor, or Barons of the Exchequer, or any of them, for his better direction.

Resolved, that the Auditor or Receiver of the Queene hath no power to retaine a Steward to hold courts, &c. But it behooves that the Steward (who makes such voluntary grants upon escheats, or forfei­tures to be good) to have Letters Pattents of the Stewardship of the same Mannor.

And 'twas said, that 'twas adjudged in the Lady Holcrofts Case, that where one was retained generally by word, to be Steward of a Mannor, and to hold Courts, that he may take surrenders of customary te­nants out of Court.

Shaw and Thompsons Case, 33. of the Queene. fo. 30.

REsolved, that a Woman shall not be indowed of Copy-hold without speciall custome, and that when a Woman is to be indowed by custome, she shall have all incidents to Dower, and shall recover damages by the Statute of Merton, because her Hus­band dyed seised, and therefore the recovery of da­mage of 50. l. in the Court of the Mannor, was allow­ed, though this exceeded 40 s.

Resolved, that no Action of Debt lyes for these damages at common Law, for upon such judgement no error or false judgement lyes, but the remedy is, in the Court of the Mannor, or Chancery. Fenner Justice, said, That he had seene a Record. 36. H. 8. where the Lord by Petition to him, had for certaine errors in the proceeding, reversed such a judgement, and upon this, the Defendant maintained an Audita quaerela, to be restored to the damages recovered a­gainst him. See 14. H. 4. cited before in Brownes Case. And 7. E 4. 29.

Hoe and Taylors Case, 37. of the Queene. fo. 30.

REsolved, that Underwood growing upon parcell of the Mannor, may by custome, be granted by Copy of Court roll; and 'tis a thing of perpetuity, to which a custome may extend, for after every cut­ting the underwood growes, Ex stipitibus. So, 'twas resolved that Herbage, or any profit of any parcell of the Mannor may, by custome, be granted by Copy; and 'twas said, that a faire appendant to the Mannor of C. in S. is granted by Copy, and this explaines the reason of the first pillar in Murrels Case.

Frenches Case, 18. &. 19. of the Queene. fo. 31.

REsolved, if the Lord Lease for yeares, life, or make any other estate, by deed, or without deed, of Copy-hold Land forfeited, escheated, &c. to him, that this Land can never be granted againe by Copy, for the custome is destroyed, for during these estates, the Land was not demised, nor demisable by Coppy. So, if the Lord make a feoffement, and enter for con­dition broken; but if the Lord keepe it in his hands a long time, or leases it at will, he, his heires or as­signes, may regrant it. So, if the interruption be tortious, as by disseisin, and discent, false verdict or erroneous judgement: for, Non valet impedimentum, quod de jure non sortitur effectum, & quod contra legem fit, pro infecto habetur. But if it be extended upon a Sta­tute, or recognizance acknowledged by the Lord, or if the Wife of the Lord hath this Land assigned to her in Dower, though these impediments are by act in Law, yet for that the interruptions are lawfull, the Land cannot be after granted by Copy. If a Copy-holder accept a Lease for yeares of the Lord, of his Copy-hold, 'tis destroyed for ever. If a Co­py-holder take a Lease for yeares of the Mannor, his Copy-hold hath not continuance, Hides Case adjudg­ed, 17. of the Queene, But there 'twas resolved, that such Lessee might regrant the Copy to whom he would, for the Land was alwayes demised or demisa­ble. If a Coppy-hold be surrendered to the Lessee, his Executors or assignes may regrant it. If a Copy-hold escheate to the Lord, his alienee by fine, feoffe­ment, &c. may regrant it.

Foiston and Crachroodes Case, 29. and 30, of the Queene. fo. 31.

ADjudged, that where a Copy-holder in pleading al­ledges, Quod infra Man. praed talis habetur nec non a to­to tempore cujus, &c. habebatur consuetudo, Viz. quod qui­libet tenentes praedictorum tenement. vocat. C. have used to have common, in such a place parcell of the Man­nor, and that he is a Copy-holder of the said Tene­ment, that this custome, as well for the matter as the forme, was good; for the Copy-holder cannot pre­scribe in his owne name, for the exility and basenes of his estate, and if he had claimed common in the soile of another, he ought to prescribe in the name of the Lord, Viz. That the Lord, and all his ancestors, and all those whose estate, &c. have had common in such a place, for him, and his Tenants at will; but when he claimes this in the soile of the Lord, he can­not prescribe in the name of the Lord, for the Lord cannot prescribe to have common, &c. in his owne soile, and therefore he ought to alledge, that within the Mannor there is such a custome.

Note, a good diversity betweene a prescription which is personall, and alwayes made in the name of a certaine person, or his auncestors, or those whose estate, &c. and a custome which is locall and allead­ged in no person, but that within the Mannor, there is such a custome, this shall serve for those who can­not prescribe in their owne name, nor in the name of any person certaine, as the Inhabitants of a Towne. Also, the allegation of a custome, shall serve, when 'tis referred to a thing insensible, Viz. that all such Lands are devisable. And, for that in the principall case, the custome may have a lawfull commencement, that one copy-holder onely shall have common, esto­vers, [Page 129] or other profit in the land of the Lord and that in many Mannors; some Copiholders have common in one wast of the Mannor, and others, in another se­verally, so that the custome cannot be applied to all, and because, that all the other Copiholds may be de­termined and extinct, 'twas adjudged, the custome was well alledged. So, to have common of estovers in the wood of his Lord parcell of the Mannor, &c. was adjudged good, 10. of the Queene, as 'twas said.

Myttons case, 26. Eliz.

QUeene Elizabeth by Letters Patents did grant the office of the Clerkship of the County Court of Somerset to Mytton, with all fees, &c. for life. Arthur Hopton Esquire, Sheriffe of the same Shire interrupted him, because it was incident to his office. Mytton com­plained to the Lords of the Councell, and it was re­ferred to the two chiefe Justices, Wray and Anderson. And after many arguments concerning the validity of the grant, and conference had with all the other Ju­stices. It was resolved by all the Justices, Nullo contra­dicente aut reluctante, that the said Letters Patents were voyd: And their reasons were, that the office of the Sheriffe was an ancient office before the Conquest, and of great trust and authoritie, for the King com­mitteth unto him Custodiam Comitatus; And though the King may determine the office ad beneplacitum, yet, he cannot determine this in part, as for one Towne, or Hundred, nor abridge him of any incident to his office; for the office is entire, and ought to continue so without any fraction, or diminution with­out by Parliament, and the County Court, and the entring of all proceedings therein, are incident to the Sheriffes office, &c. And though 'twas granted when [Page 130] the office of the Sheriffe was voyd, yet, the new She­riffe shall avoyde it; as Scroges case, in the time of va­cation of the office of the Chiefe Justice of the Common Bench, Queene Mary granted the office of the Exi­genter of London; resolved, that the next Chiefe Ju­stice shall avoyd it, for 'twas incident to his office.

Also in all Writs directed to the Sheriffe concern­ing the County Court, the King says, in comitatu tuo, and in retourne of exigents made by him, he says, ad comitatum meum tent. &c. and the style of the Court proves it, and by the Statute of 33. H. 8. the Sheriffe of Denbigh shall keepe his Shire Court at, &c. In a false judgement 'tis said, in pleno com' tuo recordari facias, &c. and in a precept of Tolt, 'tis said, summoneas, &c. quod sit ad comitatum meum. And it should be very incon­venient, that another should have the custody of the entries, and Rolls of Court, which may be imbesilled, and the Sheriffe responsable for them. And it was resolved that the custody of all the Gaoles within e­very County belongs to the Sheriffe by right, and are annexed and incident by the Law to the Sheriffes of­fice, vid. stat. An. 14^o. E. 3. ca. 10.

Bozouns case. 26. & 27. of the Queene. fo. 34.

A. Portion of tythes in L. appertained to the Re­ctory of G. which was presentable; and the Queene was seised of the Rectory of L. jure coronae, which was appropriated to the Monastery of W. and grants to B. ex gratia speciali, &c. totam illam portionem decimarum, &c. in L. &c. Cum omnibus alijs decimis suis quibuscun (que) in L. tunc, vel nuper in occupatione J. C. and that the pattents shall be of force non obstante aliquibus defectibus in non nominando, male recitando, &c. alicujus occupatoris. And J. C. never had any tythes in L.

Resolved, that (in the occupation of J. C, referres [Page 131] to all the sentence; and not onely to (cum omnibus alijs decimis, &c.) 1 Because (illam) demonstrates fully, that there ought to be words subsequent, to ex­plaine and reduce in certainty what portion, by the intention of the Queene, should passe, viz. that which was in the occupation of J. C. and 'tis not satisfied till it be come to the full end of the sentence. 2. This conjunction (cum omnibus alijs, &c.) couples the last words to the former, and makes the words subsequent to referre to all the sentence. 3. If all the tythes in L. of the said Rectory should passe, the addition of the occupation of J. C. should be vaine, & maledicta ex­positio, &c.

Resolved, that by grant of (portionem decimarum, &c.) the tythes parcell of the Rectory of L. doe not passe, for (portion) properly signifies a part or portion in grosse, divided, and not parcell of the Rectory, and the Queene had not any portion in grosse, but all were parcell of the Rectory; And (ex gratia speciala, &c.) shall not extend by any strained constructiō, to make a thing passe, against the intention of the Queene ex­pressed in her grant, and against the apt, proper, and usuall signification of the words of his grant.

Resolved, that because J. C. had not any tythes there, nothing passes, for admit that a portion should be taken for a part, then the effect of the grant is, to­tam illam portionem decimarum in occupatione J. C. and in truth, he never had any part, nothing (without que­stion) passes, in case of a common person, a fortiori, not in the case of the Queene. As to the point, when a clause of Non obstante shall make the grant of the Queene, good, when not.

Resolved, when the King by the common Law can­not in any manner make a grant, there a Non obstante of the common Law, will not make the grant good, against the reason of the common Law; as the King [Page 132] grants a protection in an Assise, or Quare Impedit, not­withstanding any Law to the contrary, 'tis voyd, for protection lyes not in these cases, for the losse which may come to the parties, by such great delay. But when the King may lawfully make a grant, but the common Law requires, that he be so instructed, that he be not deceived, there a Non obstante supplies it, and makes the grant good. As the King having made a lease for life, or yeares, grants the land, Non obstante, that it be in lease for life, yeares, &c. or if he grants the land, and further grants the reversion of it, de­pending upon an estate for life, yeares, &c. 'tis good. See the booke at large.

Resolved, when the words are not sufficient, ex vi termini, to passe the thing granted, but the grant is voyd, there a Non obstante will not serve, as in the principall case; and the Pattents, were not holpen by 18. of the Queene. ca'. 2. for Pattents of concealement are expressely excepted out of the Act.

Terringhams case. 27. El. in banco regis. fo. 36.

REsolved, that prescription doth not make a thing appendant, except the thing which is appendant agree in quality and nature to the thing unto which it should be appendant, as a thing incorporate, as an advowson to a thing corporate, as a Mannor, or as a thing corporate, as Lands, to a thing incorporate as an office, these may be appendant, but every thing incorporate may not be appendant to a thing corpo­rate, as common of turbary may not be appendant to Land, but to a Messuage or house, as it is holden 5. ass 9. for the thing which is appendant ought to ac­cord with the nature and quality of the thing to which it is appendant, and turves ought to be ex­pended in a Messuage.

The commencement of common appendant by the ancient Law, was in this manner, (viz.) When a Lord of a Mannor infeoffed another of arrable Lands, to hould of him in Soccage, (id est) per servicium socae the Feoffee ad maintenand' servicium socae had com­mon in the wasts of the Lord for his necessary beasts that did plowe and ayre his Lands, and this common, is of common right, and commenceth by operation of the Law, and in favour of tillage, and therefore it needeth not to prescribe in that, for so it is houlden 4. H. 6. & 22. H. 6. as one ought if it were against common right. But it is onely appendant to the an­cient arrable Lands, and onely for oxen, horses, kyne, and sheepe, &c. And because it is against the nature of common appendant to be appendant to meadowe or pasture, and because that here, the prescription was to have common time out of minde to a house, meadow, and pasture, as well as to arrable, by which it appeares to the Court, that there hath been a house, meadow, and pasture, time out of minde, 'twas resolved that this common was appurtenant, not ap­pendant. But if of latter times, men have builded upon some part of such arrable Lands, and some part thereof is imployed to meadow and pasture; and this for maintenance of tillage (the originall cause of com­mon) the common remaines appendant, and it shall be intended in respect of the continuall usage of the common for beasts leavant and couchant upon such lands, that at the beginning all was arrable. But in pleading he ought to prescribe that the same is ap­pendant to Land, for though terra dicitur a terrendo, quia vomere territur, yet (terra) includes all, and is arrable, though converted to meadow, &c. For it may be plowed.

A man may prescribe to have common appendant to his Mannor, for all the demeanes shall be intended [Page 134] arrable; at least, in construction of Law (redd'. sin­gula singulis) it shall be appendant to such demeanes which are ancient arrable, &c. And when a man claimes common appendant to his Mannor, no incon­gruity appeares of his own shewing, as here. So com­mon may be appendant to a Carve of land, which may containe pasture, meadow, and wood, but it shall be applyed to that, which agrees with the nature of the common.

Resolved, that common appendant may be appor­tioned, because 'tis of common right; for if a com­moner purchase part of the Lands, in which he hath common, yet the common shall be apportioned, as well as if the Lord purchase parcell, of the tenancy the rent shall be apportioned. And if A. a commoner enfeoffe B. of parcell of his ancient Lands, the com­mon shall be apportioned, and B. shall have common pro rata. And 'twas agreed, that such common which is admeasurable, remaines after severance of part of the land, to which, &c. But here, for that the com­mon was appurtenant, 'twas adjudged, that by the purchase, all was extinct, for 'twas against common right; for, by the act of the parties, it cannot be in esse for part, and extinct for part.

'Twas said that pertinens is the Latine word as well for appurtenant as appendant, and therefore subjecta materia, and the circumstances ought to direct the Court to adjudge the common, appurtenant, or ap­pendant.

Resolved, that unity of possession of the intire land, to which, &c and of the intire land in which, &c. extinguishes the common appendant. By Wray, chiefe Justice common for vicinage, is not appendant, but, for that it ought to be by prescription, 'tis resembled to common appendant, but common appurtenant, or in grosse, may commence at this day, by grant, or [Page 135] prescription; and by him, the one may inclose com­mon for vicinage, against the other: as hath been ad­judged in Smith and Redmans case. Resolved, that a man may chase out beasts that doe him trespasse, with a small dog, and shall not be compelled to di­straine them damage feasant.

Brookes case. 28. of the Queene. fo. 39.

REsolved, that in an appeale of Burglary, 'twas an insufficient count that the defendant domum, &c. fel [...] & burgaliter fregit, for it ought to be burgla­ [...], or burgulariter, which is vox artis, as murdravit, [...]it, which cannot be otherwise expressed.

Resolved, if the count had been sufficient, he be­ing [...]icted once, should not be againe impeached; but here he was discharged upon the insufficient count By Wray, Chiefe Justice, if, upon accident, a man and all his family are out of the house, and one, in the interim, breakes the house, and commits felo­ny; 'tis burglary, for the indictment is, domum man­sionalem fregit; and so 'twas resolved, 38. of the Queene, where a man hath two mansion houses, & servants in both, and in the night when the servants are out, &c. the house is broken, 'tis burglary.

Wetherell and Darlys case. 35. of the Queene. fo. 40.

IN an appeale of murder, the Defendant was found guilty of homicide, and had his Clergy, after in­dicted and arraigned for murther, pleaded this con­viction; Resolved, that 'tis a good barre at common Law, and restrained by no Statute; the reason is, be­cause [Page 136] the life of a man, shall not be brought twice in question for the same offence.

Youngs case. 38. of the Queene. fo. 40.

AN Indictment that dedit unam plagam mortalem cir­citer pectus, is insufficient, for 'tis incertaine whe­ther it be in the necke, arme, or belly; and Indict­ments ought to be certaine, and shew in what part the wound is, and the profundity and latitude, that it may appeare to the Court to be mortall, and one of the wounds incertainly alledged, makes the whole Indictment insufficient. 'Twas said, that the indictment ought to have been, that if the party had [...] dyed of the first stroke, that he dyed of the other, and this is the common course.

Upon a suddaine affray, if the Constable or any of his assistants in suppressing it, be killed, 'tis murder in Law, though the murderer knew not the party killed, for the Law adjudges it murder, and that he had ma­lice prepense, for that he opposed him against justice So, in case of a Sheriffe, or any of his Bayliffs or Offi­cers in execution of processe; so, of a Watchman.

Walkers case. 41. of the Queene. fo. 41.

REsolved, that an indictment of murder (upon which the party was outlawed) that he stroke the dead in sinistra parte ventris circa umbelicum, was good, for si­nistra parte, was sufficient, and the other superfluous, but in Youngs before, there was no certainty before the circiter.

Heydens case. 28. of the Queene. fo. 41.

EXceptions to the indictment, 1. Because 'twas ta­ken before B. Coronatore in Com'. praed'. and doth [Page 137] not say, de com'. praed. Resolved, it shall be so taken by reasonable intendment, and the Writ de coronatore eli­gendo, is, quia A. B. nuper unus Coronator' in Com'. tuo diem clausit, &c. and so 'tis taken in Willoughbyes case in Plodon. 2 because he doth not say, that E. S. (dead) fuit in pace Dei & dominae reginae: Resolved, that they are only words of forme, to amplifie the hainousnesse of the offence, not of substance, and perchance he was not in peace. 3. Because he doth not say, felonicè nor ex malitia sua praecogita dedit, &c. Resolved, that the word (et) couples the sentences together, so that these words (felonicè & ex malitia, &c.) and tunc & ibidem makes it cleare. 4. The profundity of the wound is not shewne; Resolved, it cannot be here; for all the panne of the knee was cut off. 5. 'Tis said, tempore feloniae praed'. & murdredi, where it should be murdri, Resolved, the first words were sufficient, and then murdredum being a word insensible is superflu­ous, and shall not hurt. 6. The wound was the fourth of August, the death the nineteenth of December, and the indictment is that T M &c. tempore feloniae & murdredi praed'. viz. 4. Augusti felonicè fuer'. praesen­tes &c. auxiliantes, &c. 'Twas objected, that the death hath relation to the stroke; Resolved, that indict­ments have been often adjudged insufficient, when the stroke is one day, the death another, and the Ju­ry conclude the death to be done the first day; But, here it ought to have been, that they were praesentes & auxiliantes, &c. ad feloniam & murd'. praed'. and re­lation, which is a fiction, shall make no man a felon. And Wray said, that without question, the yeare of bringing the appeale, shall be accounted from the death, not from the stroke.

Hume against Ogle 32. & 33. of the Queene. fo. 42.

ADjudged, that the count (that the defendant gave the stroke the 27. of September at D. in the Coun­ty of N. and that her husband of the same stroke at D. &c. dyed, and so the said defendant murdered him at D. aforesaid) 'twas repugnant and insufficient, for, as it cannot be said, that he murdered him the first day (as Heydons case is before) so neither at the place where the stroke was, but where he dyed.

Hudson and Lees case. 31. of the Queene. fo. 43.

IN an appeale, H. counted that the defendant, &c. felonicè maimed him in his left hand, the defen­dant pleaded, that before, &c the plaintiffe recove­red in Trespas for the same battery and wounding 200. l. and satisfaction acknowledged. Resolved, [...] the barre is good, for where the plaintiffe is to reco­ver damage onely (as in this case of the appeale [...] shall not be twice satisfied for the same thing, nem [...] debet bis puniri pro uno delicto. And here the wounding in the first action includes the mayhem, & more, and the defendant hath averred that the wounding in the first action, and the mayhem here is one.

Syers case. 32. of the Queene. fo. 43.

REsolved, if the principall be pardoned, or hath his Clergy, the accessory cannot be arraigned, for 'tis a Maxime, Ʋbi factum nullum, ibi fortia nulla, & ubi non est principalis, non potest esse accessorius, and none can be principall before it be so adjudged by Law, viz. by judgement upon verdict, or confession, or by Out­lawry; and it suffises not, that in truth, he be princi­pall; [Page 139] and the acceptance of pardon, or prayer of Clergy, is an argument, but no judgement in Law, that he is guilty. But, if the principall, after attain­der, be pardoned, or hath his Clergy, the accessory shall be arraigned for it appeares judicially that there was a principall.

Bibithes case. 39. of the Queene. fo. 43.

REsolved, that where the principall was found guil­ty of man-slaughter, and not guilty of murder, and had his Clergy, the accessory shall be discharged, for till judgement, it doth not appeare judicially, that there was a principall. So, if the principall, upon his arraignment, confesses the felony, & before judge­ment obteines pardon, or hath Clergy. Resolved, that there cannot be an accessory before the fact, in man-slaughter, for 'tis upon a suddaine affray; and if pre­meditated, 'tis murder.

Vauxes case. 33. of the Queene. fo. 44.

REsolved, that where a man was indicted for poy­soning another, perswading him that the potion mixt with Cantharides would cause him to have issue by his wife, the indictment (nesciens praed'. potum cum veneno fore mixtum, sed fidem adhibens praed'. persuasioni dict'. W. V. recepit, & bibit) was insufficient, for 'tis not expressed that he received the poyson, for (vene­num praed') wants, and the words after (immediatè post receptionem veneni praed'.) are not sufficient to maintaine an indictment, which ought to be certaine, and not by implication.

Resolved, that Vaux, who perswaded, was a princi­pall murderer, though he was not present at the re­ceit of the poyson, and here he cannot be accessory, [Page 140] for there is no principall; and if any one had procu­red V. to doe it, he had been accessory before, which note, a speciall case, where principall and accessory both are absent at the time of the felony.

Resolved, that (auter foits acquite) here is no plea, for, he was discharged upon an arraignement upon this insufficient indictment, and the former acquittall, or conviction, ought to be lawfull, and the Maxime is, That the life of a man shall not be twice in jeo­pardy for one offence, but here his life was not in jeopardy. So, if a man be convicted by verdict, or confession, upon an insufficient indictment, and no judgement given, he may be againe indicted and ar­raigned, for the law wants its end; but, if upon such insufficient indictment, the felon hath judgement quod suspendatur per collum, and so attainted (which is the end of the Law) he cannot be indicted againe, &c. till this judgement be reversed; and upon such acquittall no conspiracy lyes.

Wrote and Wigges case. 33. & 34 of the Queene. fo. 45.

THe defendant in an appeale of murder pleads that auter foits, by inquisition taken before the Coro­nor of the Queenes houshold, and B. one of the Co­ronors of M. he was indicted of Manslaughter, which inquisition was certified to N. at the Goale delivery, and the defendant upon this was arraigned, confessed the felony, and had his Clergy, and it appeares the arraignement, &c. was after the purchase of the Writ of appeale, and before the retourne.

Resolved, that auter foits convict of man-slaughter, and Clergy, is a good barre in an appeale of murder, as 'twas adjudged in Holcrofts case. In which it was likewise resolved, that an inquisition taken before B. Coronor of the houshold, &c. and one of the Coro­nors [Page 141] of M. is well taken, and within the Statute of articuli super chartas; though the Statute requires two persons; for the intent of the Act was performed, and the mischiefe recited avoyded, for though the Court removes, yet, he may proceed as Coronor of the County.

Resolved also upon the Statute of 3. H 7. ca'. 1. that this case was out of the Statute; for if the de­fendant had his Clergy, the appeale lyes not, a fortio­ri, when he is convicted onely, and prayes his Cler­gy; and the Act of the Court to be advised as to the allowance of Clergy, (so the case was) shall not pre­judice the party in case of life: And 'twas resolved, that attaint of murder in the Act, extends to a person convicted by confession, or verdict, as to a person at­taint, for he which is attainted, is convicted and more. And Agnes Gainsfords case adjudged, that where 3. H. 7. is, That the wife, or heire of him so slaine shall have ap­peale, that the heire of a woman, &c. shall have it a­gainst him, who was acquitted of the same murder. So resolved here, an indictment and conviction, or acquittance of manslaughter, is a barre to an indict­ment of the same death, for all is the same felony, though the circumstance alter it.

Resolved, that at common law, the Coronor of the houshold had an exempt jurisdiction within the Verge, and the Coronor of the County could not meddle, as appeares by Articuli super Chartas; and Swifts case adjudged where a Coronor of the County tooke an inquisition within the Verge, 'twas avoyded by plea, the one cannot meddle within the power of the other. But Justices of the Kings Bench, of oyer and terminer, &c. may inquire, heare, and determine all murders, &c. within the Verge, for their authority is generall, through all the County: so resolved in Holcrofts case.

Resolved, that the indictment was insufficient, for it doth not appeare that D (where the stroke and death was) was within the Verge, and though in truth, it were within, yet, it ought to be found by the oath of the indictors, and cannot be supplied by nude a­verrement, and it shall not be voyd & coram non ju­dice, as to the Coronor of the houshold, and good be­fore the Coronor of the County, for the Record is intire, and taken intirely before them, &c. And the defendant in his plea hath averred, that D. was within the Verge, so the Coronor of the County could not take the indictment onely.

Resolved, for that the indictment (upon which he was convicted) was insufficient, that he may be new­ly indicted, &c. for his life never was in jeopardy. Resolved, that where the stroke was one day, the death another, the conclusion ought to be, that he was murdered the day of his death, otherwise 'tis nought, for 'twas not murder before: and 'twas re­solved, that the finding of the stroke, and the death, were not sufficient of it selfe, without conclusion; and so T. W murdered the said R. W. Resolved, that though the conviction were pending the appeale, yet if it had been lawfull, and before that the de­fendant was compelled to plead, it had been a good barre.

Waits case. 45. of the Queene. fo. 47.

REsolved, that where a woman brought seaven se­verall appeales against severall persons, as princi­palls, all ought to abate, but the first, for all the prin­cipalls and the accessories before the murder and af­ter, and before the Writ purchased, against whom the plaintiffe will bring an appeale, ought to be named in the Writ: for if all make default, except one, yet, [Page 143] the plaintiffe ought to count against all, therefore he ought to bring the appeale against all. And the de­fendant shall not have damages by the Statute of W. 2. for it is out of it, because the Writ abated. And the Statute of Magna Charta says (appellum) in the singu­lar number.

Hill'. 30. of the Queene. fo. 48.

AN indictment upon 8. H. 6. was quashed, Quia fuit inquisitio capta ad sessionem pacis in Com'. S. tent'. die Martis, & die Mercurij; though the sessions may indure two or three dayes, yet, the Record ought to mention, that they were holden at a day certaine; as also for that the Statute was misrecited in a point materiall. Note, because misrecitall is fatall, the sure way is, to draw the indictment with conclusion con­tra formam statuti, and with no recitall of the Act.

Ognels case. 29. of the Queene. fo. 48.

AN Executor possessed of a grange, consisting of di­vers parcels, demises all the grange (except H.) to A. for 23. yeares, and H. to F. for 23. yeares, and grants all the residue of his terme in the intire grange to A. & F. B. the revertion or grants a rent charge in fee, out of all his lands, &c. called. C. grange quondam in tenura B. (the testator) and now in tenura & occu­patione de A. The rent is areare, the intire terme ex­pires, the reversionor makes a Feoffement, the gran­tee dyes, the Feoffee leases at will, the Executors di­straine for arrearages.

Resolved, that at common law, in some case debt lyes for arrearages of an Annuity in fee, though it continues; as if a Parson, or Prebend resigne, or dyes, because the Parson is chargeable; otherwise of a rent [Page 144] service, charge, or secke, when the Freehold conti­nues; and for a rent there is a diversity, when a rent in fee is extinct by the act of the party, and when of the Law, and when particular estates expire: see the booke at large But 'twas resolved in the case at barre, that the arrerages due in the life of the grantee, were lost at common Law. Resolved, that H. was not char­ged with the rent, for though it be parcell of the grange, and A. and F. have the reversion of the terme, and so it may be said in their tenure, yet, for that A. then had not H. in his occupation, 'tis not charged.

Resolved, that the lessee at will is chargeable by 32. H. 8. ca'. 37. for where things are due in right, and become remedilesse by the act of God, the Par­liament which gives remedy for this, shall be favou­rably construed, and extend to advance the remedy proportionably to the defect of the Law, according to the mind of the makers, and therefore the Feoffee of the Feoffee in infinitum shall be charged, for, other­wise the Statute shall be in vaine, &c.

Resolved, if the grantee in fee, or for life of a rent service, or charge, (after 'tis arreare) grants over, the tenant attournes, the grantor dyes, his Executors are not within the Statute, for by the grant the arrera­ges are lost, and were not due to the testator tempore mortis, as the Statute speakes; and after the grant the testator could not distraine for the arrerages; and the act gives remedy onely, where the arrerages are due, and become remedilesse by the act of God.

Sharpe and Pooles case, 17. of the Queene; a rent was granted to a woman for life, 'tis arreare, she takes husband, 'tis arreare, the wife dyes, the husband brings debt against the heire being terrtenant, for all arrerages: Resolved, that for the arrerages before the marriage he had no remedy at common Law, but for the other he had debt.

Objected, that the husband shall not have the ar­rerages due before by this Statute; 1. Because at common Law the Executors of the wife may have an action for them, and the Statute gives remedy, when Executors cannot have an action, and doth not intend to toll the remedy from the common Law. 2. The branch says (due in the wives life) so the arrerages ought to incurre, when she is his wife. Resolved to the contrary, for the Statute says (due and unpaid in the wives life) and the common Law gives remedy for the arrerages of an estate for life incurred in the life of the wife, and therefore the Statute did not in­tend to extend to these arrerages, but to the arrera­ges due before, for, Verba accipienda sunt cum effectu.

Resolved, that a Feme covert cannot make an Ex­ecutor without assent of her husband, and the admi­nistration of her goods of right belong to the hus­band. And the Statute in naming the woman (wife) intends noely to describe and designe the condition of the womaln, not to imply that the arrerages ought to incurre during coverture.

Rawlins case 29. & 30. of the Queene. fo. 52.

A. Possessed of a house for thirty yeares (except a Stable of which B. was possessed for two yeares) granted all his interest to C and demised the Stable to B. for sixe yeares by Indenture after the end of the two yeares; C. redemises all to A. for twenty one yeares, rendring twenty pounds per an­num, and to pay a Fine of twenty five pounds, upon condition for to reenter for non payment of the rent, or Fine; before the day of payment, A. redemises the Stable to C. for ten yeares, the rent was behinde, the Fine was not paid, C. enters not into the Stable, nor B. attournes.

Resolved, that where the verdict was entered three termes past, and in the Roll the demise to B. for six yeares was not enterd to be by Indenture, that the Roll shall be mended, because the note of the speci­all verdict, which the Jury exhibited to the Court, remaining with the Secondary, purports that the Ju­ry found the demise prout; by which it doth appeare to the Court, that the demise was shewne in evi­dence, and reference made by the note to it; and so 'twas in Gomersalls case.

Resolved, though the condition is of two parts in the dis-junctive, for non-payment of rent, or of the summe in grosse, yet, if A. had redemised any part of the house to C. and C. enters, by which the rent is suspended, that all the condition as well for the col­laterall summe, as for the rent is also suspended, be­cause the condition is intire, and cannot be divided by the act of the parties. Resolved, that if A. had re­demised any part to C. though C. never enters, the rent is suspended, and though a stranger occupy it.

Resolved, that the lease by A. to B. for six yeares, though he had nothing at the time, was good by con­clusion by the Indenture, and when C. redemised all to A. then was the interest bound with this conclusi­on, then when A. redemises to C. the Stable, C. is also concluded, for all parties and privies in estate or interest are bound by the Estoppell; then the case is no other, but that A. demises for six yeares the Stable to B and after demises to C. for twenty yeares (which is a good Lease in reversion for fourteene yeares) this is no suspension of the rent, or conditi­on, for 'tis no grant of the reversion, but a future in­terest in reversion, no terme, but an interest of a terme, as the pleading is, and notwithstanding such grant, the reversion is in the grantor, without at­turnement, and he shall have the rent upon the first [Page 147] lease, but if there be an atturnement, the reversion passes, and suspension will follow. And therefore 'twas agreed, if a man leases for twenty one yeares rendring rent, and a reentry, the lessee leases to the lessor for six yeares, to commence two yeares after, the rent is arreare, and by this he shall defeate the future interest vested in him.

Resolved, that this Estoppell being found by ver­dict, the Court ought to judge upon all the speciall matter, according to Law, and because they are sworne ad veritatem dicendam, they did well to finde the truth of the case, and leave it to the Court; by Wray chiefe Justice in Pledalls case the Jury was at­tainted, for not finding such a lease by conclusion, intending [...] they (being sworne ad veritatem di­cend'.) [...] not bound to finde it; for the Court held that the interest of the land as to parties and privies was bound, and no conclusion shall be by such Indenture, after the terme ended, by Wray.

Resolved, if lessee for twenty yeares, leases for two yeares rendring rent, and grants all his terme and interest, if the lessee attournes, the reversion pas­ses, and if no attournement be, yet the interest in re­version passes, for the grant of a man shall not be ad­judged voyd, if, to any intent, it may take effect.

Resolved, if lessee for twenty yeares of a house, leases part for two yeares, and after leases to another all for ten yeares, rendring rent, so that it inures as a Lease in reversion for part, that the rent shall issue out of all, and of the interest of the terme, though it be not any estate that may be surrendred, and though it be conjoyned with land in possession.

Error was brought upon this judgement, and this error assigned; for that R. the plaintiffe was an In­fant, and was admitted by his Gardian, and no Re­cord made of it, as 'tis used in Banco, but onely reci­ted [Page 148] in the Count, J. R. per A. B. gardianum suum (ad hoc per curiam specialiter admissum) queritur. Which was disallowed by all the Justices, upon search and view of many presidents, which make a Law in this Court, yet some presidents were as in Banco.

Note (Reader) according to the opinion of Wray 'twas resolved in Londons case, that if a man takes a lease by Indenture, of his own land, this is an Estop­pell but during the terme, and then both parts of the Indenture belong to the lessor.

Wardens and Commonalty of Sadlers case. 30. of the Queene. fo. 54.

BY Mandamus 'twas found before B. M [...]yor of Lon­don, Escheator of the City, and th [...] inquisition was returned in Chancery, that T. C. held of the King, &c. and dyed seised without heire, the War­dens, &c. shewed their right that R. M. was seised in fee, and devised to them in fee, and that they were seised till by C. disseised, and shew the custome of London, that a Citizen and Freeman may devise in Mortmaine, and averred that R. M. was, &c. Tempore mortis; and upon this, great question was, whither a Monstrans de droit lyes, or it ought to be by Pe­tition. See the Case at large for this Learning, Bere­block and Redes Case was cited to be adjudg'd, if A. be bound in a recognizance, Statute, &c. and after a recovery in Debt is had against him, and he dyes, his Executors ought first to pay the Debt upon the Recovery, though it be puny to the Sta­tute, &c. for though both be Records, yet the judge­ment in the Court upon judiciall and ordinary pro­ceeding is more notorious and conspicuous, and of more high and eminent degree then a Statute, &c. taken in private, by the consent of Parties.

Forse and Hemblings Case. 37. Eliz. in com. Banc fo. 60.

ALice Allen seised of certaine Messuages in Fee maketh her will in Writing, and thereby de­miseth that if James Amynd doth survive her, that then she doth demise and bequeatheth the same messuage to him and his Heires. And afterwards the said Alice did Intermarry with the said James, and during her coverture, she said often the said James should never have the said Messuage by her said Will; Alice dyed without issue, and James survived, and the Question was, whither the Will was countermanded by the said Marriage, or not, and if not, whither by the words of revocation after the Marriage, was a Countermand and it was adjudged upon great de­liberation, that the taking of a Husband, and the coverture at the time of her death, was a counter­mand of the Will. For the making of a Will is but an inception thereof, and it doth not take any effect untill the death of the Devisor. For, Omne testa­mentum morte consummatum est, & voluntas est ambula­toria us (que) extremum vitae exitum. And it should be against the nature of a Will, to be so absolute, that he that made the same, being of sane memory, may not countermand the same. And therefore the ta­king of her Husband, being her owne proper act, doth amount to a countermand in Law: Also 'twas said, that after Marriage all the will of the Wife in judgement of Law, is subject to the will of her Hus­band, and a Feme Covert hath no Will, and there­fore the Countermand after Marriage was of no force, Quod fuit concessum per tot. Cur.

Harlakendens Case, 31. El. In banco regis. fo. 62.

THe Earle of Oxford leased to A. B. and C. (ex­cept the Trees) for 21. yeares, C. assigned to D. the Earle sells the Trees to A. B. and D. they leased to E. and after sell the Trees, the Vendee cuts them, the Lessee brings Trespasse. When a man maketh a Lease for life or yeares, the Lessee hath but onely a speciall interest or property in the Trees being Timber, as things annexed to the Land, but if the Lessee or another severs them, the pro­perty and interest of the Lessee is determined and the Lessor may take them, as things which were par­cell of his Inheritance.

It was also resolved that this clause (without impeachment of wast) doth not give to the Tenant for life, any greater interest in the Trees, then he had by the demise of the Land, but onely that it will serve, that he shall not be impeached in any action of Wast, or to recover damages or the place wasted. This is adjudg­ed otherwise by all the Judges of England, in Lewes Bowles Case, in the 11. Report. It was also resolved that if an House fall by tempest or other act of God, the Lessee for life or yeares hath a speciall interest to take Timber to reedifie the same, if he will. But if the Lessee suffer the House to fall, or take it downe, the Lessor may take his Timber as parcell of his Inheritance, and the interest of the Lessee is determined, and he may have wast, and treble damages.

Resolved, that the Lessee by the grant had an ab­solute property in the Trees, so that by the Lease of the Land, they did not passe, and he hath not equall ownership in both, and it should be a prejudice to [Page 151] him if they should be joyned to the Land, for then he could not cut, during the terme, without wast, and after he shall not have them, and the Lessor shall not have them against his owne act And here A. B. and D. were Tenants in common of the Land, and joyntenants of the Trees, and so their interest of se­verall qualities, and therefore cannot be a union be­twixt them, but upon a feoffement, if the Feoffor accept the Trees, they are in property divided, though, In facto, they remaine annexed to the Land, for it is not felony to cut them, &c. and if the Feof­for grants them to the Feoffee, they are reunited in property, as well as De facto, and the Heire shall have them, not the Executors, for the feoffee hath an ab­solute ownership in both, and it is more benefit to him that they are reunited.

It was resolved, That if Tymber Trees be blowne downe with the winde, the Lessor shall have them, for they are parcell of his inheritance, and not the Tenants for life, or yeares, but if they be Dotards without any Timber in them, the Tenant shall have them.

It was adjudged that wast may be committed in glasse in the Windowes, for it is parcell of the house, and discends as parcell of the inheritance to the Heire, and the Executors shall not have them al­though the Lessee put the glasse in the Windowes at his owne cost, and if he take them away, he shall be punished in wast. And 42. Eliz. in com. Banco. It was resolved that Wainscote, whither it be annex­ed to the house by the Lessor or the Lessee, is parcell of the House, and there is no difference in Law, whi­ther it be fixed with great Nailes or little Nailes, or Screws or Irons put through the Walls, for if it be fixed by any wayes or meanes to the house or Posts, or Walls thereof, the Lessee may not remove it, but [Page 152] he is punishable in an action of wast. For it is par­cell of the house, and by Lease or grant of the house in the same Mannor (as Sealing or Plaistering) it shall passe as parcell thereof.

Fulwoods Case, 33. of the Queene. fo. 64.

C. Acknowledged a recognizance of 250. li. to the Chamberlaine of London, and his Successors, after acknowledges a Statute of 200. li. before the Recorder of London, and Major of the Staple to A. after A. sues Execution by Liberate, but it doth not appeare that it was ever returned, after the Succes­sours of the Chamberlaine, sue Execution, by pre­cept to the Serjeant of the Mase in nature of an Ele­git, and hath a moyty, C. dyes his Wife recovers Dower, and had this house assigned for her third part, she dyes, the Chamberlaine assignes to Fulwood after A. assignes also to F. after the Heire of C. de­mises to B. &c.

Resolved, that the Successors of the Chamberlain-shall have this recognizance, though a body solee for that the Corporation was by custome to diverse; purposes, for Orphanage, for the recognizance was acknowledged for Orphanage money, and the same custome inables the Successors to take such an Obli­gation, &c. otherwise of a Bishop, Parson, &c. and that the Execution by the Serjeant of the Mase, was good, notwithstanding the Statute of W. 2. ca'. 18. which saith, Vic'. liberet ei medietatem, &c. By rea­sonable extent, to wit, by inquisition of honest men, and the Sheriffe is sworne, and the Serjeant is not sworne to take the Jury, &c. For the Statute ex­tends to every other immediate officer, to any Court of the King of record, &c. Resolved, that execu­tion of the Elegit was good enough, without suing a [Page 154] Scire facias against A. being in by matter of Record; bu 'twas said, if the Sheriffe had returned the for­mer execution, he ought to have a Scire facias; by the Court, if the Sheriffe makes execution, 'tis good.

Resolved, that the Verdict was good, which finds, that C. acknowledged a recognizance before the Maior, though not said secundum formam Statuti. nor, per scriptum suum obligatorium, for being the trover of lay People, it shall be intended according to the Sta­tute. Resolved, that the Conusee cannot have aide of the Statute of 32. H. 8. ca'. 5. for which, see the Booke at large.

Resolved, that if a man be bound in two Statutes, and the latter Statute be first extended, and deliver­ed in execution for a longer time, and a greater sum then the first was, yet when the first Statute is satis­fied, and his interest lawfully determined, the se­cond Conusee shall have the Land againe, by force of the first extent. It was resolved Per tot. Cur. that the execution of a liberate is good, although the Writ be not returned, and so of a Capias ad satisfacien­dum, and an Habere fac'. sec.' seisinam, and other writs of execution. And that the Conusee shall hold the Land, not onely untill he be satisfied for damages for detayning of the Debt, and costs of Suite, but also for his reasonable Labours and expences, looke the words of the execution; and being in by mat­ter of record, the conusor must bring his Scir. fac. but in Case of an elegit, the Conusor after satisfacti­on may enter, for there is no costs and damages, but the meere Debt.

Hyndes Case, in com. Banco. 33. Eliz. fo. 70.

WIlliam Hawe seised of certaine Lands by deed, indented demised the same to Robert Ger­rard [Page 154] for 16. yeares, who assigned over to Elizabeth Hynd William Hawe afterwards by bargaine and sale in consideration of money due, sould the reversion to one Libb, and before the same was inrolled, the said William Hawe, leavyed a fine to Libb, and his Heires, &c. and after the leavying of the fine the said Indenture of bargaine and sale was inroled with­in six Moneths, according to the forme of the Sta­tute, and Elizabeth Hynd the Tenant, did not atturne. The question was, Whither the Conusee of the fine after the said Indenture inrolled, Shall be in by the fine and by the bargaine, and sale? for if he shall be adjudged to be in by the fine, no action of wast lyeth, for default of atturnement, and if he shall be in by the Indenture inrolled, then there needeth no atturnment. And it was resolved, Per tot. Cur. that when Hawe by deed indented did bargaine, and sell the reversion to Libb, and his Heires, and before the inrollment leavyed a fine to Libb, and his Heires, and after the Deed is inrolled, (within six moneths) that the Conusee shall be in by the Fine, and not by the Deed inrolled, for the Fee simple passeth by the fine to the Conusee and his heires, and after the inroll­ment of the deed may not divest and turne the e­state out of himselfe, which was absolutely establish­ed in him by the fine, for when the common Law and the Statute Law concurre, the common Law shall be preferred. And it is true, that the inroll­ment shall have relation to the delivery of the Deed. But that is onely to avoyd estates, or charges made of the same thing by the bargainor, to strangers after the delivery of the Deed, and before the inrollment, but not to divest any estate lawfully setled in the in­terim, in the bargainee.

The Records are so high and sacred that they im­port in themselves inviolable verity, which if any [Page 155] man dare to gainsay, the Law doth attribute so great honor, to them, that they shal be tryedonely by them­selves, and not by the Countrey, and if averrement against a Record should be permitted, then the ef­fect and validity of the record should be tryed by the Country, which is against the rule of the Law, Nul­lum iniquum est in jure presumendum. Yet, resolved in this Case, that the Lessee shall be admitted to a­verre that the Deed was inrolled, after the Fine, and not before, because it stands with the Record, and doth not impugne any thing within the Record, and great inconvenience would follow, if such averre­ment should not be admitted.

Boroughes Case, 38. Eliz. In Banco Regis. fo. 72.

REsolved, that the rent reserved upon a demise ought to be demanded, if the Lessee will take advantage of a condition for non payment of the same, and the demand to be made at the place limit­ted for the payment of the rent, although there be no words of demand in the demise, and although it be out of the Land demised, but in the Kings Case it is otherwise. Prerogativa Regis, for there the rent upon a reentry reserved ought to be tendered; and in such Case, the Pattentee of the King, shall demand the rent upon the Land.

Resolved, if the Queene leases rendering rent, without limitting any place, or to whose hands, the Lessee may pay it at the Exchequer, or to the Bay­liffes or Receivers of the Queene, and when shee so appoints it by expresse words, 'tis no more then the Law appointed, and though the words be (Ad re­ceptum scacc'. apud Westm.) it needs not that the re­ceite be holden at Westminster, the Law would have implied that. And when a common person ap­points [Page 156] no place, the Law appoynts the payment up­on the Land.

Palmers Case, 39. Eliz. in Banco regis, fo. 74.

THe Sheriff by vertue of a Fier. Faci. may sell a Lease of the Defendant, and in his Writing the true commencement and terme of the Lease must be expressed, or else, if he selleth all the interest that the defendant hath in the Lands, he needeth not to make any mention in the returne, but gene­rally Quod fieri fecit de bonis & catallis, &c. But an inquisition found that the Debtor of the King was possessed. Pro termino quorundam annorum, &c. 'twas void, for a terme cannot be extended without shew­ing the certainty of the commencement, for after the Debt satisfied, he is to have the remainder.

Resolved, for that the case at Barre was an exe­cution by Elegit, which ought to be made by in­quisition; the sale here was voyd, for the terme was mistaken in the inquisition, and so mistaken was apprised by the inquisition, and the Sheriffe cannot sell any terme, but that onely which was apprised by the Jurors.

Hollands Case, 39. of the Queene. fo. 75.

REsolved, that before 21. H. 8. ca'. 13. if he which had a benefice with cure, accept another with cure, the first is void, but this was no avoyd­ance by the common Law, but by constitution of the Pope, of which the Patron might take notice if he would, and present, without deprivation, but be­cause the avoydance accrued by the Ecclessiasticall Law, no Lapse incurred without notice, as upon a deprivation, or resignation; so, that the Church was [Page 157] voyd for the benefit of the Patron, not for his dis­advantage; But now, if the first benefice be of the value of 8. l. per annum, the Patron at his perill ought to present, for to an avoydance by Parliament, every one is party, but if not of 8. l. 'tis voyd by the ec­clesiasticall Law, of which he needs not take notice. Resolved, that 21. H. 8. is such a generall Act, of which the Judges Ex officio (though it be not plead­ed) ought to take notice. See the Booke at large upon this Learning, what act shall be said a generall act? Of which the Judges are bound to take notice, what not?

The Case of Corporations, 40. and 41. of the Queene. fo. 77.

REsolved, that where diverse Citties, &c. are in­corporated by the name of Mayor and commu­nalty, Mayor and Burgesses, &c. and in the Char­ters 'tis prescribed that the Mayors, Bayliffs, &c. should be chosen by communalty and Burgesses &c. which is as much as to say, as by all the Burgesses, or all the communalty; that yet the ancient and usuall Election, by a certaine selected number of the prin­cipall, of the communalty, &c. (Commonly call'd the Common-Councell) and not by all of the com­munalty or so many of them as will come to the E­lection, was good in Law, and warranted by their Charter; for, in every Charter they have power given to them, to make Lawes, Ordinances, and constitutions, for the better government and ordering of their Citties and Boroughes: by force of which, and to avoyd popular confusion, they, by their common assent have instituted, &c. that the electi­on shall be by such a select number. And though this ordinance cannot be now shewne, yet, it shall [Page 158] be presumed that such ordinance and constitution was made at first.

Digbyes Case, 41. Eliz. fo. 78.

IT was adjudged, that when a man hath a bene­fice with cure, above 8. l. and afterwards taketh a­nother with cure, and is presented and instituted, and before induction procure the Letters of dispen­sation, that this dispensation commeth too late, for by the institution, Ecclia plena & consulta existit, a­gainst all persons but the King, for every rectory consisteth upon spirituallty and temporallty. And as to the spiritualty, Viz. Cura animarum, hee is com­pleat Parson by the institution, for when the Bishop upon examination had, admitteth him able; then he doth institute him, and saith, Jnstituo te ad tale bene­ficium & habere curam animarum, of such a Parish, & ac­cipe curam tuam, &c. Vide 33. H. 6.13. But touching the temporallties as the Glebe Lands, &c. hee hath no freehold in them, untill induction, for by the gene­rall councell of Lateran. Anno. Dom. 1215. it ap­peareth that by the acceptance of two benefices the first is voyd. Aperto jure, for upon this Councell are our Bookes in this case founded. And 'twas resol­ved, that this was an acceptance of a benefice. Cum cura, within the Statute of 21. H. 8. Institution is an acceptance by our Law; and 'twas lately adjud­ged that if before induction, the Clerke be inducted to another, the first is void by 21. H. 8. which saith, (Accept and take another) and for that now the a­voidance is declared by 21. H. 8 he is bound to take notice, but till after induction, &c.

Nokes case, 41. Eliz. fo. 80.

A Man maketh a Lease by these words. (Viz.) Demise, &c. Grant, &c. and Covenants that the Lessee shall injoy without eviction, by the Les­sor or any claiming under him, and was bound to performe all covenants, &c. the Lessee assignes his terme, a stranger enters upon the Assignee, and re­covers in an Ej firmae, after ouster, the first Lessee brings Debt. This is a covenant in Law, and the as­signee shall have a writ of covenant 9. Eliz. 257. Dyer. And if a man be bound by obligation to per­forme all covenants, grants, &c. This doth extend as well to covenants in Law, as to Covenants in Fact.

Resolved, though the recovery were by verdict, yet he ought to shew that the Plaintiffe in this re­covery had an elder Title, for otherwise the Cove­nant in Law is not broken. It was holden that an expresse Covenant doth qualify the generallity of the Covenant in Law, and restraineth that by the mutuall consent of both parties, but a warranty in Law, and an expresse warranty, the party may choose whither he will have, for this word Dedi importeth a warranty.

Sir Andrew Corbets Case, 41. and 42 of the Queen fo. 81.

A Devises Land to B. &c. to have, &c. till 800. l. shall be paid by them of the profits to marry his Daughters, and dyes, the Heire conceales the Will, takes all the profits, and dyes, the will is found by office, the Devisee enters, and hath leavyed 640. l. and imployes it accordingly; whither the profits ta­ken [Page 160] by the Heire shall be parcell of the 800. l. was the Question.

Resolved, that the words (shall be leavyed) shall be construed (shall or might be leavyed) and so 'twas holden of a Lease or limittation of a use, o­therwise, he which is to leavy the Summe, by defer­ring to doe it, may exclude the reversioner for ever: see the Booke at large. Resolved, when the heire or reversioner, &c. enters, and expulses him, to whom the Land is limitted, he hath election to recover the Mesne profits, in an action, or reentry, and retainer, till he leavyes the inteir Summe, and the other shall not have advantage of his owne wrong, and if a stran­ger had entered, and occupied, the Devisee ought to have taken notice at his perill, for Vigilantibus & non, &c. and none is bound to give notice, but here the Heire himselfe concealed the will, and the De­visee had no remedy, for the Mesne profits after the death of the heire. Resolved that a Gardian shall not ouste Tenant for life, nor yeares of the Tenement.

Resolved, that admitting the Gardian shall ouste Tenant for yeares yet he shall not hold over, because his terme is certaine in the commencement, conti­nuance, and end; otherwise of Tenant by Elegit, Statute, &c. they shall hold over, because the terme is uncertaine.

Southcots Case, 43. Eliz. in banco regis. fo. 83.

IF A. doe deliver goods to B. for to keepe, the goods be purloyned away, yet B. shall be charged in a Writ of detinue. For, to keepe, and to keepe safely is all one, but if B. doe take them to keepe as his owne goods, he shall not be charged with them. And if A. doe pledge or Guage goods unto B. in [Page 161] this Case B. shall not answer for them, if they be purloyned, for he had some property in them, and not a custody onely, but a ferryman a common In­keeper, or a Carrier, which taketh hyre, they ought to keepe the goods safely, and they shall not be dis­charged, if they be stollen or purloyned. But a Fa­ctor or a Servant (although he have wages) doing his indeavour, shall not be charged.

Luttreles Case, 43. Eliz. in banco regis. fo. 86.

IF a man have estovers eyther by grant or prescrip­tion to his house, although he alter the Rooms, and Chambers in his House, it seemeth that the al­teration of the qualities, so as it be not of the house it selfe, and without making new Chimnyes, by which, no prejudice accrewes to the owners of the Wood, is not any destruction of the prescription, and though he make new Chimnyes, or make a new addition to his old house, he shall not loose his pre­scription thereby, but he may imploy or spend any of his new estovers in the Chimnyes, or in that part newly added. It was also resolved, that if a House or Milne doe fal, or be taken downe by the act of the owner, or by wrong of another, yet for that the per­durable part, which includes all, doth remaine, which is the Land, whereupon the Fabrick is built, he may reedifie the same againe without any Losse of his apendant or apurtenant, but it ought to be upon the same place which was the Foundation of the old House, for as it did support, and in judge­ment of Law included the ancient house when it was standing, so it supports and includes the new house, so as it is in a manner a continuance of the an­cient house.

Diverse Tenants doe hold of another, as of his [Page 162] Mannor by fealty and suite to the Lords Milne, the Lord doth alien his Milne with the suite of his Te­nants, and after, the vendor dyeth, and his Sonne entereth and buildeth a new Milne upon the other part of his demeane, he shall have the suite to his owne Milne, which the Vendee had before, for the suite belongeth to him that hath the Mannor, for no man may have suite to his milne, by reason of a Tenure, If it be not of Corne growing upon the Lands, within the Seigniory or Mannor, and the Lord may erect a new Milne within any part of the Mannor, and the Tenure is due to the same, and not to any particular Milne.

Druries Case, 43. Eliz. Error in Banco Regis. fo. 84.

A Countesse being a Widdow retaineth three Chaplaines, he who is last reteined, is not capa­ble of a dispensation, for the Statue of 21. H. 8. c. 13. is executed by reteining of two, and the retein­ing of the third, shall not devest the capacity, which was in the first two, but if the reteiner had beene at one time, he who is first promoted, shall be first preferred, because in Aequali jure, &c. 2. Resolved, if the two first die, the third is not capable of dis­pensation without a new reteiner, because he was reteined at the common Law, and not according to the Statute, Quod ab initio non valet, &c. As if the Sonne and Heire of a Baron reteineth a Chaplaine and giveth him Letters under his Seale, and after the Father dyeth. And it was said, that the said Act shall be taken strictly; as if a Baron be made Gar­dian of the 5. parts, he shall reteine no more Chap­lains then before, and if a Baron retaine two Chap­laines who are promoted, he cannot discharge them, and reteine others, during their lives.

Slades Case, 44. Eliz. fo. 92.

IT was resolved that every contract executory im­ports in it selfe an assumpsit. For when one doth agree to pay money, or to deliver any thing, by that he doth assume and promise to pay or to deliver the things, and therefore when he selleth any goods to another, and agreeth to deliver them at a day to come, and the other in consideration thereof agre­eth to pay so much money, at such a day; in this case both parties may have an Action of Debt, or Action upon the case, upon the assumpsit, for the mutuall executory agreement of both parties, im­port in themselves as well a reciprocall Action upon the Case, as an action of debt and a recovery or barr in an action of debt, is a good Barre in an action up­on the Case, brought upon the same contract, and so likewise in an Action upon the Case, a recovery or Barre, in the same, is a good plea in an Action of Debt, upon the same contract.

The Defendant in an Action of the Case upon the assumpsit may not wage his Law, as he may doe in an action of Debt.

If a Summe of money be promised in Marriage, to be paid at severall dayes, an Action upon the as­sumpsit lyeth for non payment of the first, although no Action of Debt lyeth, untill all the dayes be past, Multitudo errantium non parit errori patrocinium, and if the Debtor of the King sueth by Quo minus, in the Exchequor, the defendant shall not have his Law for the benefit of the King.

Adams and Lamberts Case, 44. and 45. Eliz. in banco Regis, in Ejectione firmae. fo. 104.

UPon consideration of the Statute of 1 E. 6. cap. 14. it was resolved.

1. That if one demise to any of his Kindred, to superstitious uses, although he limit them to pay certaine Summes of money to the said uses, yet these Lands are given to the King, for it shall not be in­tended to be upon other consideration, but that which they at that time conceived to be the service of God, which is the most worthy consideration, and the reason wherefore the demise was made to his Friends was, because he imposed more trust in them then others, therefore the persons shall not be re­garded.

2. A demise of an estate for life, or in taile is within this Statute by equity, although that the Statute saith, To have continuance for ever, for the in­tent of the Statute was, to tolle such uses, and regar­deth not the time of their continuance.

2. An estate taile may continue for ever, and so was the intent of the devisor in this case, that the uses should continue for ever, for he limits his heire to doe it. 3. Without this construction the Statute should be defrauded.

3. The Statute giveth to the King, Lands given for the finding of a Priest, and giving of Lands upon condition to find a Priest, is within the Statute, for this is more compulsory then the other.

4. All the Land is given to the King, but not by the first Branch, for that extends onely to law­full Chanteries, or those who have countenance of lawfull comencement, but not to such who are with­out any colour of lawfull comencement: as if they [Page 165] were founded by license of the Pope, this chantry is without colour of lawfull comencement or founda­tion: also if Lands be given to the finding of a chan­tery without Corporation, this is out of the said Branch. Neither by the second Branch, for that giveth the Lands belonging to such Colledges to the King, without which, he shall have onely the Scites; but by the third Branch; for this extends to finding of a Priest without Corporation. But 'twas objected, that the Land was not given to the finding of a Priest, for he had but a pension out of it, and the Statute is, that the King shall have in as large, &c. as the Priest had it. 2. Here is a good use li­mitted, six pence by the Weeke to six poore men, and although it be Ad orandum, &c. this is not within, for it is out of the Statute, except that Ori­sons be to be performed in publique. For answer to these, these differences were taken. 1. If one give 20. li. per annum, for the finding of a Priest, and limit to the Preist 10. li. per annum all is given to the King, for the residue shall be intended for the find­ing of necessaries: otherwise it is, if a condition be annexed to the gift, to give 10. l. per annum to a Priest, there the King shall have but 10. li.

2. Land of 20. l. per an. is given to find a Priest, with 10. l. thereof, and that the other ten pound shall be to the Poore, the King shall have but ten pound, but if it be for finding of a Preist, and main­tainance of Poore Men, without limitting how much the Priest shal have, the King shall have the Land for otherwise he shall have nothing. 3. If Land of 20. l. is given for finding Sallary for a Priest with 10. l. of it, and also a good use is limitted, there the King shall have but ten pound, although that other neces­saries are to be found for the Priest, because a good use in certaine shall be preferred before a superstiti­ous [Page 166] incertaine use; but if nothing in certaine be li­mitted to the Preist, the King shall have the Land. 4. If Land be given to find a Priest the King shall have it, but if a Priest have but a stipend, the King shall have but the stipend. 5. When a certaine summe is limitted to a Priest, and other good uses are also limitted, which depend upon the superstiti­ous use, all is given to the King. 6. If all the uses be superstitious, of what certainty soever they are, the land is given to the King, otherwise it is, if there be any good use, and as to that which was objected, that the King shall have no more then the Priest. It was answered, that that extends to the 1.2. and 4. Branches, and not to the third, for otherwise the King should never have the land it selfe, for this was never used to be limitted to the Priest himselfe.

And although that these Orisons are to be made out of any Church, yet it is within the Statute, for the words Church or Chappell, extend to Lamps and lights, and not to prayers. 2. The Statute speakes of an anniversary, &c or other like thing, and this is a like thing, but in the Case at Barre, if he had said that his Friends should have the residue of the profits of the Land, this had saved the Land.

Actons Case, 45. Eliz, com. banco in a Quare impe­rit. fo. 117.

A Noble Woman reteineth a Chaplaine who pur­chaseth a dispensation, she taketh a Husband, the Chaplaine is promoted to another benefice then that which he had before the reteiner, his first be­nefice is not voyd.

It was Objected that the Statute speakes of du­ches, &c. being Widdowes or Married under the de­gree of a Baron, and for that, when she Marrieth a­bove [Page 167] the degree she is out of the Statute, and 'tis not sufficient that she be within the Statute at the time of the reteiner, but she ought to be so also at the time of the promotion.

It was answered, that all which the Statute re­quires at the time of the reteiner, is, that she be a Noble Woman, Married under the degree of a Ba­ton, or a Widdow, and to be noble at the time of the promotion; therefore a noble Woman Married above that degree cannot reteine, or if at the time of the promotion she be not noble, as if her Earle be attainted, and although that Baron and Feme have but one body, yet they have two souls, wherefore it is not inconvenient that they should have severall Chaplaines, and the reason for which the said provi­sion was made for a noble Woman who marrieth an ignoble Husband was not to exclude those who married Nobles, but because such Femes are in Law ignoble (except they be noble by descent) and without such provision shall be out of the Statute: Baron reteineth a Chaplaine and dyeth, the Chap­laine may reteine both the benefices, but he shall be punished for non residency, without suing a non obstante.

Dumpors Case, 45. Eliz. banco regis in Trespas. fo. 119.

A Man maketh a Lease, provided that the Lessee or his assignes shall not alien the premises with­out speciall license of the Lessor, &c. The Lessor giveth license to the Lessee to alien the same, or a­ny part thereof, &c. in this Case the Lessee may a­lien and his assignes, Ad infinitum without any more license, and the proviso is determined.

The Lord Stafford made a Lease to three persons, upon condition that they, nor any of them should alien, without the consent of the Lessor, and after one of them did alien with his consent, and after the other two did alien without license, and it was adjudged 28. Eliz. that in this case, the condition being determined, as to one person, by the license of the Lessor, it was determined in all, for when the Lessee alieneth any part of the residue, the Lessor may not enter into any part aliened with license, and therefore the condition being determined in part, is determined in all, for the condition being entire, may not be apportioned, and 16. Eliz. Dyer. 334. fuit deny per Popham Chiefe Justice, Vide lit. 80. b. & 4. and 5. Ph. and M. Dyer. 152.

Bustards Case, 1. Jac. fo. 121.

IN every lawfull exchange of Land, this word Ex­cambium imports in it selfe Tacite, a condition and a warranty, and the other a Voucher and recom­pence, and all in respect of reciprocall considerati­on, the one land being given in exchange for the o­ther, but that is a speciall warranty, for upon the voucher he shall not recover other Lands in value, but those onely which were given in Exchange, and this warranty followes onely in privity, for none may vouch by force thereof, but the parties to the Exchange, and their heires and no assignes.

If A give in Exchange three acres of Land to B. for other three acres, and after one Acre is evicted from B. in this Case all the exchange is defeated, and B. may enter into all his Lands.

Beverleys Case. de non compos mentis in banco regis. 1. Jac. fo. 123.

EVery act that a man De non compos mentis doth, eyther concerning his Lands life or goods, ey­ther done in Court of record or out of Court of re­cord, all acts that he doth in any Court of record ey­ther concerning his Lands or goods shall bind him­selfe and all others for ever, and those acts which he doth out of Court of record, shall binde himselfe during life, and in some Cases shall binde all others for ever, so as the party himselfe shall not be admit­ted to stultifie himself or disable himself, but an ideot a nativitate may not make Feoffment, Gift, Lease, or Release, but it may be avoyded, during his Life, by office at the Kings suite, which shall have relation, a tempore Nativitatis, to avoyd all acts done by him, and after his death, the King shall deliver his Lands Rectis Haeredibus. foure manner of men, de non com­pos mentis 1. An ideot or foole naturally. 2. One which was of good and perfect memory, and by the visitation of God hath lost the same. 3. Lunaticus, qui gaudet lucidis intervallis, who somtimes is of good and perfect memory, and some other times Non compos mentis. 4. He that is so by his owne act as a Drun­kard.

All acts, which a Lunatick during the time of his Lunacy doth, and all acts which a mad man doth, who once was of perfect memory, and by the act of God, hath lost his understanding, are equivalent to the act done by an Ideot, but the act which a man doth, Qui Gaudet lucidis intervallis, at such time as he is of good and perfect memory, shall binde him and are good. And a Drunkard who for the time of his Drunkenesse is Non compos mentis, yet his drunken­nesse [Page 170] shall not extenuate his act or offence, but doth aggravate his offence, and doth not derogate from the act, which he doth, during the time of his drun­kennesse, and that as well touching his Life, Lands, and goods, as any other thing that concernes him. The King shall have the custody of the Land, goods, Chattells, &c. of one non compos mentis, to the use of him, his Wife, Children, and Family, a man non compos mentis, shall not loose his life for felony or murder, for no felony or murder can be committed, without a felonious intent and purpose, and he is deprived of reason, understanding, and intentions. Dicta est fellonia quia fieri debet felleo animo, & furio­sus non intelligit quid agit, & animo & ratione caret & non mulum distat a brutis, as Bracton saith, and stultus dicitur a stupore.

Spencers Case. 25. Eliz. fo. 16. Banco Regis.

A Lessee doth Covenant for himselfe, his Exe­cutors, and Administrators, with the Lessor, [Page 178] that he, his Executors or Assignes shall build a Brick Wall upon parcell of the Land demised, &c. after­wards the Lessee assignes over his tearme to B. in this Case B. is not bound to build the Wall.

When the Covenant extends to a thing In esse, parcell of the demise, then the thing to be done by force of the Covenant, is, Quodammodo, annexed and appurtenant to the thing demised, and shall run with the Land, and binde the Assignee, although he be not bound by expresse Covenant. But when the Covenant extends to a thing which had not essence, at the time of the demise made, that cannot be ap­purtenant, or annexed to a thing which had not es­sence. As if a Lessee Covenant to repaire the hous­ses to him, demised during the tearme, this is par­cel of the contract, &c. and shall bind the Assignee, although he be not bound expresly by the Cove­nant. But in this Case, the Covenant concernes a thing which had not essence at the time of the de­mise, but to be made after, and therefore it shall binde the Covenantor, his Executors and admini­strators, and not the assignee, for the Law will not annexe the Covenant to a thing which had not es­sence. It was resolved in this Case, if the Lessee had Covenanted for him and his assignes, &c. that in as much as it was to be builded upon the thing demi­sed, it should binde the assignee, by expresse words. Also, if a warranty be to one, his Heires and as­signes by expresse words, the assignee shall take be­nefite thereof, and have a Warrantia cartae.

But although the Covenant be for him and his Assignes, yet if the thing to be done be meerly col­laterall to the Land demised, and doe not concerne the same, the Assignee shall not be charged as if the Lessee Covenant for him and his Assignes to build a house upon the Land of the Lessor, which is not par­cell [Page 179] of the demise, or to pay any collaterall Summe of money to the Lessor, or to a stranger, this shall not binde the Assignee. Also in a case of goods, as Sheepe, Chattell, &c. there is not any privity or reversion in the Assignee, but meerely a thing in a­ction in the personalty, which cannot binde any but the Covenantor, his Executors or administrators, which doe represent him. The same Law is, if a man demise Lands for yeares with a stock of Cattle, or Summe of money rendring rent, and the Lessee Covenants for him, his Executors, Administrators, and Assignes to deliver the Stock of Cattle, or the Summe of money, at the end of the Terme, yet the Assignee shall not be charged with the Covenant.

This word (Concessi) or (Demisi) imports a Covenant, and if an Assignee of a Lessee be evicted, he may have a Writ of Covenant, so shall Tenant by Statute, or Elegit of a Terme, or he to whom the Lease is sould by force of any Execution, &c.

If a man grant to a Lessee for yeares, that he shall have so many estovers, as shall serve to repaire his House, or that he shall burne within his House, or such like during the Tearme, that is appurtenant to the Land, and shall run with the same as a thing appurtenant, in whose hands soever the same com­meth.

Assignee of an Assignee, Executors of an Assignee, ASSIGNES of Executors, or Administra­tors of every Assignee, may have Action of Cove­nant, for all are comprised within this word (As­signees) for the same right that was in the Testa­tor, or intestate shall goe to the Executors or admi­nistrators. It was resolved, That the Act of 32. H. 8. c. 24. extendeth onely to Covenants which touch the thing demised, and not to collaterall Covenants

Slingsbyes Case, 29. Eliz. fo. 18. Ʋpon error, in the Exchequer Chamber.

IF any party Covenantor in a Tripertite Indenture breake Covenant, all the rest of the parties, Co­venantees, are to maintaine the Action, notwith­standing the words of the Covenant, are Et ad & cum quolibet eo [...]um. But if a man demise to A black A­cre, to B. white acre, to C. greene Acre, and Co­venant with them, and every of them, in this Case, in respect of the severall interest by these words, And every of them, the Covenant is made severall, but if the demise be made to them joyntly, then these words in the Covenant (And every of them) are made voyd.

A man cannot binde himselfe to three, and to e­very of them, to make that joynt or severall at the Election of severall persons, for one selfe same cause, for the Court will be in doubt for which of them to give judgement

It was resolved, that an interest cannot be grant­ed joyntly and severally, as if a man grant, Prox im­am advocationem, or make a Lease for Terme of yeares of Land to two joyntly and severally, these words se­verally are voyd, and they are joyntenants; but a power and authority may be joyntly and severally, as to make livery, or to sell, for they have no inte­rest or Action, but are as servants to others. And judgement was reversed.

Rosewells Case, 35. Eliz. fo. 19.

BArgainor of Land covenanteth to make to the Bargainee such assurance as his Councell shall advise, the Bargainee himselfe cannot devise it, al­though [Page 181] he be Learned in the Law, for then it would be no good plea to say, Quod consilium non dedit advi­samentum.

Higginbottoms Case, 35. Eliz. Banco regis, fo. 19.

A Parson assumeth to I. S. to make him such an e­state in a Rectory, as the Counsell of the said I. S. shall devise, the Counsell shall be given to I. S. and he shall notifie it to the Parson.

Stiles Case, 38. Eliz. Banco regis, fo. 20.

A Charter with the words Haec indentura, without a manuall Act of indenting of the paper or parch­ment, is not an Indenture.

Sir Anthony Maynes Case, 38. Eliz. fo. 20. Error in Banco regis.

SIr A. M. Leaseth to S. for twenty one yeares, and bindeth himselfe to make a new Lease unto him, upon surrender of the old; and Leaseth to another for 80. yeares by fine. Scott the first Lessee bring­eth debt, and had judgement. If you be bound to enfeoffee one in the Mannor of D. before such a Feast, if you make a Feoffement to another of this Mannor, before the same Feast, you have forfeited the obligation, although that you purchase the Land againe, before the said Feast, because that you were once disabled to make the feoffement.

If a man Lease a Mannor for yeares, and the Les­see covenanteth to uphold the Houses, and to leave the same Mannor in as good an estate as he found it, and during the terme, the Lessee maketh wast in Houses, and cutting of Tymber, &c. the Lessor may [Page 182] have a Writ of Covenant before the end of the Tearme, for cutting the Timber, for it was impossi­ble that the Covenant should be performed after, for the Timber, but otherwise of the Houses, Fitz Na. br. fo. 145 K. It was also resolved, that if a man seised of Lands in Fee covenant to infeoffee I. S. upon request, and after he maketh a feoffement of the same to a Stranger, in this Case I. S. may have an Action of Covenant without request.

Laughters Case, 37. Eliz. fo. 21. Banco regis

WHere a condition of an obligation consisteth upon two parts in the disjunctive, and both possible at the time of the obligation made, and after one of them becomes impossible, by the Act of God, the obligor is not bound to performe the other part, for the condition is made for the benefite of the obligor, and shall be taken most beneficiall for him, and he had an Election eyther to performe the one, or the other, for the saving of his Obligation, but now, Impotentia excusat legem.

Hallings Case. 38. Eliz. Com. banco. fo. 22.

ONe Covenanteth to make an estate in Fee at the costs of the Covenantee, the Covenantor is to doe the first Act, Idest to Notifie what assu­rance he will make, that the Covenantee may know what summe to tender.

Mathewsons Case, 39 Eliz. fo. 23. Com. banco.

SEverall persons make severall Covenants in one Indenture, or Writing, the Seale of one of them is broken away, that shall not avoyd the Covenant [Page 183] of the rest, but onely the Covenant of him, whose Seale is so debrused, or defaced. Vide, Piggots Case, in the 11^th Report, because severall Cove­nants, otherwise if joynt.

Lambes case, 41. Eliz. fo. 23. com. banco.

A. Is bound unto B. to give unto B. such a release, &c. before the 22. day of October next, as by the Judge of the Prerogative Court is thought fit. In this Case A. must procure the Judge to doe it, or devise it, for the Judge is a stranger to the con­dition, and the condition is for the benefite of the Obligor, and he hath taken upon him to performe the same at his perill, but it is otherwise if the Obli­gee or his Councell should devise it.

Broughtons case, 43. Eliz. fo. 24. Banco regis.

IN an Action of Debt by Broughton Plaintiffe against Pretty, upon an Obligation, with condition, where the Plaintiffe was bound in an obligation of 200. l. for the Defendant, for the payment of 100. l. to C. if therefore the Defendant should save and keepe harmlesse the said Broughton, from all Suites, quar­rells, and Demands, touching the said Obligation, &c. that then the Obligation to be void, &c. at the day of payment of the 100. l. the Plaintiffe com­meth to the place where the 100 l. ought to be paid, and perceiving there not any person present to pay the 100. l. for the Defendant, Broughton to save the penalty of the Obligation, paid the money to C. and brought his Action upon the Counter-bond, and it was adjudged that the Plaintiffe should recover; for the payment of the 100. l. is damage and harme. And it is not necessary, whither the [Page 184] Plaintiff was arrested or sued, &c. Terror of suite, (so as he dare not goe about his businesse) is Dam­nification, although he be not arrested.

Deane & Chapter de Winsors Case, 44. Eliz. fo. 24. Banco regis.

A Man Leased a House by Indenture for yeares; the Lessee Covenants and grants for him and his Executors with the Lessor, to repaire the house at all times necessary, the Lessee Assignes over, and the Assignee suffereth the house to decay, the Lessor brought an Action of Covenant against the Assignee, and it was adjudged per Popham, and all the Court, that the Action lyeth although the Lessee had not Covenanted for his Assignes, because in respect thereof the rent is the lesse, which is, for the bene­fite of the Assignee, Qui sentit commodum sentire debet & onus. If a man grant one Estovers to repaire his house, this is appurtenant to the house, Fitz H. nat. br. 181.28. H. 8.28.

Sir Thomas Palmers Case, 43. El. fo. 24. banco regis.

SIr Thomas Palmer seised in Fee of a great Wood. Did bargaine and sell to one Cornford, and his Assignes 600. cords of Wood, to be taken by As­signement of Sir Thomas, Cornford assignes his interest to one Basset, and afterward Sir Thomas sells to one Maynard such quantity of Wood as will make 4000. cords at Election of the Vendee; and afterwards Sir Thomas assignes to Basset 600. cords of Wood, to be taken by him, who doth fall the same, and May­nard did take them away, and converted them, &c. an Action upon the case was brought by Basset, and iudgement was given for him, for Corneford had an [Page 185] interest which he might assigne over, and not a thing in action or a possibility, for it was resolved, if Sir Thomas did not assigne them to Cornford upon re­quest, Cornford might take them without assignment, for the Grantor cannot by his owne act or default eyther subvert or derogate from his owne grant. Therefore it ensueth, that Cornford had an interest that he might assigne over. If A. have a house and Land, and reasonable estovers in the Woods of ano­ther, by view and livery of the Bayliffe, &c. if A. take estovers without view or livery, &c. he is a tres­passor, although he take lesse then he ought to have by livery. But if A. demand his estovers and the Owner or his Bayliffe will not deliver to him, he may have an Assize. 2. If the Assignement were voyd, yet the Defendant cannot take Trees cut by ano­ther, but out of the residue of the Wood.

The Earle of Rutlands case, 2. Ja. fo. 25. banco regis.

EDward Earle of Rutland seised of the Mannor of Eykering, by Indenure dated 10. March. Anno. 21. El. for augmentation of the joynture of Issabell his Countesse, did Covenant with Sir Gilb. Gerrard, and Thomas Houlcroft his Brother, that before the end of Trinity terme, then next following, he would assure by fine, or other conveyance, the said Man­nor to the said Sir Gilb. Gerrard, and Thomas in Fee, which syne or other conveyance, should be to the use of the said Earle, and Issabell his Wife, and the Heires of the said Earle, which Indenture was ac­knowledged and inrolled in the Chancery, the 28. of the same Moneth of March, by another Indenture betweene the said Earle on the one part, and the Lord Burleigh on the other part, and Sir Gilb. Ger. and others on the same part, for the advancement of the [Page 186] Heires Males, of the said Earle, the Earle did cove­nant, &c. to convey the said Mannor amongst others, to the said Lord Burgleigh, Sir Gilb. Gerrard, and o­thers, or to any of them, before the Feast of the Annunciation of our Lady next ensuing, which As­surance should be to the use of the said Earle Edward and the Heires, Males of his body, and for want of such issue, to the use of the Heires Males of Thomas Earle of Rutland, with divers remainders over, and in the same Indenture, the said Earle Edward, did Co­venant, &c. to stand seised to the uses contained in the second Indenture. No fine or other assurance was leavyed or made by the said Earle Edward, be­fore the end of Trinity Tearme.

Afterwards, (Viz.) 17. Septemb. next follow­ing, the said Earle Edward, acknowledged a note of a fine of the said Mannor of Eikering, onely to Sir Gilb. Gerrard, and Thomas Ho: and the Heires of Sir Gilb. And the 18. day of the said Moneth acknow­ledged another [...]ote of a fine of the said Mannor of Eckering, amongst many other Mannors mentioned in the later Indenture to the Lord Burghley, Sir Gil. Gerrard, and other parties to the later Indenture, and both fines were entered in Octabis Mich. next after. And it was proved by diverse testimonies, that the said Earle Edward, as well before the In­dentures as after the fine leavyed, said, that the said Countesse should have the Mannor of Eckering. And it was resolved, by Popham chiefe Justice, and all the Court.

First, although the Indenture being made for declaring of uses of a subsequent fine, recovery or o­ther conveyance, to certaine persons, and within a certaine time, and to certaine uses, yet they are but onely directory, and doe not binde the estate or in­erest of the Land, yet if the fine, recovery, or other [Page 187] assurance be persued according to the Indenture, there cannot be any averrment made against the In­dentures taken in this Case; that after the making of the Indentures, and before the assurance by mu­tuall agreement of the parties, was concluded and agreed, that the assurance should be to other uses, but if other agreement or limitation of uses, be made by writing or by other matter of as high, or higher nature, then the later agreement should stand, for every contract or agreement ought to be dissolved by matter of as high nature as the first was. Nil tamconveniens est naturali aequitati quam unum quodq: dissolui eo ligamine quo ligatum est.

Also, it was very inconvenient, that matters in writing should be controuled by averrment of par­ties, to be proved by incertaine testimony of slip­pery memory, and should be perillous to purchasors, Farmers, &c.

2. It was resolved, that if the forme of the Inden­tures be not pursued (as for quantity of Land, the time within which the fine should be leavyed, &c.) Averrment without writing may be taken, that the fine, &c, was to other use, then was contained in the Indenture, by reason of a new agreement subsequent which in this case, may be as well by word as writing.

3. It was resolved, that although the indentures be not pursued, in circumstance of time, quantity, person, &c. yet if no other meanes new agreement be proved the fine, &c. in judgement of Law shall be to the use named in the Indenture. The fines can­not be directed by both the Indentures although perhaps it was the meaning of the parties, because the directions and declarations of the first Indenturs were controuled and frustrated by the said second Indentures.

Russells Case, 26. Eliz. fo. 27. banco regis.

A Release by an Infant Executor, under the Age of 21. yeares, is no bar, but upon payment or sa­tisfaction to an Infant Executor, he may acquite and discharge the Debt, for so much as he receiveth: All things that he doth according to the Office and duty of an Executor, shall binde him, an Executor may release before probate of Testament, for al­though he may not have an Action, yet the Interest of the Action is in Law in him at the time of the re­lease.

Middletons Case, 1. Ja. in com. banco. fo. 28.

IT was adjudged betweene Middleton and Rymot, that an Executor before probate may release acti­on, although that before the probate, he may not have action for the right of the Action is in him: but if A. release, and after take administration that shall not barr him, for the right of the Action, was not in him at the time of the release. Two Executors prove the Testament, the third refuseth, yet he may release Littlet. 117. if one be bound to pay a summe of money at a day to come, a release of actions before the day is a Bar, and yet before the day he could have no action.

Harrisons Case, 40. Eliz. fo. 28. com. banco.

IT was adjudged, that a judgement upon Debt due by obligation, shall be paid before a Statute [Page 189] made for performance of Covenants, which are things in contingency, and in future, or other Sta­tutes or recognizances for Debt vide Sadlers Case in the Fourth Booke, although the judgement be after the acknowledgment of the Statute.

Piggots Case, 40. Eliz. com. banco. fo. 29.

ONe bringeth Debt as administrator, Durante mi­nore aetate, of one whhom he averr'd to be with­in age, and he doth not say, that he was within the age of 17. yeares, and the Plaintiffe was barred, be­cause at that age the Administration ceaseth.

Princes Case, 41, & 42. Eliz. com. banco. fo. 29.

AN Infant is made Executor, Administration duran­te minori etate, may be committed to the Mo­ther or other Friend of the Infant, which shall cease and be voyd, when the Infant is at the age of 17. yeares, and this administrator may not sell any goods of the Decest, unlesse it be for necessity of pay­ment of Debts, for he hath his Office of administra­tor, Pro bono & commodo Infantis, and not for his pre­judice, also he cannot assent to pay legacies unlesse there be assents to pay Debts, &c. and if it be a Wo­man under the age of 17. yeares, and take a Husband of full age, the Administration ceaseth.

Where one hath goods solely, in an inferior Dio­ces, yet the Metropolitan of that Province, pretend­ing that he had Bona notabilia, in diverse Diocesses committed the Administration, &c. this Administra­tion is not voyd, but voidable by sentence, because the Metropolitan hath Jurisdiction in all places within his Province, but if the ordinary of one Dio­cesse commit the administration of goods, when the [Page 190] party hath Bona notabilia, in diverse Diocesse this ad­ministration is meerly voyd, as well for his goods within the Diocesse as without, vide, Vere & Jeffrays Case, 22. Eliz. in banck le roy, there cited and so ad­judged.

Caulters Cose, fo. 30. 40. & 41. Eliz. banco regis.

AN Executor in his owne wrong ought not to retaine goods in his owne hands to satisfie his owne just Debt, for every Creditor by such meanes when the goods be not sufficient, would strive to make himselfe Executor, De son tort, to satisfie himselfe, and barr others, &c. And it is not reason­able that one should take advantage of his owne wrong, Non facies malum, ut inde fiat bonum, & melius est omnia mala pati quod malo consentire. It is also cleere, that all lawfull acts, that such an Executor doth, or disseisor or an abator, &c. are good.

Hargraves Case, 41. and 42. Eliz. banco regis. fo. 31.

LEssor bringeth Debt against the Administrator of the Lessee for yeares, for rent due after the Administration committed in the Debet, and so it ought to be, because he himselfe tooke the profits, and nothing is assets in his hands, but the profits, besides the rent, but in all Actions brought by Exe­cutors (as Executors) the Writ shall be alwaies in the Detinet tantum, although the duty accrew in their owne time.

Pettifers Case, 45. Eliz. banco regis. fo. 32.

UPon a fieri facias de bonis, testatoris the She­riffe returneth Nulla bona, a Writ issueth to [Page 191] the Sheriffe to inquire by inquest, if the Executors have wasted, and how much who returneth that they have, and judgement given against them, De bonis pro­prijs, they bring error in redditione Executionis, and the Execution was reversed, for the course is, upon Nulla bona, to have a speciall Fieri Facias to make Execu­tion De bonis proprijs, if they have wasted, and if the Sheriffe so doth, where they have not wasted, they have remedy against him: but if he taketh an inquest, and returneth it, although it be false, there is no remedy against the Sheriffe, or any other.

Robinsons Case, 1. Jac, com. banco. fo. 32.

EXecutor brings Debt as Administrator, and is barred by Plea, that he is Executor, he may bring Debt, as Executor, for he was barred, as to the Action of the Writ, to have Debt as Administra­tor, but not to the Action.

Reades Case, fo. 33. 2. Jac. com. banco.

WHen a man dyeth intestate, and a strange per­son taketh the goods of the intestate, and u­seth them, or sells them; this maketh him an Exe­cutor of his owne wrong, for when none assumeth to be Executor, nor takes Letters of administration, there the using of the goods is sufficient to charge one as Executor, De son torte, for those to whom the Deceast was indebted unto have not any other in this case, against whom they may bring their actions, for recovery of their Debts. When an Executor is made, and he proveth the Testament, or assumeth upon him the charge, and doth administer, in this case, if a stranger take any of the goods, and claime them for his owne, this doth not make him an Exe­cutor [Page 192] of his owne wrong, because there is another lawfull Executor.

A lawfull Executor shall not be charged, but with the goods that come to his hands, after that he as­sumes upon him the charge of the Will, &c. but if another man first take the goods, &c. before the lawfull Executor hath assumed the Execution, or proved the Testament, in this case, he may be char­ged, as an Executor of his owne wrong.

Playters Case, 25. & 26. Eliz. Banco regis. fo. 34.

THe Defendant was found guilty in trespasse Quare clausum fregit & pisces suos cepit, and damages as­sessed intirely; it was moved in arrest of judgement, because in the Count, neither the nature nor the number of Fishes was shewed. It was answered by the Plaintiffe, That the Defendant is found guilty to damages, and so Non refert, of what nature or num­ber they are. 2. That the Fishes themselves are not to be recovered but damages for them, therefore no need to shew the certainty. 3. All the dama­ges shall be intended to be given for the close bro­ken, which is laid in the Declaration. 4. It is mat­ter of forme, ayded by the Statute of 18. Eliz cap. 14. But judgement was stayd, for the Office of the Declaration is to reduce the Writ to certainty, for otherwise upon such a generall Issue, if the Jury give a false Verdict, they cannot be attainted, and damages shall be intended to be given for all, be­cause [Page 193] they are intire, but if they had beene severed, the Plaintiffe shall recover for so much as is well pleaded, and this is matter of substance, and not of forme, because it is no default of the Clerke, but of the Plaintiffe, and therefore not aided by the Sta­tute.

Walcots Case, 30. Eliz. banco regis. fo. 36.

DEbt was brought against Baron and Feme, in the Detinet tantum, upon an Obligation by the Feme before Marriage; it ought to be in the Debet, and Detinet because the Baron had the goods of the wife in his owne right, and for that reason debt is brought against the Heire in the Debet, and this is matter of substance, and point of the Action, not remedied by the Statute of 18. Eliz. c. 14.

Baynehams Case, 30. Eliz. in Scaccar, fo. 36.

AN Ejectione firmae of Lands in A. B. and C. tryed for the Plaintiffe by a Visne out of A. onely, this is insufficient, and not remedied by any Statute.

Gardiners Case, 21. Eliz. Banco regis. fo. 37.

23. Jurors are returned, 12. appeare and finde for the Plaintiffe, this is remedied by 18. Elizabeth, cap. 14.

Bishops Case, 34. Eliz. banco regis, fo. 37.

VAriance is betweene the Writ and count in name, the Plaintiffe recovers, the Defendant bringeth Error, the Writ was remov'd into the Kings Bench, and the judgement was reversed, because the Statute [Page 194] remedieth where there is no Originall, but not where the Originall is vitious, and although it were remo­ved after pleading, &c. yet because the fault ap­peared to the Court, the judgement was reversed.

Teys Case, 34. Eliz. Banco regis fo. 38.

BAron and Feme levy a fine to one who grants and renders to them two, and to the Heires of the Baron, and after renders part to the Feme in taile, the remainder over, the Heire of the Husband brings a Writ of Error, and assignes for error the said Variance. 1. Resolved, that there needeth not a precise forme in render upon a fine, but it shall be in this case construed, as a grant by Charter, for it is but a grant of record.

2. There are five parts of a fine.

1. The Originall.

2. The License to accord, for which the Kings Silver is due, and ought to be entered upon the Writ of Covenant, and the summe, and he who payeth it, that is, he in whom the fee reposeth, the Plea, and betwixt whom, &c. and the Land ought to be men­tioned.

3. The concord, which is the substance of the fine, for if upon that, the Kings silver be paid, al­though the party dye, the fine is good.

4. The Note, which is many times taken for the Concord.

And lastly, the Foote of the fine, after delivery of the Indentures of the fine, the fine is said to be ingrossed.

3. The Conusor shall not assigne error in the ren­der, because it is to his advantage, and none shall as­signe Error, except it be to his disadvantage.

Dormers Case, 35. Eliz. Banco regis. fo. 40.

A Common recovery is had in a Writ of Entry, in the Post de uno annuali redditu sive pensione quatuor marcarum, and of an advowson, whereupon a Writ of Error is brought. 1. Because every Praecipe ought to be certaine, but here it is in the Disjunctive. 2. A Writ of entry in the Post lyeth not of an ad­vowson: But judgement was affirmed, and thereby 'twas resolved. 1. That a common recovery is not like to other recoveries, for it may be averred to an use. 2. It is by mutuall consent, & consensus tollit errorem. 3. A Writ of entry in the Post lyeth of an advowson common, &c. to suffer a common re­covery and not otherwise, for no other assurance can be had to barre the remainders.

2. The demand of the rent is good, for one of two things is not demanded, but one thing by two names, for rent and pension are Synonima, and the rather here, because it is said to issue out of Land, which a Pension properly cannot. 3. Common re­coveries are so usuall, that the Court shall take no­tice that they are common recoveries.

Rowlands Case, 35. Eliz. Banco regis. fo. 41.

A Pannell of a Jury is annexed to the Venire facias without returne, this is vicious and not remedi­ed by 18. Eliz. cap. 14. for that remedieth insuffici­ent returnes, but not where no returne.

The Countesse of Rutlands Case, 36. Eliz. fo. 42.

RObert Moore is returned upon the Venire facias, but in the panell before the Justices of Nisi pri­us, and in the Postea he was named Robert Mawre; if it appeare that Moore is his right name, and that it is he who was sworne, it is good, for by the common Law this was a discontinuance against all the Jurors, and discontinuances are ayded by the Statute, other­wise if he were misnamed in the Venire facias, and had his right name in the Panell and Postea.

Codwells Case, 36. Eliz. Banco regis. fo. 42.

A Juror who gave verdict, was misnam'd in the Venire facias, and had his right name in the Distringas, and Postea, and for that the judgement was arrested.

Nicholls Case, 38. Eliz. Banco regis. fo. 43.

C. Brings Debt upon a single Bill against N. who pleaded Payment without Acquittance, which was found for the Plaintiffe, although issue was joyned upon a point not materiall, yet after Verdict this is aided by 32. H. 8. and 18. Eliz.

Bohuns Case, 39. Eliz. fo, 43.

A Fine was levyed of a Mannor, and other Lands, to the value of twenty Marks per annum, so that the Kings silver is 40 s which was paid, but in en­tering of it upon the Writ of Covenant, the Mannor was omitted, and thereupon error was brought; but after that, the transcript of the fine was remov'd into the Kings Bench, the Judges of the common [Page 197] place amended the Record because it appeares to them that the Kings silver was payd for the Mannor, and where the Writ of Covenant was, Dede meipso, for, Teste meipso, they amended that also, and certifi­ed it into the Kings Bench upon dimunution, and al­lowed.

Freemans Case, fo. 45. 41. Eliz. Banco regis.

IN an original Writ &c. Quod nullus faciat vastum ven­ditionem et destrictionem, where it should be destructio­nem, the fault was onely in one Letter, the Court resolved upon good Consideration, that it was mat­ter of substance: for Destrictio is a Latine word, and altereth the sence of the Statute; and matter of Substance in an Originall Writ is not remedied, but matter of forme onely, Vide Statute 32. H. 8. ca. 30. & 18. Eliz. ca. 14.

If an Originall at this day want forme, or containe false Latine, or vary from the Register in matter of forme, after Verdict no judgement shall be stayed or reversed. But if it want substance, although it be the misprision of the Clerke, this is not remedied by any Statute.

Gages Case, 41. Eliz. Banco regis. fo. 45.

A Writ of Covenant to levy a fine, boare Date af­ter the returne, this is amendable because a common assurance, but in other actions, no amend­ment, &c.

Cookes Case, 41. Eliz. com. banco. fo. 46.

A Common recovery of the Mannor of Isfeild, by the name of Iffeld, is amendable, because it ap­peared [Page 198] to the Court, by collaterall things, shewed unto them that Isfield was intended to passe.

Francklyns Case, 36. Eliz. fo. 46. In the Starr-Chamber.

A Bill was exhibited for a Ryot in the Starre-Chamber, five yeares before the generall Par­don 35. Eliz. and it was resolved, that the Kings fine was excepted, but not the corporall Punish­ment, but if it were exhibited within foure yeares, all shall be accepted. In this Case, the Kings at­tourney may proceede for the fine.

Guilbert Littletons Case, 39. Eliz. fo. 47. Starre-Chamber.

A Bill exhibited in the Starre-Chamber before the Parliament 35. Eliz. and returned after, this is excepted out of the generall pardon, for it was de­pending before the returne, but if an Originall Writ issueth out of the Chancery, returnable in the com­mon place, this is not depending before the returne, because out of another Court, but after the returne, it shall be said depending by relation, from the day of the Teste: and if the Tenant alien before the re­turne, and after the Teste, this shall be said an aliena­tion, pending the Writ.

Drywoods Case, 42. Eliz. Starre Chamber. fo. 48.

A Bill in the Starre-Chamber more then foure yeares, and within 8. yeares, before the Parlia­ment [Page 199] in 39. Eliz. the Plaintiffe dyeth before the ge­nerall pardon, this is pardoned, for this doth not de­pend now, and the words remaining to be prosecu­ted, shall be intended for the party, and not for the Kings Atturney.

Vaughans Case, 40. Eliz. Banco regis. fo. 49.

A Writ of entry in the Quibus, depends in Wales, before the generall Pardon, and after the De­mandant had judgement, but the Tenant was not a­merced. 1. Resolved, the Amercement is pardo­ned, because the Torte was pardoned, which together with the delay was the ground thereof. 2. The Statutes of Jeofailes extend to Wales, because it is made parcell of England, by the Act of 27. H. 8.

Wyrrells Case, 41. Eliz. In the Exchequer, fo. 49.

THe Queene brings debt upon an Obligation made by the Defendant, to one who was Outlawed, the Defendant pleads the generall Pardon; and al­though that Debts due to the Queene are excepted, yet Debts Originally due to the Subject, and after came to the Queene, are not excepted, also the ge­netall pardon is to be taken beneficially, for the sub­ject, and most strong against the King.

Biggens case, 41. Eliz. Banco regis, fo. 50.

THe King may pardon burning in the hand, where the Defendant is found guilty of Man-slaugh­ter, and hath his Clergy in an appeale. 1. Because it is but to notifie to the Judges, that he hath once had his Clergy, and that he shall not have it againe, by the Statute of 4. H. 7. c. 13. 2. Because it is [Page 200] no part of the judgement, and the party shall goe at large, although he be not burned by good constru­ction of the Statute of 18. Eliz. c. 7. which provi­deth, that after Clergy allowed and Burning, he shall goe at large, for otherwise, when he is pardo­ned, he shall be imprisoned for ever. In the Starre-Chamber, the King may Pardon corporall punish­ment for forgery, &c. but not if attainted at the common Law in an Action of forgery of false deeds.

Halls Case, 2. Jacobi. com. banco. fo. 51.

A. C. Libelled, for defamation in the Court Chri­stian against H. and had sentence and costs tax­ed at a day to be paid, H. sueth an appeale, and ob­taines a Pardon from the King, and brings a prohi­bition. 1. Resolved, all Suites in the Court Christian, Pro salute animae, or reformatione morum, are for the King as suits in the Starr-chamber, & he may pardon them before or after the Suite comenced, but he cannot Pardon, where the party sueth for a thing in which he had interest, as Tythes. 2. All proceedings in the Court Christian Ex officio, are for the King, and he may pardon them. 3. Although the suite may be pardoned, yet he cannot pardon the costs which are taxed. 4. Although the sentence by the ap­peale is suspended to many purposes, yet untill re­versall, the party had interest in the costs, not par­donable, and after a consultation was granted for the costs.

Pages case. 30. Eliz. in the Exchequer. fol. 52.

I. Demiseth to his wife who is an Alien, and before the death of the Testator indenized, the date of the Letters Patents is corrupted, so that they bore [Page 201] date after his death, shee obtaines an exemplificati­on, by Commission under the Exchequer Seale, it is found that she was an alien, and an Information is brought against her, and she pleads the exemplifica­tion. 1. Resol. This office is voyde, for every office of Intitling, as this is, ought to be by Commission under the Great Seale; but an office of Instruction may be under the Exchequer Seale: 2. It appeared not, what authority the Commissioners had, but In­quisitio capta virtute Cujusdam Commissionis, &c. 2. That the Exemplification was pleadable by the Statute of 13. Eliz. c. 6. which extends to all Patents whatsoe­ver without any restraint: An Exemplification, and an Inspeximus, as an Innotescimus and a Vidimus are all one: A Constat cannot be had without Affidavit, and it is when Letters are casually lost: An Innotesci­mus, or a Vidimus, are alwayes of a Charter of Feoff­ment, or other Instrument, not of Record.

Knights case. 31. Eliz. Communi Banco. fol. 54.

THe Prior of S^t. John of Je: 29. H. 8. Leased divers houses, reserving 5. li. 10. s. 11. d. per annum at the foure usuall feasts in L. viz. for one house 3. li. 11. d. and so severally of the others, with condition of re­entry for non payment, and after surrenders to H. 8. who in Anno 36. grants one house to the lessee, and another in fee, the lessee dyeth; It is found by In­quisition in the Com'. of Mid'. by Commission under the Exchequer Seale, that 37. s. 5. d. parcell of the said rent was arreare at M. for a quarter of a yeare, before the returne of the office or seisure the King grants the residue of the houses to one who leaseth to the Plaintiffe, who upon entry of the Executors of the first lessee brings Trespas, and the Court being divided, it was argued in the Exchequer Chamber by all the Judges.

[Page 202]1. Resol. This is an intire Lease, and the viz. is but a declaration of the severall values of the houses, and no severance of the reservation, but by apt words divers parcells may be severally leased by one de­mise, and severall rents reserved. 2. Admitting them severall rents, yet the condition is intire, and in case of a common person by severance of any part of the reversion, will be extinct. 3. This being in case of the King his patentee of part shall not take advan­tage of the condition, but the King himselfe may, and the Patentee to whom he grants the residue, al­though the Lease originally made by a Subject. 4. Although it be found that more was arreare then was reserved quarterly, yet it sufficeth that the office had matter of substance, and the Jury in M. may finde which are the usuall feasts in L. 5. The grant after office and before the returne of it is good, and by entry without other seisure the Lease is voyde. 6. This office under the Exchequer Seale is sufficient to intitle the King to a Chattell.

Specots case. 32. Eliz. Banco Regis in Error. fol. 57.

S. & sa feme bring a Qu: impedit against the Bi­shop of E. and declare that J. A. was seised of a Mannor, to which an advowson was appendant, and demised it to the feme for life, and they presented D. W. who dyed, and so it belongs to them to pre­sent; the defendant pleads that the plaintiffe pre­sented one who is schismaticus inveteratus, whereof he gave notice to the plaintiffe: It was adjudged for the plaintiffe, in the Common place, and Error brought thereupon.

1. Error. Because no presentment alledged in J. A. but over ruled for the presentment of the plain­tiffe, is sufficient for themselves. 2. The Bishop [Page 203] ought not to shew any particular schisme, for the Court of the King cannot judge of it, but the Bishop is Judge: also it is cause to remove a Coroner, quia minus Idoneus: It was answered that he ought to shew the heresie in certaine, and although the Bishop is Judge, yet because his Act is not of Record, it is tra­versable, and although it belongs not to the Kings Court to judge of Heresies, yet the generall cause of suite being in their conusance, they shall determine of it by advise of Divines, and the cause of removing a Coroner is not traversable. 3. The Bishop is twice amerced, and a man can be amerced but once to­wards one man, &c. It was answered, that he was but once amerced; for the Judgement in the Kings Bench was but a rehersall of the former, yet admit­ting the second Judgement thereby voyde; never­thelesse the first Judgement is good by the Common Law without damages, Quod fuit concessum per totam Curiam.

Fostar. 32. El. in Banco le roy. fol. 59.

IT was resolved that the Constable having a war­rant to bring one coram aliquo Justiciar'. &c. it is at the election of the Officer to bring the party so attached to what Justice he will; For it is greater reason to give the election to the Officer, who (in presumption of Law) is a person indifferent, and sworne to execute his Office duly then to the Delin­quent Wray chiefe Justice said, that a Justice of Peace may make his warrant to bring the party be­fore himselfe, and it is good and sufficient in Law; for it is most like, that he hath the best knowledge of the matter, and therefore most fit to doe Justice in that matter: upon refusall to finde surety the Con­stable may commit him without a new warrant.

Gooches case. 32. El. in banco le roy. fol. 60.

WRay chiefe Justice said, that if A. make a frau­dulent conveyance of his Lands to deceive a purchasor against the Statute of 27. El. and conti­nueth in possession, and is reputed as owner; B en­tereth in communication with A. for the purchase, and by accident B. hath notice of this fraudulent conveyance, Notwithstanding he concludes with A. and takes his assurance. In this case B. shall avoide the said fraudulent conveyance by the said Act, not­withstanding the notice, for the Act by expresse words hath made the fraudulent conveyance voyde, as to the purchasor. And for as much as that is with­in the expresse provision of the Statute, it ought to be taken and expounded in suppression of fraud. Resolved, that fraud may be given in Evidence, be­cause the estate is voyde by the Act of 13. Eliz. and fraud is hatched in secret, in arbore cava & opaca.

And according to this opinion, it was resolved Per tot' Cur' in communi banco Pasche 3^o. Jac. where one Bullock had made a fraudulent estate of his Lands within the Statute of 27. El. to A. B. and C. and af­ter offred to sell the same to one Standen, and before the assurance by Bullock, Standen had notice thereof, and notwithstanding proceeded, and tooke the assu­rance from Bullock, Standen avoyded the former assu­rance of fraud by the said act, for the notice of the purchasor cannot make that good, which an Act of Parliament hath made voyde as to him. And it is true, Quod non decipitur qui scit se decipi. But in this case the purchasor is not deceived; for the fraudulent conveyance whereof he had notice is made voyde, (as to him) by the Statute, and therefore he knew it could not hurt him.

Sparries case. 33. Eliz. in Scaccar. fol. 61.

IN action of Trover and convertion, the defendant pleads that there is another action depending in the Kings Bench for the same Trover, and good; for in actions which comprehend no certeinty, as as­size or trespas, this is no plea before a Count, be­cause thereby it is made certeine, and then it is a good plea, and not before: but in this action and debt and detinue, it is a good plea at the first, be­cause they are certeine: that an action is depending in an inferiour Court is no plea.

Chamberlaine de Londons case. 32. El. in Banco le roy. fol. 66.

THe Inhabitants of a village without any custome, may make Ordinances or By-Lawes for repara­tion of the Church, or of high-wayes, or any such thing, which is for the publicke weale generally; and in this case the consent of the greater part shall binde all without any custome, vide 44. E. 3.19. But if it be for their owne private profit for that Towne, as for their well ordering of their common of pasture, or such like, then without custome they cannot make by-Lawes. And if it be a custome, yet the greater part shall not binde all, if it be not war­ranted by the custome; for as custome hath created them, so they ought to be warranted by the custome, 8. E. 2. tit. ass. As pontage, murage, Tolle, and such like, as appeareth in 13. H. 4.14. In which cases the summes for reparations of the Bridge walls, &c. ought to be so reasonable, that the Subject may have more benefit thereby then charge.

Clerks case. 38. Eliz in communi banco. fol. 64.

KIng Edward 6. did incorporate the Towne of S^t. Albones, and granted them to make Lawes and Ordinances, &c. The Tearme was kept there, and the Major, &c. by assent of the plaintiffe, assessed every Inhabitant for the charges in erecting of the Courts there, and if any did refuse to pay, &c. to be imprisoned, &c. the plaintiffe being Burges refused to pay, &c. and the Major justified, &c and it was ad­judged no plea, &c. For this Ordinance is against Magna Charta, ca. 29. Nullus liber homo imprisonetur, which act hath been confirmed divers times (viz.) thirty times, and the assent of the plaintiffe cannot alter the Law in this case. But it was resolved that the Major, &c. might inflict reasonable penaltie, but not imprisonment, which penaltie ought to be Levi­ed by Distresse; for which offence an action of Debt lyeth, and the plaintiffe in this case had judgement.

Jeffrays case Michaelis 31, 32. en Bank le Roy. fol. 66.

WIlliam Jeffray Gent. brought a prohibition a­gainst Abraham Kenshley and Thomas Forster, Churchwardens of Haylesham in Com' Sussex, for that they sued him in Court Christian before Doctor Dru­ry for certaine money imposed upon him without his assent, for repaire of the Church; That the Church-wardens with the assent of the greatest part of the Parishioners, juxta quantitatem & qualitatem possessio­num & reddit' infra dict' parochiam existent. Deter­mined and agreed to make a taxation for repaire of the said Church, and that notice of such assembly was given in the Church, at which day the Church-wardens and greater part of the Parish, which were [Page 207] there assembled, made a taxation (viz.) every oc­cupier of Land for every acre 4. d. &c. Geffray dwelt in another Parish, and declared that the Parishio­ners of every Parish ought to repaire their Church, and not the Church of another Parish. Cooke of coun­cell with the defendant demurred in Law, and after many arguments a Writ of consultation was granted. And it was resolved, that the Court Christian hath conusans de reparatione corporis sive navis Ecclesiae: Brit­ton who writ in 5. E. 1.

And in the Statute of Circumspecte agatis, but in Rebus manifestis errat qui authoritates legum allegat quia perspicuè vera non sunt probanda. It was also resolved, that although Geffray did dwell in another Parish, yet for that he had Lands in the said Parish, in his pro­per possession, he is in the Law Parochianus de Hayle­sham.

But it was resolved, that where there was a Far­mor of the same Lands, the Lessor that receiveth the rent shall not be charged, but the Inhabitant is the Parishioner, and the receipte of the rent doth not make the Lessor a Parishioner.

Diverse of the civill Lawyers certified the Court, that the Church Wardens and a greater part of the Parishioners (upon a generall warning) assembled, may make a Taxation by their Law, and the same shall not charge the Land, but the Person in respect of the Land, for equality and indifferency, and this was the first leading case that was adjudg'd & repor­ted in Our Bookes touching these matters, and many causes after were adjudged thus, and now it is ge­nerally received for Law.

The Lord Cheneys Case. 33. Eliz. In cur. wardo. fol. 68.

IN a devise of Lands by writing, an averment out of the will, shall not be received for a Will con­cerning Lands, &c. ought to be in Writing, and not by any averrment out of the same; otherwise it were great inconvenience that not any might know by the written words of the will, what construction to make, if it might be controuled by collaterall a­verrment out of the will.

Burtons Case, 34. Eliz. banco regis. fo. 69.

A. Lends to T. W. 100. l. 7. July 21. Eliz. in consideration of which, T. W. grants to him a rent charge of 20. l. per annum, the first payment to be at the Nativity, 1580. upon condition of payment of the said 100. l. this is out of the Statute of Usury, for he had a 100. l. for a yeare and a quarter, without consideration, and if he pay it within this Time, A. shall not have the rent, so that he was not assured of any consideration: But if it were agreed betweene them that the 100. l. shall not be payd, this is within the meaning of the Statute. A Demurrer is a confession of all such matters in fact onely as are well and sufficiently pleaded.

Claytons Case. 37. Eliz. Com'. Banco. fol. 70.

THirty pound was lent for halfe a yeare to have for it thirty-three pound, if the sonne of the [Page 209] obligee be then in life, if not 27. pound. this is with­in the intent of the Statute of Usury: Ʋsura dicitur ab usu & aere, quasi usuaera, (1.) usus aeris; Et usura est commodum certum, quod propter usum rei mutuatae recipi­tur: Glanvile. lib. 7. cap. 16.

Hoes Case, 34. Eliz. fo. 70.

A Duty certaine upon a condition subsequent may be released, before the day of the performance of the condition, but a dutie uncertaine at the first, and upon condition precedent to be made certaine after, this in the meane time is but onely a meere possibilitie, and therefore cannot be released. And it was adjudged 4. El. in communi Banco, that by a re­lease of all actions, suites, and quarrels, a covenant before breach of it is not released thereby. But by a release of covenants, the covenantor is discharged before the breach, vide Litt'. 170.

A release in the time of vacation to the Patron dischargeth an annuitie, wherewith the Parson is charged in respect of the parsonage, and a warranty may be released before suite, because he may have a warrantia chartae.

S^t. Johns case. 34. El. Banco Regis. fol. 71.

DAggs, Pistolls, &c. are within the Statute of 33. H. 8. ca'. 6. the same Statute doth prohibite Crosse-bowes, and under the same name stone-bowes are forbidden; for if a small alteration or addition should defeat the penaltie of the act, the Statute should be of small effect. And it was resolved, that the Sheriffe, or any of his Officers, for the better exe­cution of Justice, may carry handguns or other wea­pons invasive or defensive, and not restreined by the [Page 210] generall prohibition of the said act, vide 3^o. H. 7. fo. 1.

Williams case. 37. Eliz. Banco Regis. fol. 72.

ONe man shall not have an action of the case for common Nusans made in the high way, because it is a common Nusans, and it is not reason, that any particular person should have an action, for then eve­ry particular person might have an action for the same, and so thereby one might be punished an hun­dred times for one cause. But if any particular per­son have more particular damage then another, hee may have a particular action upon the case for this particular injury, & for common Nusances, which are equall to all the Kings people; the common Law hath appointed other Courts (viz.) Leets, &c. A prescription to doe divine service in a Chappell for the Lord and his tenants is remediable onely in the Court Christian; but for the Lord and his private fa­mily, an action of the case lyeth for the Lord onely.

Case of Orphanes of London. 35. El. Banco Regis. fol. 73.

IF any Orphane of London sue for goods, &c. in the Court Christian, or of Requests, a prohibition ly­eth, because their government by their custome be­longs to the Major of L. So, if a Will be proved in the Court Christian, the probate whereof belongeth to the Lord of a Mannor.

Wymarkes case. 36. Eliz. Banco Regis. fol. 74.

PLaintiffe in an Ejectione firmae, counts of a Lease of R. S. the defendant pleads in barre an Inden­ture of bargaine and sale (and sheweth it) by the said R. S. to E. W. who was seised untill disseised by R. [Page 211] S. who leased to the plaintiffe, and he as servant to E. W. enters; Three Termes after the plaintiffe re­plies, that the bargaine and sale was upon condition, which was broken, and the bargainor entred and lea­sed to him, and did not shew forth the deed of bar­gaine and sale: Judgement given for the defendant.

1. Resol. When a Deed is shewed to the Court, it remaineth in the Court all the Terme in Judgement of Law, because the Terme is but one day in Law, and this as well to strangers as parties, to take ad­vantage thereof without shewing, but at the end of the Terme it shall be delivered to the party, if it be not denied, for then it shall remaine in Court to be damned, if it be found not his Deed.

2. The Course in the Kings Bench is, that Impar­lances to plead in barre are entred, but not Impar­lances to Reply or rejoyne, so that the Replication here, although it be three Termes after the Barre, yet it shall be intended here the same Terme, and so he shall not need to shew the Deed.

Cliftons case. 35. Eliz. fol. 75.

IF a woman tenant for life take an husband which committeth wast, and after the wife dyeth the husband is dispunishable of and for such wast; for the Writ is Quare cum de communi consilio, &c. provi­sum sit quod non liceat alicui vastum venditionem seu de­structionem facere de terris, &c. sibi demissis ad terminum vitae vel annorum, &c. And in this case the husband hath not any estate for life in this Land; but the wife hath estate for life, and the husband but onely an estate in her right, and so he is not within the Act.

Pilkintons case. 43. Eliz. in banco le Roy. fo. 76.

IT was resolved, Per tot' Cur', that when a distresse is taken for damage fesant, that the party may tender amends untill the beasts be impounded; but after they be in the pound, they are in the custody of the Law, and then the tender cometh too late. It was also resolved, that tender of amends to the Bayliffe or servant that taketh them, will not serve; for he cannot deliver the distresse once taken, no more then change the avoury of his Master, or de­mand rent upon a condition of reentry.

The Earle of Pembrookes case, 36. El. Banco Regis. fol. 76.

WHere the defendant sheweth a Deed to the Court, the plaintiffe may pray it to be entred in haec verba the same Terme, but not after.

Pagetts case. 35. El. in communi banco. fol. 76.

IT was resolved, that if tenant for life, the remainder for life, the remainder in fee, if tenant for life ma­keth wast in trees, and after he in remainder for life dye, an action of wast is maintainable, for the wast done in the life of him in remainder for life, because it was to the disinheritance of him in remainder in fee. And now the impediment (which was the meane estate for life) is taken away. Et remoto im­pedimento emergit actio; It was resolved, that when the trees are cut downe, the property thereof belongeth to him in remainder in fee. And where it is said in some Bookes, That he in remainder or reversion in fee, shall not have an action of wast, it is to be inten­ded, during the continuance of the meane remain­der. [Page 213] And in other Bookes is said in this case, that an action of wast doth lie, it is intended after the death of him in remainder for life.

Boothes case. 36. Eliz. in communi Banco. fol. 77.

GEeorge Booth brought an action of wast against Skevington, and declared that Sir William Booth demised for yeares to Ensor, who assigned to Skeving­ton. The defendant pleaded an assignement to Eli­zabeth Cave, before which assignement no wast was made; the plaintiffe replyed, and shewed the Sta­tute 11. H. 6. ca. 5. and that the grant to Elizabeth Cave was made to the intent he should not know against whom to bring his action, and averred, that Skevington did take the profits; the defendant re­joyned that Elizabeth Cave granted her estate to A. who demised to the defendant at will, and traversed the fraud, &c. the plaintiffe demurred, it was resol­ved, that every assignee of every Lessee mediatly or immediatly is within the said act; for the Statute was made to suppresse fraud, and deceipt, and therefore it should be taken most beneficially. Secondly, that he in remainder is within the said act, as well as he in reversion. Thirdly, the intent of fraud aforesaid, is not traversable, but the taking of the profits, which is a thing notorious, whereof the Country may have knowledge. In a formedon the tenant pleaded, Non tenure, the demandant said, that he made a Feoff­ment to persons unknowne, to defraud him of his tenancy, and to keepe the profits, the pernancy of the profits, and not the Feoffment is traversable.

Samons case. 36. Eliz. Banco Regis. fol. 77.

THe plaintiffe and defendant referred all contro­versies to the Arbitrement of J. S. who did arbi­trate that the defendant shall enter into an obligati­on to the plaintiffe, that the plaintiffe and his wife shall injoy certeine lands which he had not done; this is voyde for the incerteinty of what summe the obligation shall be, for the award ought to be cer­teine, like a Judgement: Also the award was voyde as to the feme, for she was a stranger to the submission.

Grayes case. 37. Eliz. Banco Regis. fol. 78. Replevin.

THe plaintiffe intitles himselfe in barre to the a­vowry to Common, &c. which was traversed, the Jury found that every, &c. time of minde have used to pay for the Common a henne and five egges; the plaintiffe had Judgement, for he needs not shew more then makes for him, for this is not Modus Com­muniae, paying so much, nor parcell of the issue, but a collaterall recompence to be paid for the Common, for which the Terretenant had remedy, but if the Terretenant had no remedy, then the Commoner shall have the Common sub modo, and may be distur­bed by the Terretenant.

Fitz-Herberts case. 37. Eliz. Banco Regis. fol. 79.

THe father tenant for life, the remainder to the sonne in taile, leaseth for yeares to A. to the in­tent to barre the sonne, A. infeoffeth J. S. to whom the father releaseth with warranty, and dyeth, this doth not barre the sonne, for although that the dis­seisin which is made by the feoffment, precedes the [Page 215] warranty, yet because it was to that intent, the Law will adjudge upon the intire act, and so a warranty by disseisin. 2. Although the disseisin was made to the father, yet because he consented unto it, the warran­ty commenceth by disseisin; but if the father had made a feoffment in fee and dyed; this shall binde the sonne, if it be with warranty.

Foordes case. 37. Eliz. Com'. Banco. fol. 81.

A Prebend leaseth for 70. an. Patron Deane and Chapter confirme dimissionem praedictam in forma praedicta fact'. for 51. yeares & non ultra; this is a con­firmation for all the Terme; for when they confirme dimissionem, &c. for 51. yeares, it is repugnant, but if they had recited the Lease, and confirmed the land for 51. yeares, this had been good, for they have an authority, coupled with an interest, otherwise if one­ly a bare authority: but by what words soever they confirme a lease for life, or a gift in taile for part, this is a confirmation of all, because they are intire; so if the estate of the disseisor, or his lessee for life be confirmed for an houre, yet all is confirmed.

Snellings case. 37. Eliz. Com'. Banco. fol. 82.

S. Brings Debt upon an Obligation against an Ad­ministrator, who pleads there is a custome in L. that an Administrator shall pay debts upon contract to a Citizen, as well as upon Obligation, and that J. S. upon a Contract had recovered; and good. 1. Re­sol. Although that debt is given against an Admini­strator by the Statute of 31. E. 3. yet because they [Page 216] were charged as Executors before, so that onely the name is changed, the custome generally alledged is good. 2. The ordinary by taking the goods was chargeable at the Common Law. 3. This custome bindeth strangers.

The case of Markett overt. 38. Eliz. fo. 83.

SHopps in L. are Marketts overt for things to be sold there by the trade of the owner, therefore if plate be sold there in a Scriveners shop, the property is not altered, otherwise if in a Goldsmiths shop, if he who passeth in the street may see it. Nota, the rea­son of this case extends to all Marketts overt in England.

Perimans case. 41. Eliz. Com. Banco. fol. 84.

IT is a good Custome of a mannor that all sales of lands within that mannor be presented at the Court of the Mannor. Obj. What remedy if the Ste­ward will not accept the presentment. Resp. What remedy if the Clerke will not Inrolle a deede of bar­gaine and sale, and therefore Caveat Emptor. 2. Obj. That Interest is by the feoffment vested in the fe­offee, which shall not be devested by the Custome. Resp. That livery was ordained to give notice, and a Custome which addeth more solemnity and notice is good.

Sir Henry Knivets case 38. Eliz. Banco Regis. fol. 85.

TEnant for life, the remainder in fee, leaseth for yeares, the Termor is ousted, the disseisor leaseth for yeares, his lessee sowes the land, tenant for life dyes, he in the remainder enters, J. S. takes the [Page 217] Corne, he in remainder brings Trespas. The right of the Corne is not in the plaintiffe or defendant, but in the lessee for yeares of lessee for life, but the lessee of the disseisor had right against the plaintiffe by reason of the possession: and for that if he had plead­ed that he had entred to take the Corne, this had been good, but because he pleaded Non culp the plaintiffe had judgement for the Entry, and was bar­red for the residue.

Penrins case. 38. Eliz. Banco Regis. fol. 85.

W. P. Brings a Quod ei deforceat in nature of a Writt of Right in Wales, and after the mise joyned is nonsute, Judgement finall is given, he brings the like Writt, and the first Judgement is pleaded in barre, the demandant demurres, and ad­judged against him, and he brings Error. 1. Although by the Statute of 12. E. 1. Triall of right in Wales shall be by Common Jury, yet Judgement finall shall be given. 2. Erroneous Judgement finall in right shall binde untill it be reversed. 3. Judgement finall shall not be given upon default of the Tenant in a Writt of right, but a Petit Cape shall issue, for perad­venture he may save his default.

Blumfeilds Case, in banco le roy. 39. Eliz. fo. 86.

TWo men were bound joyntly and severally in an Obligation, the one was sued condemned, and taken in Execution, and after, the other was sued, condemned, and taken in Execution, and after, the first escaped, and the other brought an Audita quaere­la; [Page 218] and although the Plaintiffe might have his A­ction against the Sheriffe upon the escape, yet un­till he be satisfied indeed, the other cannot have his Audita quaerela, for if the Defendant be sued by one Writ or severall Proces, although the entry be, Quod unica fiat executio. This is to be understood, of one Execution with satisfaction, for he may have three bodies in Execution. In communi banco inter Lyna­cre & Rodes Case, Hill. 33. Eliz. It was adjudged, that notwithstanding the Conusor in a Statute Sta­ple was taken and escaped, yet his goods and Lands upon the same Statute, may be extended, for the Escape, and the Action which the Plaintiffe might have against the Sheriffe, is not a satisfaction of the Debt. And if so, the Conusor be taken and dye in Execution, the Conusee shall have Execution of his goods and Lands. And it was adjudged, 24. Eliz. int. Joanes & Williams, that where two men were con­demned in a Debt, and the one taken and dyed in Execution, yet the taking of the other was lawfull, and then it was resolved, Per. tot. Cur. that if a De­fendant dye in Execution, yet the Plaintiffe may have a new Execution by Elegit, or Fieri facias, &c.

The Execution of the body is an Execution, but not a satisfaction, as appeareth in 4. H. 7. 8. and 33. H. 6. 47. in Hillaryes Case adjudged, but a gage for the Debt, for the words of the Writ are, Capias I. S. Ita quod habeas corpus ejus coram Justic. nostris, &c. ad sa­tisfaciendum G. L. de debito & damnis, &c. and so his body is taken to the intent he should satisfie, and when the Defendant hath paid the money, he shall be discharged out of Prison.

Garnons Case, 40. Eliz. fo. 88.

LAyton recovered against Wallwyn, in an Action of Debt, and Outlawed the Defendant after judge­ment, [Page 219] and sued a Cap. Ʋtlag. and delivered the same to Garnon the Sheriffe, who did take the Party, and before the returne of the Writ, the Defendant esca­ped: and thus it was resolved, that if one at the common Law have judgement in an Action of Debt, and after judgement Outlaw the Defendant, then the Plaintiffe is at the end of the Suite, for any pro­cesse to be sued in his name. Yet if the Defendant be taken by Ʋtlary, at the Suite of the King, no La­ches being in the Plaintiffe, in continuance of his Processe, he shall be in Execution for the Plaintiffe, if he will, for reason requireth, that if the King shall have benefite by the Suite of the party. So the Plaintiffe shall have benefite by the Suite of the King, if judgement in error be affirmed within the yeare, a Capias or Fieri facias, lyeth without any Scire facias, although in another Court.

Frosts Case, In communi banco. 41. Eliz. fo. 89.

FRost recovered Debt and damages against B. who was Outlawed after judgement, and a Cap. Ʋt­lagatum, delivered to the Sheriffe of London, Laborne a Serjeant arrested the said B. in Fleete-streete, Ad re­spondendum, A. Laborne kept B. in his House, and then Frost came to Laborne with the Sheriffes Warrant, to Arrest B. upon the said Cap. Ʋtlagat. the which to doe, Laborne refused, and afterwards the Sheriffe suffered the said B. to goe at large, and upon this matter, Frost brought his Action upon the case a­gainst the Sheriffe, and supposed that the Sheriffe did arrest the said B. by vertue of the said Cap. Ʋtla­gat and that he suffered him to goe at large, and the Defendant pleaded, Non permisit eum ire ad lar­gum. The Jury found all the said speciall matter, and judgement was given for the Plaintiffe. For, [Page 220] first it was resolved, That when a man is in custody of the Sheriffe by Processe of the Law, and after another Writ is delivered unto him to apprehend the body of him who is in his custody, immediately he is in his custody by force of the second writ, by judgement of Law although he make no actuall ar­rest of him, for to what purpose should he arrest the party that is already in his custody, Et lex non preci­pit inutilia quia inutilis labor stultus, & the words of the writ are, not onely Capias, &c. but also Salvo custodi­as, &c. Ita quod habeas corpus coram, &c. and so he ought safely to keepe him, Vide 7. H. 4. 30. And the Defendant ought not to be discharged. untill he had found surety to satisfie the Plaintiffe by 5. E. 3. cap. 12.

Hoes Case, 42. Eliz. fo. 89. In the Exchequer.

EXecution of a writ of Execution, as well at the Suite of a common person, as at the Kings suite, is good without returne of the writ, for if a man be arrested upon a Cap. ad satisfaciendum, the Executi­on is good, although the Sheriffe doe not returne the writ, and so in all writs of Execution, where the Sheriffe doth onely execute the same as Cap ad satis­faciendum, habere fac. seisinam vel. possessionem Fieri Facias Liberat. If the Execution be duely made, it is good, but if Cap. in Processe be not returned, the Arrest is not lawfull, for there the intent of the writ is, to bring the party to answer the Plaintiffe, and in case of an Elegit, for there the extent is to be made by Inquest, and not by the Sheriffe onely; and the writ ought to be returned, otherwise it is of none effect. In this case it was resolved, that when one hath a power of revocation, yet if he suffer any thing to be lawfully executed, as touching that, he cannot [Page 221] make any revocation: as if a man make a Letter of Attourney to another, to doe any thing, before Ex­ecution he may revoke it, but after Execution law­fully done it cannot be revoked; if one to whom another is indebted, be Outlawed, and he that oweth the money, payeth it to the King, and the Outlary is after reversed, yet the Creditor shall recover his Debt against the party, if the goods of an Outlawed person be sold by the Sheriffe upon a cap. utlagat' & af­ter the Outlary is reversed by Error, the Defen­dant shall have restitution of his goods, for the She­riffe or Escheator, is not compellable to sell the goods, but he may keepe them, to the use of the King, agreeing to the Booke, 20. Eliz. Dyer. 363. but if a Sheriffe by vertue of a Fieri facias, sell the goods, and after the judgement be reversed by er­ror, the Defendant shall not have restitution of the goods, but the value of them, for which they were sould. And the reason is, the Sheriffe is compella­ble to Levy the Debt of the goods of the Defen­dant, and therefore great reason that the Sale should stand.

Semaynes case, 2. Jac. fo. 91. Banco regis.

THat the House of every man is to him as his Ca­stle, and Fortresse, as well for his defence a­gainst injuries and violence, as for his repose; that if a man kill another in his defence or permisfortune, without any intent, yet it is felony, and he should loose his goods and Chattells, for the great regard that the Law hath to the life of a man. But if Theeves come to the House of a man to rob or mur­ther, and the owner or his servant kill any of the Theeves, in defence of him or his House, this is not felony, neyther shall he loose any thing; any man [Page 222] may assemble his Neighbours or friends to Guard his House against violence, but he may not assemble them to goe with him to the Market or abroad, to safe-gaurd him against violence, and the reason of all this, is, Domus sua cui (que) est tutissimum refugium. It is resolved, that when any House is recovered by any reall Action, or by Ejectione firmae, the Sheriffe may breake the House, and deliver seisin or possession. It was also resolved, that in all cases where the King is party, the Sheriffe may breake the House (if the Doores be shut) and make Execution of his Writ, but before he breake the House, he ought to signi­fie the cause of his comming, and make request to have the Doores opened. West. 1. ca. 17. which Act is but an affirmance of the common Law, but if the Officer breake the House when he might have the Doores opened, he is a Trespassor, 41 Ass. pl. 35. For fellony, or suspition of fellony, the Officer may breake open the Doore; in all Cases where the Door is open, the Sheriffe may enter, and make Executi­on of his writ either for body or goods, at the suite of a subject, or the Lord may distraine for his rent. But it was resolved, that the Sheriffe at the Suite of a com­mon person (upon request made to open the Doors and denyall thereof) ought not to breake open the Doore or the House, to Execute any processe at the Suite of any Subject, or to execute a Fieri facias, be­ing a Writ of Execution, but he is a Trespassor, yet if he doe Execution in the House, it is good in the Law, being done, it was also resolved, that the house of a man is not a Castle or defence for any other person but for the owner, his Family and goods, and not to protect another, that flyeth into the same, or the goods of another, for then the Sheriffe upon re­quest and denyall, may breake the House, and doe Execution. And this is proved by the Statute of [Page 223] West. 1. ca. 17. whereby is declared, that the She­riffe may breake the House or the Castle to make re­plevin, when the goods of another that he hath de­strayned, are conveyed away, to prevent the owner, but in this case the Sheriffe must demand the goods first

Barwicks Case, 39. Eliz. in Exchequer. fo. 93.

THe Queene 28. Die Julij, Anno. 26. demised the Mannor of Sutton, to Humfrey Barwicktenend. sibi a die confectionis. It was resolved that the same 28. day of July, is excluded, and the demise began the 29. of July. It was also resolved, that an estate of freehold cannot commence In futuro, but ought to take effect presently in possession, Reversion, or Remainder. A Lease for yeares may commence in future, but not a Lease for life, and the reason is, for that a Lease for yeares may be made without livery and seisin, but an estate of freehold may not be made without livery, eyther in deed or in Law, and therefore when a man maketh a Lease for Life, to commence at a day to come, he cannot make a pre­sent Livery to a future estate, and therefore in this case nothing passeth, and it is all one whither it com­menceth at a day to come, or yeares to come, for the distance of the times doth not make alteration in this Case, but in the case of two joynt Lessees, the Livery made to one is good in the name of both, for they have an interest in the Land, before their en­try, and livery to one in the name of both, maketh an actuall possession in both, which is sufficient to support the remainder to a third person in Fee, Vide, Claytons' Case, in the Fifth Booke, Lycense to occupy Land for one yeare, is a Lease for one yeare. 5. H. 7. 1. in consideration of a former demise to [Page 224] be surrendered, which was false and void, is a void consideration, as to the Queene.

Goodalls case. 40. El. Banco Regis. fol. 95.

COnditions for payment of money touching inhe­ritance, ought to be truly performed, and not co­venous, if they concerne a third person. The Law doth not finde an assignee in Law where there is an assignee in fact. Expressum facit cessare tacitum; affir­med in the Exchequer chamber upon Error there brought.

Countesse of Northumberlands case. 40. El. Commu­ni Banco. fol. 97.

FItton and the Countesse of Northumberland his wife, Sir Thomas Cecill, Knight, and Dorothie his wife, William Cornewalleys, and Lucy his wife, and the Lady Davers, Daughters and heires of the Lord Latimer, brought a (Quare impedit) against Hall, who plead­ed a release of William Cornewalleys, pendente breve, and it was adjudged that this should but goe in barre onely against William Cornewalleys and his wife, and the Writt should stand for others, and all shall vest in the others, because intire, and in the realty, pre­sentment of the lessor and lessee is not double, for the lessors onely traversable.

Buries case. 40. El. in communi banco. fol. 98.

BEtween Whebster and Burie in Ejectione firmae, a speciall verdict was given upon divorce between Burie and his wife, causa frigiditatis, and that his wife for three yeares after the marriage, Remansit virgo intacta propter perpetuam impotentiam generationes in vi­ro, [Page 225] & quod vir fuit inaptus ad generandum; and in this speciall verdict, all the examinations of the Witnes­ses, upon which the Judge in the spirituall Court was moved to give his sentence, by which the perpetuall disabilitie of Bury ad generandum was manifest, were reade; and by which it was pretended, that the issue which he had by a second wife was illegitimate, and this was the doubt of the Jury. And it was adjudged, that the issue of the second wife was lawfull, for it is cleare that by the Divorce (causa frigiditatis) the marriage is dissolved a vinculo matrimonij, and by con­sequence, either of them might marry after, then ad­mitting that the second marriage was avoydable, yet it remained a marriage untill it was dissolved, and by consequence, the issue that is borne during the co­verture, (if no divorce be in the life of the parties) is lawfull, Et homo potest esse habilis & inhabilis diver­sis temporibus, and Judgement affirmed in Error.

Flowers case. 41. El. Banco Regis. fol. 99.

AN indictment of perjury upon 5^o. El. for giving false evidence to the great Inquest, is not with­in the Statute, for it must be in matter depending in suite by Bill, Writt, action, or information, vide le Statut. Plus peccat author quam actor.

Rookes case. 40. Eliz. fol. 99.

THat the Commissioners in the Cōmission of Sewers ought to tax all which are in damage, or in dan­ger of damage, for non-repaire of the Bancks, and not onely him, which hath the Land next adjoyning to the River. The Commission is grounded upon the Statute 6. H. 6. cap. 5. for if the Law were other­wise, great inconvenience might follow, for it might [Page 226] be, that the rage and force of the water might be such, that the value of the Land adjoyning would not serve to amend the Bancks, and therefore the Statute would have all in perill, and which take commoditie by the making of the Bancks to be contributory; for qui sentit commodum sentire debet & onus & ipsae leges cupiunt, ut jure regantur.

And notwithstanding by the words of the Commis­sion authoritie is given to the Commissioners, to doe according to their discretions; yet their proceedings ought to be limitted and bounded with the rule of the Law, and reason. For discretion is a knowledge or understanding to discerne betweene right and falshood, truth and wrong, shadowes and substances, equity and colourable glosses and pretences, and not to doe according to their wills and private affection; For a learned Man saith; Talis discretio discretionem confundit.

Penruddocks case. 40. Eliz. fol. 100.

IN a quod permittat betweene Clarke assignee of Tho­mas Chichley, plaintiffe, and Ed: Penruddock and Mary his wife defendants, assignee of one John Cock, for that Cock 2^o. 8bris 1^o. Mariae erected upon his free­hold a house in S^t. Johns streete so neere the Curte­lage of an house of Thomas Chichley, that Domus illa super pendet, Anglice, doth overhang magnam partem vi­delicet 3. pedes curtilagij the plaintiffe, sic quod aquae pluvi­ales de eadem domo decedentes solum ejusdem curtilagij con­terunt & magnopere ac indies magis magis (que) consumunt & Devastant, ac ea ratione curtilag' praed. quolibet pluviale tempore humectat'. & inundat. existit, quod praedictus Hen­ricus Clarke inhabitans in eodem Messuagio nullum profi­cuum seu easiamentum de eodem curtilagio percipere possit, ad necumentum liberi tenuenti praed'. &c. And it was re­solved, [Page 227] that the distilling of the waters in the time of the Feoffee or assignee is a new wrong; and this Writ lyeth after request of amendment, but not be­fore, but it lyeth against him that did the wrong without request, and the action good, &c.

Windsors case. 41. Eliz. fol. 102.

IN a quare impedit by Windsor against the Archbishop of Canterbury for the Church of Buscott in the County of Bark: It was adjudged that if two have ti­tle to present by turne, and the one present, who is admitted, instituted, and inducted, and afterwards is deprived for Crime, Heresie, &c. yet that Patron should not present againe, but that shall serve for his turne. So likewise if he present a meere Laicus, which was admitted, instituted, and induced, al­though it be declared by sentence, that he was inca­pable, and therefore voyd ab initio, yet because the Church was full untill the sentence declaratory be pronounced, yet that shall serve for his Turne. But when the admission and institution are meerely void, then that shall not serve for one Turne, as if a pre­sentee be once admitted, instituted, and inducted, but hath not subscribed to the Articles, &c. accord­ing to the Statute of 13. El. by which in this case the admission, institution, and induction are voyde, 23. El. Dier pl'. ult'. acc.

Hungatts case. 43. El. Com. Banco. fol. 103.

HƲngatt brought an action of debt upon an Obli­gation against Mese and Smith, the condition was to performe an award between the plaintiffe on the one partie, and the defendants on the other; Ita quod arbitrium praed fiat & deliberetur utrique partium [Page 228] praed. before such a day, the arbitrament before the day was delivered to the plaintiffe, and to Mese, but not to Smith, Judgement was given against the plain­tiffe. It was resolved, that if two be of one partie, and two of another, and the words are, Ita quod deli­ber. utri (que) partium, That the delivery of the arbitra­ment to one of the one part, and another of the o­ther partie is not sufficient; For the partie is to be intended of the whole partie, for one is as well with­in the penaltie and danger of the Obligation as the other; and uter (que) is taken sometime Discretive, some­times Collective, Secundum subjectam materiam; but here it is taken Collective.

Bakers case. 42. Eliz. fol. 104.

IF a plaintiffe in evidence shew any matter in wri­ting or record, or any sentence in the Ecclesiasti­call Court, whereupon Law doth arise, and the de­fendant offer to demurre in Law upon the same, the plaintiffe cannot refuse to joyne, or wave his evi­dence, and so on the other partie, and the reason is for that matter in Law, shall not be put in the mouth of Lay-men; but the King in this case is at libertie.

Boulstons case. 40. El. in communi Banco. fol. 104.

IT was adjudged that if a man make Cony-bor­rowes in his owne Land, and the Conies encrease to so great a number, that they destroy his Neigh­bours ground adjoyning; The Neighbours may not have an action of the case; for presently when the Coneys come into his Neighbours ground hee may kill them, because they are ferae naturae. And in this case it was resolved, that none may newly erect a Dove-house, but the Lord of a Mannor, and if any [Page 229] doe, he may be punished in the Leete; But no acti­on of the case lyeth for any particular man, for the infinitnesse of actions that might be brought. And of this opinion touching the new erecting of a Dove-cote, was Sir Roger Manwood, chiefe Baron, and the Barons of the Exchequer in the Exchequer cham­ber.

Aldens case. 43. Eliz. Com. Banco. fol. 105.

AUncient demise is a good plea in an Ejectione firmae, although it is not in trespas, because by intendement the freehold may come in debate, and the interest of the Land is bound; auncient demesne is extendable upon a Statute by Elegit, but in an as­sise by tenant by Elegit, auncient demesne is a good plea. 22. Ass. Pl. 45.

Sir Henry Constables case. 43. El. in banco le roy. fo. 106.

NOthing shall be said Wreccum maris, but such goods onely, which are cast or left upon the Land by the Sea: Flotsam maris, is when a Ship is drowned, or otherwise perish, and the goods flote upon the Sea; Jetsam maris, is when a Ship is in pe­rill of drowning, and for disburthening thereof, the goods are cast into the Sea, and after notwithstand­ing the Ship perish. Lagan vel potius Ligan, is when the goods so cast out of the Ship, and the Ship pe­rish, and such goods are so ponderous that they sinke to the bottome, and the marriners to the intent to finde them, binde thereunto a Boy or a Corke, or o­ther such thing to finde them againe; Et dicitur Li­gan a Ligando, and none of these words which are cal­led Flotsam, Jetsam, or Ligan, are called wreck, so long as they remaine in or upon the Sea; But if any [Page 230] of them be cast upon the Land by the Sea, then it is said to be wreck, and by the Statute 15. R. 2. ca. 3. the Lord Admirall shall not have conusance or juris­diction of wreck of Sea; but of the other three hee hath; for wreck is when the goods are cast upon the Land, and so within some County, whereof the Com­mon Law may take conusance; But the other three are upon the Sea, Magis proprie dici poterit wreccum, si Navis frangatur & ex qua nullus vivus evasit, & max­ime si dominus rerum subversus fuerit, & quicquid inde ad terram venerit erit domini regis; wreck may by pre­scription belong to the Lord of a Mannor. It was re­solved also, that the soyle upon which the Sea doth flow and reflow, scil. Between the high water marke, and the low water marke may be parcell of the Man­nor of a Subject 16. El. Dier. And it was resolved, that when the Sea doth flow, ad plenitudinem maris, the high Admirall shall have jurisdiction of every thing done upon the water, between the high water marke, and the low water marke, as felony, &c. No proofe is allowable by the Law, but the verdict of twelve men; part of the goods were wreck, and part not, & damage assessed intirely, ergo Judgement given for the defendant. The King shall have flotsam upon the Sea, because within the ligeance of the King.

Foxleys case. 43. El. Banco Regis. fol. 109.

IT was resolved, if a Felon steale any goods, and leave them in a Mannor, or Towne, or in his house, or in the house of another, or hide them in the earth, or any other secret place, and afterwards fly, these goods are not forfeited, nor waife goods in the Law, for waife is where a felon in pursuite, waveth or lea­veth the goods, or for feare to be taken thinking that pursuite was or is made, having the goods with him in [Page 231] his possession flyeth away, and leaveth the goods. In these cases the goods shalbe said waved in Law; But if he had not the goods w^th him, when he did fly being pursued, or for feare of being apprehended, the goods are not waved, nor forfeited, but the owner may take them againe when he will, without any fresh suite. But if the Felon in his flying wave them, the goods are forfeited by the Common Law; If the Felon up­on fresh suite be not attaint, at the suite of the owner of the goods. And the reason that wave is given to the King, is for default of the owner, that he doth not make fresh suite after, for to apprehend the fe­lon. Wherefore the Law doth impose the penaltie on the owner.

Bona fugitivorum are the proper goods of him that flyeth away for felony; But it is to be observed, that if a man fly for felony, his goods are not forfeited, untill they be found by indictment or otherwise law­fully found of record upon his acquitall, that he fled for the felony, they cannot be claimed by prescripti­on, because that things forfeited by matter of re­cord, cannot be claimed by prescription.

But waife, stray, treasure trove, wreck of the Sea, &c. which things may be gained by usage without mat­ter of record, there a man may prescribe to have Bo­na & catalla felonum: in some cases bona & catalla felonum shall be forfeited by conviction, and some­times without conviction, but alwayes when any for­feiture is of any goods of felons, it ought to appeare of record, and that is the cause that such goods can­not be claimed by prescription.

Deodanda, are goods which cause the death of a man by misadventure, and are not forfeited, untill they be found of record, & therefore cannot be clai­med by prescription, & the Jury that presents or finds the death, ought to finde and apprise the Deodandum [Page 232] also, omnia quae movent ad mortem sunt deodanda; Bona & catalla in exigendo positorum, are when any be appea­led or indicted of felony, and he withdraw or absent himselfe, for so long time as an exigent is awarded against him for his absenting (which is a flying away in Law) he shall forfeite all his goods and chattells which he had at the time of the exigent, and after be found not guiltie, 22. Lib. Ass. Looke the Statute 21. H. 8. ca. 11. concerning goods waved, and for re­stitution, &c.

Mallaryes case. 43. Eliz. fol. 111.

REndring rent to one and his heires, and to one or his heires, are all one; But a Feoffment tenendum to one or his heires is but during the life of the Feoffee; Nemo potest plus juris in alium transferre quam ipse habet: this case consisteth much upon atturne­ments. vide le case.

Wades case. 43. Eliz. in Communi Banco. fo. 114.

A Man was bound to pay 250. li. Legal. monet. Angliae, on a day certaine, the last time of the day, that so much money can be numbred is the best time, so that it be before the setting of the Sunne, and the most convenient time by Law, that both parties may meete: five shillings in Spanish money, and two pi­stolets in gold were tendered. It was resolved that the Spanish silver was lawfull money of England by Proclamation in tempore Philippi & Mariae, and so French Crownes; for the King by his Prerogative and Proclamation may make any forreigne coyne lawfull money of England: That if a man tender more then he is bound to pay, it is good, Omne majus con­tinet in se minus, That the tendring of 250. li. in bags [Page 233] without shewing or numbering the same is good ten­der, if the truth be that there was so much, vide Win­ters case, if there be any counterfeit money in the same, yet if the partie then accept the same, he can­not compell the partie to change it, or if it be a rent, or for non-payment a reentree, yet the once accep­tance is good, and the lessor may not reenter.

Foliambes Case, 43. Eliz. fo. 115.

IN a writ of Estrepement, the Sheriffe may resist them that will make wast, or cut downe Trees, and if he cannot otherwise, he may Imprison them, and may make warrants to others, and he may take Posse comitatus for his aide. A writ of Estrepement ly­eth in an Action of wast, as well before judgement as after.

Olands Case, 44. Eliz. Banco regis. fo. 116.

A Feme Copy holder Durante viduitate, sowes the Land, and taketh Husband, the Lord shall have the Corne, for although her estate was incertaine, yet it was determined by her owne act; so if Lessee at will sowe the Land, and determine the will, but if Baron and Feme are Lessees during the coverture, and the Baron sowe the Land, and they are after Divorsed, Causa praecontractus, the Baron shall have the Emblements, because this is the Act of the Court.

Pynnells Case, 44. Eliz. fo. 117. com. banco.

PYnnell brought an Action of Debt upon an Obli­gation against Cole, of 16. l. for payment of 8. l. 10. s. on the 11. of Nov. 1600. The Defendant [Page 234] pleaded, that at the instance of the Plaintiffe before the sayd day he paid him 5. l 10. s. and it was re­solved by all the Court, that the payment of a les­ser summe in satisfaction of a greater summe, cannot be satisfaction for all, so that by no possibility a mea­ner summe may satisfie the Plaintiffe of a greater; but the Gift of an Horse, Cowe, Robe, &c. in satis­faction is good.

But in this case it was resolved, That the pay­ment of a parcell, and acceptance thereof before the day, in satisfaction of all, is a good satisfaction, in re­spect of the circumstance of time; for paradventure, parcell of that before the day, may be more bene­ficiall unto him then the whose summe of money at the day, and the value of satisfaction is not materiall, for if I be bound to pay you 10. l. at Westminster, and you request me to pay 5. l. at Yorke, and you will accept the same in full satisfaction of the 10. l. this is a good satisfaction in respect of the place, but in this case, the Plaintiffe had judgement for the in­sufficient pleading, for he did not pleade that he had paid 5. l. 10 s in full satisfaction, (as by Law he ought) but pleaded the payment of part generally, and the Plaintiffe accepted the same in full satisfacti­on, and alwayes the manner of the tender, and of the payment shall be directed by him that maketh the tender and payment, and not by him that ac­cepteth it.

Edriches Case, 1. Jacobi. com. banco. fo. 118.

A Rent charge is granted to B. for the life of C. the Grantor leaseth for life to D. the remain­der in Fee to E. C. and D. dyes, B. distraines E. for all arreares, this is good by the Statute of 32. H. 8. cap. 37.

Whelpdales Case, 2. Jacobi. com. banco. fo. 119.

IN Debt brought against one joint Obligor the De­fendant pleads Non est factum, adjudged for the Plaintiffe.

1. Resolved, he may pleade in abatement of the Writ, but not Non est factum, for every one is obliged in the intirety, therefore if Debt be brought against both, and one is outlawed, the other who appeares shall be charged with all.

2. If a Deede be avoidable by plea he shall not pleade, Non est factum.

3. If a Deede be made voyd by Statute he shall not pleade Non est factum, but shall avoide it by plea, but if a deede by matter Ex post facto, become not his deede, he may pleade Non est factum, as if one deliver a deede to deliver over to I. S. who refuseth, &c.

Longs Case, 2. Jacobi banco regis. fo. 120.

EXception to the Inditement of Murder, the In­ditement was taken, Infra libertatem villae de C. and C. where the Torte is done, is not said to be within the Liberty. Response, that to Inditements certainty to a certaine intent in generall sufficeth, and not to every particular intent, for that is, Nimia subtilitas, and it shall be intended, that the Ville of C. is within the liberty of C. the Indictment is, Quod dedit vulnus super anteriorem partem corporis subter mamil­lam, where it should be Mammillam. Resolved, that false Latine shall not quash an Indictment, if the word be sensible, and these two words are good La­tine, also this is superfluous, for Super anteriorem par­tem corporis, is sufficient, and shall be intended the Trunke betwixt the Neck and Thighs. 3. Vulnus, [Page 236] where it should be Plaga, over-ruled because Synoni­ma. 4. Le depthe is not shewed, it was said, that it did penetrate all his body, whereby it appeareth that it was mortall. 5. It is said, that the wound did penetrate his body, and not the Bullet, this is significant enough. 6. Percussit wanteth, and for this cause the Indictment was quashed, for in all ca­ses of death this ought to be except in case of poy­soning, and for this last error the Outlary was rever­sed, and H. D. was discharged.

Saffins Case, 3. Jacob. fo. 123. com. banco.

A Man maketh a Lease for yeares to commence after the end or determination of a former Lease. In esse. The first Lease endeth, the second Lessee doth not enter, but he in reversion entereth, and maketh a Feoffement, and levyeth a fine with Proclamations, and five yeares passe without entry, or claime of the second Lessee. If this fine be a Bar, was the Question, and it was resolved to be a Bar, for the Statute of 4. H. 7. c. 24. speakes of interest, and a Lease for yeares is an interest within the Sta­tute, so o [...] tenant by Elegit, &c.

De Libellis famosis 3. Jac. fo. 125.

A Libell may be made as well against a private man as against a Magistrate, Non refert, whither the Libell be true, or whither the party be of good fame, or ill fame, for it inciteth all the same Family, Kindred, or Society to revenge, and so tendeth by consequence to the effusion of blood. It was resol­ved in the Starre-Chamber, 44. Eliz. Hallywoods Case, that if any finde a Libell, and would preserve himselfe out of danger, if it be against a private man, [Page 237] the finder may eyther burne it, or presently deliver it to a Magistrate, but if it concerne a Magistrate or publick person, then he ought to give it to a Magi­strate. A Libell may be as well by words, Verbis aut cantilenis, as Writings, and by Pictures or Igno­minious Signes, as Gallowes, &c. The Punishment is by Indictment, as in the Starre-Chamber.

Palmers Case, 8. Jac. fo. 126. banco regis.

THe Gardian in Chivalry shall have the single va­lue of the Marriage of the Heire without ten­der, otherwise the Heire may defeate the Lord by Marriage, or goe beyond the Sea, and so prevent the Lord of any tender, if it were requisite.

Caudreyes Case, 33. Eliz. in Trespasse.

THe Jury found the Statute of 1. Eliz. cap. 1. and cap 2. and that the Plaintiffe was deprived for Preaching against the Booke of Common Prayer; by the Bishop of London, una cum assensu, &c.

Resolv. 1, The deprivation was good for the first offence, because the Act of 1. Eliz. for uniformity of Common Prayer doth not abrogate 1. Eliz. for Ecclesiasticall Jurisdiction without negative words, and by an expresse proviso the Jurisdiction of the Bishop is saved.

Resolv. 2. That sentence given by the Bishop by assent of his Collegues, ought to be allowed by our Law.

Resolv. 3. The Commissioners shall be intended Subjects borne, &c. Stabitur praesumptionj, &c. Also it is found that the King authorized them, Secundum formam Statuti.

Resolv. 4. The Act of 1. Eliz. for Ecclesiasticall [Page 238] Jurisdiction was onely declaratory, for the King be­ing an absolute Monarch, and head of the body po­litick, had plenary power to minister justice to his Subjects in Causes Ecclesiasticall and temporall. See Circumspecte agatis. 13. E. 1. and Articulj Clerj. 9. E. 2. Reges sacro oleo uncti sunt spiritualis jurisdictionis ca­paces See there diverse judgements, Lawes, and Acts of Parliament, cited to prove the Kings supre­macy in Causes Ecclesiasticall.

Bruertons Case, 36. Eliz. In the Court of Wards. Fol. 1.

LORD and Tenant of three Acres, by Homage, Fealty, a hawke and Suite of Court, the Tenant makes a Feoffe­ment of one Acre, the Feoffee by the common Law shall hold by all in­tire services, annuall and casuall, and the Statute of Quia emptores Terrarum, doth not ex­tend to intire services, but by the Statute of Marlebr. c. 9. the Feoffees shall make but one Suite, and he who doth it shall have Contribution against the others, if they are severally infeoffed, otherwise if jointly.

2. Intire services shall be multiplied by the Act of the Tenant, and extinct by the Act of the Lord, as if he purchase part.

3. By Act of the Lord intire service for his private benefite is extinct, otherwise if it be for the publick good, for works of Charity, Devotion, or administra­tion of Justice.

4. If part comes to the Lord by act in Law, yet [Page 240] the intire service remaines, except in Case where Contribution is to be made, for the Lord shall not contribute.

5. If part comes to the Lord by Act in Law, and of himselfe as by recovery in a Cessavit, all the in­tire services are gone.

Markals case, 35. Eliz. com. banco. fo. 3.

IN a Formedon in the remainder by an Infant of a remainder limitted to his Father, and his heirs, the tenant cannot pray, that the parol may demur, but in a Formedon in the reverter he may: In acti­ons auncestrell, the Tenant may pray that the parol may demurre, because a right onely discends to the Infant, and the Law will not suffer him to sue, for feare that he may loose for want of understanding; but in possessory Actions he cannot, because then e­very one will put Infants out of possession, and it would be mischevious if they should not regaine their possession untill full age: So it is in all Writs, where the cause of action happens in the time of the Infant. And as to Actions auncestrell, they are of two sorts. Droiturell and possessory, the first is, where a right onely discends from the Auncestor, and the Infant ought to lay the explees in the Aunce­stor, and there the Tenant (without plea pleaded) may pray that the paroll may demurre, but if the Auncestor were never in possession (as in this case he was not) and the Infant himselfe is the first in [Page 241] whom it vests there (without plea pleaded) hee shall not pray that the Parol may demurre: but if a right discend from an auncester who was in possessi­on, although the Action doth not discend, the Te­nant may pray that the parol may demurre, as if Non compos mentis alien and dye: In actions auncestrell possessory, the parol shall not demurre without plea: but if at the common Law the Tenant had pleaded a feoffement of the auncestor, then he may pray, &c. but the Statute of Gloucester, cap. 2. aideth that, in writs of Cosinage, Besaiell, and aiell, but this extends not to other actions, in a Formedon in the discend­er, where an Infant recovers, but a limitted estate the Parol shall not demurre without plea, in an Assize, or assize of Mortdauncester, the Parol shall not demurr because the Jury is to appeare the first day, and try all things.

The Statute of Westm. 1. cap. 46. Age is taken a­way in entry upon disseisin, where fresh suite is made, but an Infant shall have his age in all reall Actions, where he is in by discent, and the Action is not foun­ded upon his owne wrong, except in Nuper obijt, and Partitione facienda, where both are in possession or attaint, for the mischiefe of the death of the Petty Jury. The Statute of West. 2. cap. 40. Ousteth the age of the Vouchee in cuj. in vita. and Sur cuj. in vita, although that the Tenant will answer, if the parol ought to demurre, yet the Court ought to award that the parol shall demurre.

Sir John Molyns Case, 40. Eliz. in Scaccar. fo. 5.

KIng Edward the third, Lord, Abbot of Westmin­ster, Mesne, and C. Tenant. C is attainted of Treason, the King grants to Sir Jo. Mo. Tenendum de nobis & álijs capitalibus dominis feodi illius per servitia, [Page 242] &c. the Mesnalty is revived. Obj. 1. That the te­nure shall be Per servitia inde debita, at which time no service was due to the Mesne. 2. An expresse te­nure of the King is limitted, and it cannot be im­mediatly holden but of one. To the first it was an­swered, that there are sufficient words to renew the Mesnalty, because the intention of the King, ap­peares to be so, and it is reasonable, that the Mesne who offended not, should not suffer losse. 2. It shall be holden imediatly of the Abbot, and me­diatly of the King.

Wheelers Case, 43. Eliz. in Scaccario. fo. 6.

THe King grants Land Tenendum by a Rose, Pro omnibus servitijs, this is Socage in chiefe, and the tenure shall be by fealty and a Rose, and (Pro omnibus) is to be intended of other services which the Law doth not implie.

Ferrers Case. 41. Eliz. Com. Banco. fol. 7.

IF one be barred by plea to the Writte, hee may have the same Writte againe; if by plea to the acti­on of the Writte he may have his right action: If the plea be to the action, and he be barred by Judge­ment upon demurrer, confession, or verdict, in per­sonall actions it is a barre for ever, and in reall acti­ons he is put to a Writte of higher nature, as barre in assize barreth one in Entry in nature of an assize, but he may have an assize of Mortdaumester, &c. But barre is not perpetuall if those who are barred [Page 243] have not the meere right, therefore the heire in taile who is barred shall have the same action, so of the successor of a Parson, if he doth not pray in ayde of the Patron and Ordinary: He who lost by default be­fore the Statute of Westminster 2. cap. 4. was put to a Writte of right, and if he could not have this Writte, he was without remedy: In case where a Writte of Entry in the post lyeth now, no remedy was before the Statute of Marlebridge, cap. 29. but a Writte of right. See there divers inconveniences which insue upon the breach or alteration of the auncient and fundamentall rules of the Common Law: Interest Reipublicae ut sit finis litium.

Spencers case. 45. Eliz. Com. Banco. fol. 9.

IF a formedon abate for undue summons, the de­mandant may have another by Journeys accompts.

1. Resol. If a Writte abate by default of the deman­dant himselfe, he shall not have another Writte by Journeys accompts, otherwise it is if by default of the Clerke or Sheriffe as in this case: If a Writte a­bate for nontenure of all, he shall not have, &c. but if a Praecipe abate for non-tenure of parcell, he shall have another; so if it abate for joyntenancy of part of the demandant he shall not have a new Writte, be­cause he had notice, otherwise it is of the part of the tenant: And this Writte shall be alwayes betwixt the parties to the first Writte, and of the same quan­tity of acres: A Judiciall Writte shall never be sued by Journeys accompts, because it shall never abate for forme. 2. The second Writte is quasi, a continu­ance [Page 244] of the first Writte, therefore all pleas which re­late to the purchase of the Writte shall be pleaded from the purchase of the first Writte, and costs of the first Writte shall be recovered. 32. E. 3. Journeys accompts. 16. 15. dayes were allowed.

Jentlemans case. 25. Eliz. concerning Judges of Courts. fol. 11

IN the Hundred Courts the Sutors are Judges, in the Court of Pypowders, the Steward is Judge; In a Leet, the Steward is Judge; In a Court Baron, the Sutors which are by the common Law are Judges, Rex sectatoribus Curiae, &c. Vobis mandamus, &c. ad ju­dicium reddendum, &c. procedatis: but in Redisseisin the Sheriffe is Judge, by the Statute of Merton. cap. 3. and in the Tourne.

Morrices case. 27. Eliz. Com. Banco. fol. 12.

IT was adjudged, that after the act of 28. H. 8. ca. 1. although joyntenants be compellable to make par­tition by Writte, as well as Copartners, yet they may not make partition by words, as Copartners may doe by the common Law. If two joyntenants make par­tition by Writte, the warranty remaineth, otherwise it is if it be by deed by Consent.

Cases of pardon. 29. Eliz. fol. 13.

BƲrton Parson of Isbock in Leic: was deprived Anno 12. El. for committing Adulterie, and after by the generall pardon 2. Apr. 13. El. the offence of a­dulterie (int. alia) was pardoned, before the 14. of February then last past. And it was said, that before the pardon, that crimen adulterij praed. transivit in rem [Page 245] judicatam, and therefore the sentence should remaine in force; And therefore untill the sentence were re­versed the deprivation was in force. But it was resol­ved, that Burton by vertue of the said pardon is be­come Parson againe, without any sentence declaring the said deprivation to be voyde; For by the pardon the adultery which was the cause of the sentence is discharged, and by consequence, all that which did stand or depend upon the same foundation is also discharged, vide 20. El. Dier

A. was bound in a Statute of 20. li. to B. B. sued Execution, and the Lands of A. were delivered in Execution, and after B. maketh Defeasance to A. by Indenture, that if A. doe pay to B. 8. li. at a certaine day, that then the Statute to be voyde; And it was adjudged that although the Statute was executed, yet the Defeasance of the Statute was sufficient in Law to defeate as well the Statute, as the Execution thereof; For the Statute is the foundation of all, and if that be defeated, all that is builded on the same, shall be defeated also. 20. ass. pla. 7. Burglary was excepted out of the generall pardon of 28. Eliz. by that the attainder of burglary is excepted, for the offence remaines after judgement, and is the founda­tion of it.

Arundells case. 36. Eliz. Banco Regis. fol. 14.

AN Inditement of murther in King-streete in W. and the visne from W. and it was vitious, for it ought to be from the most certaine place, that is the Parish, for W. being a Citie it shall be intended that it is greater then the Parish, and therefore a new Venire facias was awarded.

Treports case. 36. El. Banco Regis. fol. 14.

A. Tenant for life, remainder in fee to B. both by Deed indented, joyne in a Lease to Treport; the question was, whether the same shall be adjudged in Law, the Lease of both of them or not; And it was resolved, that it was the Lease of A. during his life, and the confirmation of B. And after the death of A. it was the Lease of B. and the confirmation of A. and because the plaintiffe had declared of a joynt demise of A. and B. it was adjudged against the plain­tiffe in an Ejectione firmae. If tenant for life, and he in remainder joyne in a Lease, rendring rent, tenant for life shall have the rent during his life.

Edens case. 37. Eliz. Banco Regis. fol. 15.

RIens passa by Letters patents shall be tryed where the Land is, & not where the patent beares date, for the Patent is not traversed, but the effect of the issue is, whether the Queene had the said Land to grant or not.

Colyers case. 37. Eliz. Com. Banco. fol. 16.

ONe demiseth to his daughter for life, and after to his brother, paying 20. s. to J. S. the bro­ther had fee for the summe to be paid by him, for otherwise he may pay the 20. s. and die without sa­tisfaction; but if the payment be to be made out of the profits of the Land, he shall have but for life, for there he can be at no prejudice.

Wyldes case. 41. Eliz. Banco Regis. fol. 16.

A Man deviseth Lands to the husband and the wife, and to the children of their bodies; The questi­on was, whether they have an estate for life, or an inheritance in taile. And it was resolved, that if they had children at the time of the Demise made, then they had but an estate for life; But if they had no children, then they had an estate of inheritance in taile.

Sir Edward Cleeres case. 42. Eliz. fol. 17.

A Man is seized of three acres of Land houlden in Capite, and maketh a Feoffment in Fee of two of them, to the use of his wife for her life; and after maketh a feoffment by Deed of the third acre, to the use of such persons, and of such estate and estates as he should limitt and appoint by his last Will in wri­ting; And afterwards by his last Will in writing, hee Devised the said third acre to one in fee; and if this Devise was good for all the third acre, or not, or for two parts thereof, or voyd for all, was the question; And it was adjudged, that the Devise was good; For the Feoffor by his last Will limitted the estates ac­cording to his power, reserved to him upon the Fe­offment, the estates should take effect by force of the Feoffment, and the use is directed by the Will; So as in this case the Will is onely directory; But if he declared his Will by writing without any reference to his authoritie or power, as owner of the Land, and to limitt no use according to his power. In this case the Land being houlden in capite, the Devise is good for two parts, and voyd for the third part. If a man make a Feoffment in Fee of Lands in capite, to [Page 248] the use of his last Will, although he Devise the Land with reference to the Feoffment, yet the Will is voyd for a third part; for a Feoffment to the use of his last Will, and to the use of him, and his heires is all one.

In this case when the partie had conveyed two parts to the use of his wife, by his act executed hee cannot as owner of the Land Devise any part of the residue by his Will, and therefore because he hath not an election, as in the case put before, whether to limit according to his power, or Devise the same as owner of the Land, (for in the case at Barre as ow­ner of the Land, (having conveyed two parts to the use of his wife,) he cannot make any Devise.) The Devise of necessitie must inure to a limitation of the use, otherwise the Devise should be altogether voyd.

Packmans case. 37. Eliz. Banco Regis. fol. 18.

WIlson brought an action upon the case upon a trover against Packman. The case was thus; A man dyed intestate, and the Ordinary committed the administration to a stranger, and after the next of kindred of the Decedent sued out a Citatiō in the Court Christian, to have it repealed, and (pendente lite) the administrator to defeate the plaintiffe selleth the goods of the decedent to the defendant, and after the Letters of administration were revoked by sen­tence, and the first sentence anulled and made voyd, and the administration granted to the plaintiffe. And it was resolved, that the action did not lie; and in this case the diversitie was houlden, betweene a suite by Citation, for to countermand or revoke the for­mer administration, and an appeale, which is alwayes a reversing of a former sentence; for an appeale doth suspend the former sentence, otherwise of a Citation. [Page 249] And in this case because the first administrator had the absolute propertie of the goods in him, without question he may sell them to whom he will, and al­though the administration be revoked afterwards, yet that cannot defeat the Sale. But if the sale or gift be by covine, it is voyd against Creditors by the Statute of 13. El. but it is good against a second ad­ministrator. And if an administrator wast the goods, and afterwards the administration is granted to ano­ther, yet every debtor shall charge him in debt. An administration may be granted upon condition, and whatsoever the administrator doth before the condi­tion broken, is good.

Gregories case. 38. El. Banco Regis. fol. 20.

VErba aequivoca & in dubio posita, intelliguntur in dignio­ri & potentiori sensu, secundum excellentiam, as if the speech be or writing of J. S. generally it shall be in­tended of the father, where the father and sonne are both of a name; and if it be of two Brothers both of a name, it shall be intended of the eldest, for these are more worthy; so where the Statute of 4. & 5. Phil. & Ma. speaketh in any Court of Record it shall be intended of the foure Courts at Westminster, be­cause the Kings Attorney is attendant there.

Michelbornes case. 38. Eliz. Banco Regis. fol. 21.

THe Court of Marshalsea, doth onely hould plea of actions of trespasse, within the verge, if the one of the parties be of the Kings houshold, and in contracts and Covenants, where both parties are of the Kings houshold, and of none other actions, nor persons, by the Act of Articuli super Chartas. 28. E. 1.

Butler & Goodalls case. 40. El. Banco Regis. fol. 21

IT was resolved upon the Statute of 21. H. 8. that a Parson of a Church ought to stay and be Com­morant upon his Rectorie (viz.) upon the Parson­age-house, and not in any other house, although it be within the Parish, but lawfull imprisonment without covine, is a good excuse of non-residence: also if there be no Parsonage-house, for impotentia excusat Legem; also sicknesse without fraud, if the patient remove by advice of his Councell in Physicke bona fide, for better aire, and recovery of his health.

Ambrosia Gorges case. 40. El. fol. 22. in Cur. Wardorum.

IT was resolved, that the Father shall have the Wardship of his Daughter and heire apparent, so long as shee continueth his heire apparent; But when the Father hath issue a sonne, then shee shall be in ward to the Queene; for then he is heire apparant, and not the Daughter. Ambrosia was daughter of Sir Arthur Gorge by Douglas, Daughter and heire of Vi­count Bindon, and was married to Francis Gorge, which Francis dyed, when Ambrosia was of ten yeares of age. It was resolved also that the Queene not­withstanding the said marriage, should have the Wardship of the said Ambrosia; for it was not a com­pleat marriage, because to every marriage there ought to be a consent; For consensus non concubitus fa­cis matrimonium, & consentire non possunt ante annos nubi­les; And upon conference had with the Civilians, it was agreed after such a marriage, if the husband and the wife marry again, it shall not be counted Bigamie And 30. E. 1. tit. Gard. 156. if the ancestor marry his heire infra annos nubiles, and dye, the Lord shall [Page 251] recover the body of the Infant, because the heire may disagree; It was agreed that the grandfather shall not have the wardship of the sonne within age, the father being dead in his life time.

Marquesse of Winchester his case. 41. Eliz. fol. 23. in Banco Regis.

BY the Law it is not sufficient, that the testator be of memory (when he makes his Will,) to an­swer to ordinary and usuall questions, but he ought to have a disposing memory, so as he is able to make disposition of his Lands with understanding and rea­son. And this is such a memory, which is called safe and perfect memory, otherwise a Prohibition lyeth at the common Law generally, to stay all the pro­ceedings in the spirituall Court, as the probate of the Will, &c. untill this Suggestion be tryed at the com­mon Law.

Reades Case, 42. Eliz. banco regis. fo. 24.

IN trespasse the Defendant makes Title, for that A. W. was seised in fee, and leased to him, the Plain­tiffe maketh title by discent, and traverseth the Lease and good, for it may be true, that A. W. was seised, and yet that a discent was cast to the Plain­tiffe, therefore the Lease is most materiall to be tra­versed.

Helyars Case, 41. Eliz. banco regis. fo. 24.

IN a Replevin the Defendant avoweth by grant of a terme by I. A. to S. from whom he claimeth, the Plaintiffe pleads in barre that I. A. married T. who by a former deed granted the terme to the plaintiffe, [Page 252] and traverseth the grant made to S. and vitious, for he who claimeth by the first assignement shall not traverse the second, but he who claimes by the se­cond shall traverse the first. But the first Feoffee shall traverse the last feoffment, and the last feoffee shall not traverse the first feoffement, because fee may be gained by disseisin after the first feoffement, but a Lease for yeares caanot.

Ruddocks case, 41. Eliz. banco regis, fo. 25.

IN replevyn against six the Plaintiffe recovers, the Defendants bring error, the Plaintiffe pleads the release of one of them not good: Where diverse are to recover a personall thing, the release or default of one barres all, but not where they are to discharge themselves of a personalty, if they are compelled to joyne, as in error and attaint, otherwise in Outlary, because not compellable to joyne, for where they are to discharge themselves, they have no joynt in­terest, and although they shall have their damages againe, it shall be intended that they paid them of their severall goods, otherwise it may be doubted, if Execution had beene made of goods, which they have joyntly.

Sharps case, 42. Eliz. fo. 26. com. banco.

IF a man make a feoffement in Fee, or a Lease for life, and say to the Feoffee (being eyther on the Lands of within the view) Enter into this Land and enjoy the same, according to this deed, &c. this is a good livery, but the delivery of the deede upon the Lands without any further ceremony or saying, doth not amount to a livery. Throughgoods Case. 9. Jacob, in the nineth Booke. The actuall delivery of [Page 253] a Writing, sealed to the party without any words, is a good livery, but not a livery of seisin, although the Party be upon the ground.

If I deliver a deede unto the feoffee or Lessee of the Messuage, mentioned in the deede in the name of seisin of the said Messuage, and of all the Lands, tenements, &c. in the same contained, or other such like words, without any ceremony, or act done, this is a good seisin.

The Case of Souldiers. 43. Eliz. fo. 27.

THe Statutes of 7. H. 7. cap. 1. and 3. H. 8. cap. 5. against Souldiers who run away, are acts perpetuall, for the word King includeth all his suc­cession, and a gift to the King inureth to his Succes­sors.

Vicount Mountagues Case, 43. Eliz. in Scaccar. fol. 27.

VIcount M. with License of the K. suffers a recove­ry to B. and D. to uses with power of revoca­tion and limitting of new, and revokes and limits new uses, the King shall have no fine for aliena­tion.

1. Resolved, if the King doth license to alien to one, and alienation is made to the use of another, the King shall not have a fine, for although that the King was not informed of his Tenant, yet the use is executed by the Statute of 27. H. 8. which can doe no wrong, and the proviso in the Statute, that a fine shall be paid for executing of uses, is to be intended of uses raised by Covenant, or declared upon a Fine, Feoffement, &c. when no License of alienation is obtained.

[Page 254]2. Although that by revocation, and new limit­tation of uses, the tenant of the King be altered, yet no fine is due, because all ariseth out of the estate of B. and D. which was made with License.

Greenes Case, 44. Eliz. banco regis. fol. 29.

TEnant for life, of a Mannor to which an advow­son is appendant, the remainder in Fee to I. S. presenteth one, who at the suite of the Tenant for life is deprived for not reading the Articles; but no notice is given to the Patron, the Queene by lapse presents the Defendant, Tenant for life, and his in­cumbent die, he in the remainder presents the Plain­tiffe Greene who recovereth.

1. Resolv. Although the Patron were party to the Suite, and so had notice, yet lapse shall not in­curre without notice given by the ordinary, as the Statute speakes, and the notice ought to be speciall, that he did not reade the Articles, and therefore was deprived, and generall notice is not sufficient.

2. The Church is voyd, Ipso facto, by the Statute of 13. Eliz. without deprivation.

3. If the Queene present Ratione Lapsus, where shee is Patron, this is voyd, A fortiori, when shee had no title at all.

4. The Patron is not put to a Quare impedit, by presenting him who read not the Articles, nor by Collation, but by Collation of him who had right to Collate, the Patron is put out of possession.

5. The Queene may be put out of possession of an advowson, because it is transitory, but shee cannot be put to a Writ of right of advowson, for none can gaine the Inheritance from her by wrong.

Boothies Case, 3. Jacobi. com. banco. fol. 30.

THe condition of an Obligation, is, to deliver an Obligation to the Obligee, and to acknowledge satisfaction, it must be done in convenient time, for acts transitory to be done to the Obligee, although a place be appointed, shall be done in convenient time, and acts of their nature locall, ought to be performed in convenient time, if concurrence of the Obligor and Obligee be not requisite: Also here the delivery of the bond being transitory, and the acknowleding satisfaction such an act as may be per­formed in the absence of the Obligee, they ought to be done in convenient time, without request: but if the Act be locall, and their concurrence necessary, the Obligor had time, during his Life, if not hasten­ed by request: If the concurrence of the Obligor and a stranger be necessary, it ought to be done in convenient time, if concurrence of the Obligee and a stranger, it ought to be hastened by request: And alwaies, if the Act to be done is not for the benefit of the Obligee, but a labour to the Obligor, or a stranger, there he had time during his Life.

Fitz-Williams Case, 2. Jacobi. banco regis. fol. 32.

BAron and Feme Tenants for life, and to the heires of the body of the Baron, the Baron sole is vouched, in a common recovery, the taile is barred. Copledicks Case, 3. Report. 2. Resol. If Tenant in taile suffer a recovery to his owne use, the remainder to his wife with diverse remainders over, with power of revocation and limittation of new uses by any such writing, he revoketh all the remainders except that to his Wife, and by the same deede limits new uses; [Page 256] this is good, for by any such writing shal be intend­ed the same or any such, and it may be by the same deede, for, first it takes effect as a revocation. 2. By limittation of new uses, and there are not more in­stances then one in it. See there Leaper & Wroths Case, cited 30. El. to prove, that powers whereby the in­terest of Strangers shall be changed, shall be taken strictly, as a power to make leases for twenty one yeares, he cannot make a Lease for 21. yeares, to commence in Futuro.

The Bishop of Bathes Case. 3. Jacobi. com. banco. fo. 34.

THe B. 18. H. 8. Leaseth to E. and R. for sixty yeares, proviso, if they dye within the terme, that the B. and his Successors shall reenter. E. dyes, the B. dyes, the Successor Leases to C. Cum post sive per mortem &c. praedict. R. acciderit vacare, for sixty yeares with confirmation. R. dyeth: Resolv. every Lease ought to have a certaine beginning, and the continuance ought also to be certaine, eyther by expresse number of yeares, or by reference to an ex­presse certeinty, or where a Lease may be reduced to a certeinty by matter, Ex post facto. Agreed, the second Lease vests presently in poynt of interest, to take effect in possession at the end of the first Terme, if by none of the accidents the first Lease become voyd in the meane time, and then the Lease shall commence at the first accident which doth happen, and the Lessee hath no Election.

The Deane and Chapter of Worcesters Case. 3. Ja­cobi. fo. 37.

THe D. and Ch. seised of a Mannor in Fee, in which were Copy-holds grantable for three lives, for 8. s. 8. d payable quarterly, and herriota­ble, grant a copy-hold for the Life of three, reser­ving the old rent halfe yearely, this is not voyd by 13. Eliz. cap. 1. Resolved, the grant of a copy-hold for the life of 3. is good, for although there may be an occupancy, yet it is not inconvenient, for an occupant shall be punished in wast. 2. Grant of a Copy-hold is a demise by the intent of the Sta­tute, for in Law it is a Lease at will. 3. The omissi­on of Herriot doth not make it voyd, because the annuall rent is reserved. 4. It is sufficient that the yearely rent be reserved twice in the yeare, for the Statute saith, yearly, which maketh a difference be­tweene this Case, and the Lord Mountjoyes Case, in the fifth Report.

Bellamyes case, 3. Jacobi. com. banco. fol. 38.

A Lease upon condition, that the Lessee shall not alien without License, Assignee of the Lessee pleads that the Assignement was with License, and shewed not forth the Deede of License. 1. Because he did not claime by it. 2. Because the License was, Ex provisione hominis, and not Ex institutione legis. 3. Because it was executed and good.

Henry Finches Case, 3. Jacobi. banco regis. fol. 39.

A Grant of a rent charge out of diverse Mannors, &c. in the Parishes of E. and W. Aut alibi dictis [Page 258] marerijs spectantur, and out of Lands, which is not par­cell of any of the Mannors, these are not charged with the distresse, for, Alibi doth not charge more Land then is parcell of those Mannors, but all par­cells of the said Mannors out of the said Parishes.

Sir Anthony Mildmayes Case, 3. Jacob. banco regis. fol. 40.

1. REsolved, a perpetuity is against the rules and pollicy of the common Law. 2. It is impos­sible that an estate tayle shall cease, before that Te­nant in taile dyes without issue, and an estate cannot be made to continue as to one, and determine as to another except by Statute. 3. A gift in taile upon condition that he shall not suffer a common recove­ry, is voyd, because he had power by the Law. 4. It is a voyd saying, that his estate shall cease, if he goe about, &c. for, Non officit conatus nisi sequatur effectus. Also, many ambiguities will arise thereupon because the Law doth not define it, and it is so uncertaine, that is not traversable.

Blakes Case, 3. Jacobi. com. banco. fo. 43.

AN accord with satisfaction is a good barre in a Writ of Covenant, because the duty accrueth not meerly by the deede, but by a torte subsequent, together with the deed, and it is a good barre in an attaint, because this is not founded upon the record onely, but upon the false Oath also: In all cases where an arbitrament is a good Plea, an accord with satisfaction is also, and so generally in all Actions where damages onely are to be recovered.

Higgins Case, 3. Jacob. com. banco. fo. 44.

IF a man have judgement upon an Obligation, so long as this judgement is in force, he may not have a new action upon the same Obligation. For, Interest reipublicae ut sit finis litium & infinitum in jure re­probatur. A Statute Staple is but an Obligation re­corded, and one Obligation cannot drowne another, although they be both for one Debt, and the Obligee may choose upon whither he will bring his Action. 11. H. 4. and 2. Jac. Sir William Cornewalles Case, and Branthwaytes Case, and in every judgement, the De­fendant is amerced, and so he shall be amerced, in In­finitum.

Dowdales Case, 3. Jac. com. banco. fol. 46.

IN Debt against an Executor, the Defendant pleads, fully administred, the Plaintiffe saith, that he hath assets at E. the Jury found assets in Ire­land.

1. Resol. when the place is materiall the poynt in issue cannot be found in another place. 2. Where the place is named but for conformity assets may be found in another County. 3. In a generall issue, the Jury shall finde all materiall locall things in ano­ther County. 4. The Jury by a meane shall trie locall things in another County, as a release in a forreigne County, the Jurors shall assesse damages for the pro­fits of the Land in the other County. Multa concedun­tur per obliquum quae non, &c. but in case of felony, the Tryall shall be where the offence was done. 5. The finding of assets is the substance, and that it is in Ire­land is surplusage: A thing done beyond the Sea [Page 260] shall be tryed here, if the foundation of the Action be here.

Boswells Case. 3. Jac. banco regis, fol. 48.

IN a Quare impedit, judgement was given, to remove the incumbent of the Queene, not party to the Writ who was presented, pending the Writ. Resolv. That by the common Law, by admission and insti­tution, the Usurpor gaines the inheritance of the ad­vowson, without regard of the nonage of the Patron, because he is in by judiciall act, and the Bishop shall be supposed not to doe wrong to the Patron, and the incumbent shall not be disturbed to excercise his function, but the King shall have a Quare impedit at the common Law. Collation doth not put him who hath right to present, out of possession, but if one have right to Collate it doth, an infant by the Act of W. 2. c. 5. shall have a Quare impedit, if a man usurp upon an infant who had a Mannor, to which, &c. by discent, who at full age infeoffeth B. the Church voideth, &c. by the usurpation the infant was out of possession, and his right passed not, and seems the In­fant is without remedy: If a Clerke commeth in by course of Law, this gaineth not the inheritance a­gainst the right Patron who was not party to the writ. The King shall not recover damages by this Statute, for he is not within the first branch, Si tem­pus semestre transierit, nor within the second Branch, for that depends upon the first, yet he shall count to damages. An incumbent shall not be moved if he be not named in the writ, and if he be not admitted, &c. pending the writ, and lapse shall not incurre if the Bishop be named in the Writ, otherwise if he be not: If he who is presented pending the Writ be in by rightfull Patron or not, yet he who recovereth in [Page 261] a Quare impedit, shall have a generall Writ to the Bi­shop, which he must execute of necessity, and after that, the parties may try their titles as the Law shall determine.

Countesse of Rutlands Case. in the Starre-Chamber. 3. Jacobi. fo. 52.

THat the person of a Countesse or a Baronesse may not be arrested for Debt or trespasse, for al­though in respect of their Sex they may not sit in the Parliament, yet they are Peers of the Realme, and shall be tryed by their Peers, Stat. 20. H. 6. Peers of the Realme may not be sworne in any in­quest; a Countesse in Marrying with a Husband, doth loose her Name of a Countesse.

If a Baronesse. &c. by Marriage, marry againe un­der the Nobility, shee looseth her dignity, but if she be Noble by Birth, or descent, yet whomsoever she Marryeth, she remaineth Noble; for Birth-right is Character intelebilis, and that which is gained by Marriage, may also be lost by Marriage.

A Sheriffe ought not to dispute the Authority of Courts, but he ought to Execute the Writs to him directed, for thereunto be they Sworne. Serjeant at Mace upon a cap. ad satisfaciendum, came to the the said Countesse in Cheapside, being in her Coach, and touched her body with the Mace, and said, I ar­rest you Madame at the Suite of S. and those were all the words that were us'd, & therupon compell'd the Coach man to carry her unto the Counter-gate in Woodstreete, and the Sheriffe tooke her into his house. In this Case it was resolved, that the Sheriffe, Bay­liffe, &c. upon the Arrest ought to shew at whose suite, out of what Court, for what cause it is, and when the processe is returnable, and that this generall Arrest [Page 262] of the Countesse cannot be said, that it was by force of the said Writ of Execution, and that this Arrest was of the Serjeants owne head, without warrant, and against Law, and that the said Countesse was falsly imprisoned, but she remained in the Sheriffes custody 7. or 8. dayes, untill shee paid the Debt, but because the Arrest was by a fained Action, entered in the Counter, the Serjeants were sentenced.

The Lord Chandos case. 4. Jacobi. fol. 55.

THe King grants to B. in taile, and in considerati­on of the surrender of the Letters Patents by force, whereof the King is seised in fee, granteth to him and his wife, and to the heires of B. the reversi­on passeth, for the recitall that the King was seised in fee, was but the Collection of the King, and no part of the consideration or suggestion of the party; And when the King grants land in posse [...], if he had but a reversion this shall passe, for he is not de­ceived because lesse passes then he intended.

Bredimans case. 4. Jacobi. Com. Banco. fol. 56.

A Man deviseth a rent for life out of a Mannor, and he deviseth the Mannor for yeares, the ter­mor enters, and pays the rent, after the Terme, the devisee brings an assize against the Terretenant. Resol. Payment by lessee for yeares of the rent gi­veth no seisin to have an assize. 1. In respect of the imbecillity of his estate. 2. He cannot give seisin because he had not seisin, and therefore a Pracipe lyeth not against him because he cannot render sei­sin; but he may take seisin to the use of him in the freehold: A disseisor may give seisin of a rent secke, because he hath a freehold, and it is lawfull. 3. A [Page 263] rent secke is caecus & siccus, therefore it behoveth the first payment (which giveth life unto it) shall be made by a Tenant of the freehold, and in this case being created by devise an Annuity lyeth not there­upon, otherwise if it be by grant: and Tenant of the freehold ought to attorne to a grant of such a rent over, therefore he shall give seisin: But seisin by a Bailiffe is good, if seisin were had before within sixty yeares, and seisin given by Tenant at will is good, but it ought to be pleaded as payment by the lessor himselfe. If the King hath rent out of a ville to be paid by all the Inhabitants, seisin alledged in gene­rall without naming any is good.

Gatewards case. 4. Jac. in Com. Banco. fol. 59.

TO claime common ratione Commorantiae & residen. in villa de B. is not good; for no man may have interest [...]ommon in respect of a Messuage, where­in he hath no interest; For custome should alwayes extend to that which hath certenty and continuance, and without question tenant in fee simple ought to prescribe in his owne name, and tenant for life or yeares, by elegit at will, &c. in the name of him that hath the Fee, and he that hath no interest cannot have any common, and none that hath any interest, although it be but at will, and ought to have com­mon, but by good pleading he may enjoy the same.

No improvement might be made in any wasts, if this custome (viz.) in respect of habitation and Comorance) should be allowed, for tenants for life or yeares at will, by elegit, by Statute, &c. of the houses of the Lord, should have common in the wasts of the Lord, if this prescription were allowed, which were inconvenient: A Custome that every Inhabitant in B. shall have a way over such grounds, either to [Page 264] the Church, or Markett, &c. is a good custome, for that is onely easement, and no profit, and a way or passage may well sequi personam; The Lord cannot claime common in his owne soyle.

A diversitie was taken and agreed upon between a prescription and a custome, a prescription is alwayes alledged in the person, and a custome ought alwayes to be alledged in the Land, for every prescription ought to have by common intendment a lawful com­mencement, but otherwise of a custome, for that ought to be reasonable, and ex certa causa rationabili usitata, as Littleton saith; But it needeth not to have intendment of a lawfull commencement, as custome to have Land Devisable, or of the nature of Gavel­kinde, or Borough English. These and such like cu­stomes are reasonable, but by common intendment, these cannot have lawfull commencement, by grant, or act, or agreement, but onely by Parliament; and the custome in the case at barre was repugnant, for it was alledged that the Custome of the Towne was, that every Inhabitant had used to have common within a place in the Towne of H. which was another Towne.

Catesbyes Case. 4^o. Jac. fol. 61.

SIx moneths being halfe a yeare (semestre) is gi­ven to the Patron of an advowson to present, and according to the Kalander and not after 28. dayes to a Moneth; and the Statute saith, Si tempus semestre non transierit adjudicentur damna ad valorem, &c. per dimi­dium anni; and being ambiguous, it shall be construed for the benefit of the Patron.

Sir Moyle Finches case. 4. Jac. Com. Banco. fol. 63.

THe Lady M. tenant for life of the Mannor of B. the remainder in fee to the Lady Finch, shee and S. her husband and D. levyed a fine to one of the de­mesnes, who grants and renders to D. for 50. yeares, the reversion to S. and his wife and her heires, with proviso in the Deedes which directed the fine that the reversioner shall enter and hould Courts; And it was averred that this was knowne by the name of the Mannor of B. D. maketh his sonne of three yeares of age executor, and administration was committed to R. T. S. and his wife levy a fine of all the lands of the wife in K. except the Mannor of B. to the use of the feme for life, the remainder to Sir M. F. R. T. demiseth to P. L. for ten yeares, Dame M. dyeth, P. L. entreth, by vertue of a power of revocation and limitation of new uses, S. with the assent of the Lady F. his wife limitteth the uses to one who oust­eth P. L. and maketh a feoffment to the use of the La: F. for life, the remainder to H. F. in taile, P. L. reenters, Dame F. dyeth, H. F. for rent arreare di­straineth.

1. Resol. By the grant and render of the demesnes the Mannor is destroyed, because in an instant the services and demesnes are severed by act of the par­ty; but otherwise it is, if by act in Law, as upon par­tition; so it is of an advowson appendant, &c. and upon partition many Mannors may be made of one, but not by the act of the party. 2. B. is excepted by the name of a Mannor. 1. Because the intent of the parties is so. 2. Exception of misnosmer shall not be favoured in Law. 3. It is sufficient in Law in many cases, that a thing be reputed as it is named, as if a remainder be limitted to a Bastard by the [Page 266] name of sonne of J. S. and as to that was objected, that this reputation is not time out of minde, this needs not, if it be of convenient time as this was, for it was a Mannor revera before to levy a fine, and continue the name after, so that this reputation is stronger having such a ground, and reputation ser­veth in Writts amicable, although not in adversarie.

3. The lease made by the administrator durante minori aetate, is good, because the administration is generall, and not speciall to the benefit of the In­fant, but howsoever this is good during the admini­stration.

4. P L. in the life of the Lady M. had but inte­resse Termini, so that attornement cannot be in his life, but after the death of the La. Mo. by entry of the lessee the reversion is in S. and his wife without attornement, because attornement needs not, be­cause the reversion is setled, and he hath no meanes to compell, &c. otherwise it is where an attornement may be had: and although that P.L. lessee of a lessee of part cannot make an expresse attornement, yet his reentry shall be an attornement in Law, so he who hath interesse termini, may make a surrender in Law, but no expresse surrender, and a man of non-sane memory may make an attornement in Law, but not an expresse attornement.

The Lord Darcies Case. 4. Jacobi Com. Banco. fol. 70.

TEnder is not necessary to have the single value of the heire male or female; but the heire female shall not forfeit the double value, because the Statute of Merton is si se mavitaverit at the age of 14. yeares, &c. at which time the heire female is out of Ward: and where by the Statute of Westm. 1. cap. 22. it is provided that the Lord shal have two yeares to make [Page 267] a Tender, it giveth not the double value, but if he waive the two yeares, he shall have the value with­out Tender; quia de mero Jure, &c.

Burrells case. 5. Jac. Com. Banco. fol. 72.

IF the father make a lease by fraud and dyes, the sonne sells the land knowing or not knowing of it, the vendee shall avoyd it. 2. If the father makes a lease to the sonne, who assigneth it over by fraud, the father dyes, the sonne sells the land, the vendee shall avoyd it.

Sir Drue Druries case. 5. Jac. Cur. Wardor. fol. 73.

E. 1. granted to the Towne of Y. Quod omnes de villa oriundi licet terras, &c. extra libertatem villae, &c. te nuerint in Capite, se maritare possint juxta libertates villae praedictae: R. D. dyed seised of a house parcell of a Monasterie, dissolved in the time of H. 8. houlden in Capite, the King grants the wardship of his sonne to the plaintiffe, and makes the Ward Knight, the plain­tiffe brings a valore Maritagij.

The Charter doth not discharge the defendant; 1. Because it is juxta libertates villae praedict'. and the liberties are not shewed. 2. This Charter cannot ex­tend to a Tenure created in the time of H. 8. 3. It is not shewed that the defendant was borne within the Towne.

1. Resol. If the heire in Ward be made a Knight he is out of Ward for his body, because by intend­ment he is able to doe Knights service, otherwise if made a Nobleman.

2. By the death of the tenant the value of the marriage is vested in the Lord, and cannot be deve­sted by Knighthood, &c.

[Page 268]3. If he be Knighted in the life of his auncestor, he shall not be in Ward at all.

4. If making of the heire in ward Knight shall de­vest the value, it will be prejudiciall to the Subject, and to the King, for none will buy their Wardships.

5. After Tender and refusall if the heire be made Knight, and marry, he shall not forfeite the double value, because he is out of Ward, but immediatly the Lord shall have a Writte de valore maritagij.

This was the last Case that Sir John Popham chiefe Justice of England, &c. ever Argued.

Sir George Cursons case. 7. Jac. Cur. Wardor. fol. 75.

SIr W. L. seised of a reversion expectant upon taile (made to his sonne) of land in Capite, Covenants to stand seised to the use of his neece, the sonne dy­eth, the King shall not have primier seisin.

1. Resol. It was Collusion apparent within the Statute of Marlebr. cap. 6. to infeoffe the heire appa­rent; and if he infeoffe others upon Collusion aver­rable; but no averrement shall be where the re­mainder or reversion is left in a stranger, or upon a Devise.

2. Or otherwise to dispose in the Statute of 32. H. 8. have relation to wills onely, for before the Statute every man might dispose of his lands by act executed.

3. The Clause in the said Statute which saveth pri­mier seisin to the King, hath relation onely to acts executed, for the King shall have without that pri­mier seisin of the third part not devised, but without that he shall not have it of any part conveyed by act executed.

4. If the grandfather convey land to the sonne living the father, this is out of the Statute, otherwise [Page 269] if the father be dead: and so a gift to a Collaterall Kinsman, who is not heire apparent, is out of the Statute, for none will (by intendment) disinherit his heire to defeate the King of the Wardship, or primer seisin, and so is the experience of the Court of Wards.

Bullens case. 5. Jacobi Com. Banco. fol. 77.

THe Lord may have a certeine summe pro certo le­tae, for it shall be intended it was granted at the first by purchase of the Leete for the ease of the Te­nants, and in consideration of the Lords claiming of it at his owne costs every Eyre: The issue was if the plaintiffe was a chiefe pledge, and by speciall verdict he was found a Resiant, and certified by the chiefe pledges to be a chiefe pledge, and was amerced for his default. It seemeth he was not, Sed materia prae­dicta consopita fuit in arbitrio. See 30. E. 3.23. of franke pledges.

Lord Abergavenies case. Com. Banco. fol. 78.

A Judgement in an action of Debt is had against a joyntenant for life, who afterwards releaseth to his companion all the right, &c. yet that moytie is liable to the Judgement, and so it is of a rent charge during the life of the Releasor.

Sir Edward Phyttons case. Com. Banco. fol. 79.

EXecutors may take benefit of the Kings generall pardon, by which is enacted that all Subjects of the King, their heires, Successors, Executors and Ad­ministrators, shall be acquitted and discharged of all offences, contempts, &c. and that shall be expound­ed [Page 270] most beneficially for the Subject. And further doth give and grant all goods, Chattells, Debts, &c. forfeited; And prohibiteth any Clerke to make out any Writte, &c. Provided that every Clerke may make forth cap. ut. at the suite of the plaintiffe against persons outlawed, to the intent to compell them to answer; and that the partie shall sue forth a scir. fac. before the pardon in that behalfe shall be allowed; which is as much to say, having regard onely to the plaintiffe; But in regard of the King, it is an abso­lute pardon, and grant of his goods, and he is a per­son inabled against the King but not against the par­tie plaintiffe. And every person by himselfe, or his Atturney, may plead this act for discharge: Execu­tors shall have restitution upon the Statute 21. H. 8. Also Administrators shall have a Writt of error upon the Statute 27. El as was adjudged in the Lord Mor­dants case, 36. El. And yet these Statutes speake one­ly of the partie, and not of the Executors or Admi­nistrators, & because no Writt can be against Execu­tors, they may plead it without Processe.

Calvins case. 6. Jacobi Banco Regis. fol. 1.

R. C. By his gardian bringeth an assize, the defendants say, the plaintiffe ought not to be answered Quia est alienigena natus 5^o. Novembris Anno Domini Regis Angliae, &c. tertio apud. E. infra. regnum Scotiae ac infra ligeanciam Domini Regis Regni sui S. ac extra ligeanciam Regni sui Angl. &c. the plaintiffe de­murreth.

The Case was Adjourned into the Exchequer Chamber, and was argued by two Justices every day, and by the Chancellour, and resolved by the Chan­cellour, and all the Justices (except Walmesley and Foster) that the plaintiffe ought to be answered.

For these six demonstrative Conclusions drawne from the Law of Nature, the Law of the Land, Rea­sons of State, and Authorities of Records and Booke Cases.

1 Every one that is an Alien by birth, may be, or might have been an Enemy by accident, but C. could never be an Enemy by any accident whatsoe­ver; ergo, no Alien by birth.

2. Whosoever are borne under one naturall lige­ance, due by the Law [...] nature to one Soveraigne, [Page 272] are naturall borne Subjects; But C. was borne under one, &c. ergo, a naturall borne Subject.

3. Whosoever is borne within the Kings protecti­on, is no Alien; But C. was borne under, &c, ergo, he is no Alien.

4. Every stranger borne, must at his birth be ei­ther amicus or inimicus; but C. at his birth could nei­ther be amicus, nor inimicus, because he was subditus, ergo, no stranger borne.

5. Whatsoever is due by the Law of man, may be altered, but naturall legeance of the Subject to the Soveraigne cannot be altered; ergo, not due by mans Law.

Lastly, whosoever at his birth cannot be an alien to the King of E. cannot be an alien to any of his Subjects of E. but C. at his birth could be no alien to the King of E. Ergo, he cannot be an alien to any of the Subjects of E. the Maior and Minor both be Propositiones perspicuè verae, and although Alienigena di­citur ab aliena gente: yet that is all one, as Alienae li­geantiae, and arguments drawne from Etymologie are feeble, for Saepenemero ubi proprietas verborum attenditur sensus veritatis amittitur, yet when they agree with Law, Judges may use them for Ornament, and d [...]verse inconveniences would follow, if the Plea against the Plaintiffe should be allowed: For first, it maketh le­geance locall, wereupon should follow, first that le­geance which is universall, should be confined within locall limits. 2. That the Subject should not be bound to serve the King in Peace or in Warre out of those bounds. 3. It should illegitimate many, which were borne in Gascayne, Guyan, Normandy, &c. and diverse others of his Majesties Dominions whilst the same were in actuall obedience. And lastly, this strange and new devised Plea inclineth too much to countenance that dangerous and desperate error of [Page 273] the Spencers. (viz.) That Homage and Oath of le­geance, was more by reason of the Kings Crowne, (that is, of his politique capacity) then by reason of the person of the King, which was condemned by two Parliaments, one in the Reigne of E. 2. called, Exilium Hugonis le Spencer, and the other in 1. E. 3. cap. 1. No one Opinion in all our Bookes is against this judgement: The Lord Chancellour and 12. of the Judges, concurred in one opinion herein, and not in any remembrance so Honourable, and Intelli­gent an Auditory as was at this Case.

Bulwers Case, 27. Eliz. fol. 1.

H. H. recovered against the Plaintiffe in the com­mon place, and dyeth the Defendant in the name of H. Outlawed the Plaintiffe who brings an Action of the Case in N. where the first Action was brought, and recovered, for there was the visible tor­te; when matter in one C [...]unty dependeth upon matter in another County, the Plaintiffe may choose in which County to bring his Action (except that the Defendant upon generall issue pleaded, may be prejudiced of his Triall,) as if two conspire in one County, to Endite one in another County and doe it, an Action may be brought in either, but if he be in­dited, but not by them, there it shall be brought where the conspiracy was. If Manasse be made in E. whereby my Tenants recede into L. an Action shall be brought in E. if an action be founded upon two things, materiall and traversable in two severall Counties an action may be brought in any of them. An Annuity granted in one County to be paid in a­nother, the Action shall be brought where the grant was, he who is robbed may have an appeale of felo­ny, in every County where the goods came, but of [Page 274] robbery where the fact was done onely: A lease for yeares in one County of Land, in another, Debt shall be brought, where the Lease was made, and wast where the Land lyeth, every Action which concer­neth the life of a man shall be brought where the offence is committed: Every issue which ariseth up­on an Action in which Land shall be recovered, shall be brought where the Land lyeth, as in right of ward of Land or body, or intrusion of ward, and forfeiture of Marriage, & Valore maritagij, and Quare impedit, but ravishment of ward, where the ravishment was, and a Quare non admisit where the refusall was, before the Statute of 7. R. 2. c. 10. an Action for Land in di­verse Counties, or for common in one County ap­pendant to Land in another County, shall be brought by severall Writs in both Counties, but now, In con­finio comitatuum: a per quae servitia shall be brought where the note of the fine is levyed.

Sir Miles Corbets case. 27. Eliz. in Scaccario. fol. 5.

REsol: That the speciall manner of Common in Norf: called Shacke, to be taken in arrable land af­ter harvest untill sowing begin is good. Resol. also if in D. there are fifty acres, and in S. 100.l. who ought to intercommon for vicinage, D. cannot put in more in their Common then it will depasture, and so to escape reciprocally, for the originall cause of this Common was onely to prevent suits in Champian Countries.

Sendills case. 27. Eliz. in Com. Banco. fol. 6.

A Robbery for which the Hundred must answer by force of the said Statute, is to be done o­penly, so as the Country may take notice thereof themselves; but a Robbery done secretly in the house, the Country cannot take notice thereof, for every one may keepe his house as strong as he will at his perill; For it was adjudged in Ashpoles case, that the partie robbed, needed not to give notice thereof to the Country; For it may be that the partie rob­bed was bound or maimed, &c. so as he could not make hue and cry to give notice. A robbery was done in January presently after the Sunne setting during day-light; and it was adjudged, that the Hundred should answer for the same; for it was a con­venient time for men to travell, or to be about their businesse. One was killed in the Evening and esca­ped, and by the common Law the Towne was amer­ced, for that was accounted in Law parcell of the day, and not of the night But by the Statute 27. El. ca. 13. none shall have action upon the said Statute, except the partie robbed so soone as he may give no­tice of the same to any of the Inhabitants of any Village, Towne, or Hamlet, next to the place where the robbery was done, and if they in pursuite appre­hend any of the offenders, that will excuse the Towne.

Mibornes case. 29. Eliz. in Com. Banco. fol. 6.

A Robbery was done in the morning ante lucem, the Hundred shall not be charged, Cum quis felo­nicè occisus fuit per diem, nisi felocaptus fuit tota villata illa amercietur.

The Earle of Bedfords Case. 29. Eliz. fol. 7.

1. REsol. If tenant in taile make a voydable lease for yeares, and dyeth, his heire in ward to the King, or other Lord, the Lord shall avoyde this lease; but if an infant make a feoffment, the Lord by Es­cheate shall not avoyde it, but a gardian shall, be­cause he doth it in right of the infant.

2. This avoidance is but during the interest of the Lord, for afterwards the heire may make it good: But if he who hath a particular estate avoideth an act in all, after his Interest determined it shall not be made good: as if a feme be indowed of an appropria­tion, and her clerke inducted, the appropriation is defeated for ever; so if a feme Covert (as a feme sole) levy a fine, and the Baron enters, and dyeth, the Con [...]see shall not have the land, for the estate is wholly defeated.

Ʋghtreds Case. 33. Eliz. fol. 9.

THe M. of W. granted the Captainship of a Fort to the plaintiffe, and for exercising of the said of­fice, and for finding a Master Gunner, and six Souldi­ers, granted to him an Annuity of 32. li. per annum, the plaintiffe brings an Annuity.

1. Except. It doth not appeare by the Count that the M. had power to grant this office, Non alloca­tur.

[Page 277]2. The plaintiffe doth not averre the exercising of the said office; Non allocatur; for if he had not used it, that shall come in on the other part, because this is a condition subsequent, and not precedent; but if one be to have a thing in consideration of an act to be done by him, there he must shew the performance, because that amounts to a condition precedent, as in debt for salarie, but if each party had equall remedy, one for the money, and the other for the act to be done, there the Count shall be without shewing the performance, as if one Covenant to serve, &c. and the other Covenants to give money, &c. But although that an interest vested is to be devested by non fea­sance, if it appeare to the Court that an action is not maintainable without the doing of it, there the do­ing of it must be averred; as if an Abbot sole grants an annuity to J. S. Pro Consilio, &c. in action brought against the successor, he must averre that he had gi­ven Counsell, &c. to the use of the House, otherwise if against the grantor.

Englefields case. 34. Eliz. in Scaccario. fol. 11.

SIr F. E. covenanted to stand seised to the use of himselfe for life, the remainder to his Nephew, Proviso that it shall be voyde upon tender of a Ring by him, after he was attainted of Treason, and all his inheritances forfeited by Statute; the Queene leaseth to the defendant for forty yeares, by Statute it was inacted that every one who had a patent of land of a person attainted, shall exhibit it into the Exchequer within two yeares to be Inrolled, one authorized by Letters patents in the name of the Queene tenders the Ring in the life of Sir Fr. the Queene bringeth Intrusion.

1. Resol. When the Q. tenant pur auter vie leaseth [Page 278] for yeares, this is good without recitall of her estate, for it is lesse then her estate, as if she grant Totum sta­tum suum, for there is no torte, and she is not de­ceived.

2. That this condition is given to the Q. but ob­ject. 1. That it was inseparable from Sir Fr. for his in­tent was the substance of it, and his intent cannot be transferred over. 2. Naturall affection is made the Judge whether the Nephew deserve that the use shall be revoked, and in so much that naturall affection cannot be transferred, no more can this condition which was created by naturall affection, and naturall affection determineth the estate. 3. Although the benefit of this collaterall condition be given to the Q. the performance is not: As to the first and se­cond; It was answered, that the condition is onely the substance, and all the residue is but a flourish, and that is not an inseparable condition, for any one may tender a Ring as well as he.

As to the third; The performance is given to the Q. as incident to the Condition.

4. It was objected, that the estate of Sir Fr. was not subject to the condition, because he was not pos­sessed by limitation of use, and by 27. H. 8. but he was seised of his auncient inheritance, ergo, the lease shall not be avoyded in the life of Sir Fr. It was an­swered, that Sir Fr. was seised by limitation of use, and that the lease shall be avoyded.

5. It was objected, that the Q. having made this lease, being seised pur auter vie, by her owne act she shall not defeate it after: It was answered, that the Q. shall avoyde it, for her grant shall not inure to two intents; 1. to make the lease, &c. 2. to suspend the condition, and when the Q had two rights, she shall not loose both without speciall words.

6. It was objected, that this tender ought to be [Page 279] found by office, because matter in paijs, and if it be false the party hath no remedy, because the certificat is not traversable: It was answered that Certificats which informe the Q. of her title are traversable, but Certificats which are in nature of Trialls are not: also by the Tender the uses are determined, and by the attainder, and the act of 33. H. 8. the land is ve­sted in the Q.

7. It was objected, that the conveyance was voyd, because it was not inrolled within two yeares, as the Statute requires, and so Sir Fr. was seised in fee, and the lease unavoydable It was answered that it was tendred in the Exchequer to be inrolled within two yeares, which is all the Statute requireth; the forfei­ture was established by a speciall act, 35. Eliz.

The Case of Swannes, 34. Eliz. fol. 15.

A Game of Swannes in a common River are seised into the Queenes hands upon office found, I. Y. pleads that Abbas, &c. gavisi fuerunt totoproficuo omnium cignorum in aestuaria praedict. indificantium, and makes her selfe title to them, & prayeth an ouster Le manie: All White Swannes in a common River who have gained their naturall liberty, may be seised for the King, because they are Volatilia regalia, but a Subject may have them in his owne River, and if they escape into a common River, he may take them againe, upon fresh persuite, Cignets shall be divided betweene the owners, of the Swannes equally, but upon the Thames the owner of the Land shall have the third by the custome: whosoever hath a Swan-marke must have it by grant of the King, or prescription, and he may grant it over, and he ought to have freehold of five Marks per annum, by the Statute of 22. E. 4. c. 6. A man may prescribe to have Wyld Swannes, but not [Page 280] as here, but that the Abbot, &c. have used to take of them to their owne use, and therefore adjudged a­gainst I. Y. A Swanne may be an estray, and so can­not any other fowle.

Sir Thomas Cecils Case, 40. Eliz. in Scaccario. fol. 18.

SIr T. C. entered into an obligation to the Queene to performe Covenants, and shewed in the Ex­chequer-Chamber matter of equity to discharge him of the said Debt, according to the Statute of 33. H. 8. c. 39.

1. Resol. that Branch of the Statute which giveth liberty to the Subject to plead matter in equity in barre of Debt due unto the King, extendeth to Debts due at the common Law, as well as by this Statute, because this Statute gives more speedy remedy for them, and so within the purview thereof, and so the other proviso of equall charging of Lands Subject to Deb. ts of the King is generall.

2. The Court of Exchequer-Chamber in this case may decree upon English bill, although that Processe be in the Exchequer at the common Law, because to that purpose they are as one Court.

3. An obligation to performe Covenants after Breach of them is within the Statute.

The Lord Andersons Case, 41. Eliz. in Scaccar. fo. 21.

TEnant in taile is bound by recognizance to I. S. who is attainted, Tenant in taile dyes, his issue aliens Bona fide, the King shall not extend these Lands by the Statute. 33. H. 8. c. 39.

1. Before that Statu [...]e the King could not extend Lands in the hands of the issue in taile for the Debt [Page 281] of his auncestor, because he was bound by W. 2. De Donis.

2. By that Statute Lands are extendable in the hands of the issue in taile, for Debt due to the King by judgement, recognizance, obligation, or other specialty, and other cases are out of the Statute.

3. The Alienee Bona fide, is not within the Statute, because favoured as a purchasor, and he is a stranger to the Debt, and comes in upon good consideration, and benefit is given against the issue in taile, which was not before.

4. Debts due to a Subject, and forfeited to the King, are not within the Statute, for they are not due originally to the King by any of the said foure wayes mentioned in the Act.

Butts Case, 42. Eliz. in com. banco. fo. 23.

A. Seised of black acre in fee, and of white acre for yeares, grants a rent charge to B. for life with distresse in both, B. distreines, and avowes in white a­cre, and good.

1. Resol. white acre is charged during the terme and life of B.

2. All the rent issueth out of black acre, for as an estate of freehold it cannot issue out of white acre, nor as freehold out of black acre, and a chattell out of white acre, because intire, it cannot be construed to be two rents contrary to the intent of the parties, and therefore an acceptance of a Lease of white acre doth not suspend it, and in an assize, black acre one­ly shall be put in view.

3. Although the rent issueth onely out of black acre, yet white acre is charged with a distresse. If a rent be granted out of three acres with clause of distresse in one, this is a rent seck for all, yet the gran­tee [Page 282] shall distreine in the third acre for it, so if a rent be granted to two with clause of distresse to one of them, but a rent may be seck, and charge at severall times, and therefore if a rent be granted in fee with distresse for life, it is a rent charge for life, and seck after, but if the Clause of distresse be for yeares, it is a rent seck for all, because the freehold is seck.

The avowry was insufficient. 1. Because he said the rent issued out of white acre, where it issued out of black acre, and although the Plaintiffe had disclo­sed the truth in his plea in barre, this doth not salve the matter in substance vitious in the avowry. 2. He deriveth the rent but of white acre, Virtute cujus, he was seised for life, which is repugnant to have a free­hold out of a Chattell, and so judgement given a­gainst him for insufficient pleading.

Halls Case, 31. Eliz. fo. 25.

A Quare impedit against the Bishop, and incumbent, without naming the Patron, the writ shall abate. 1. It is not reason the Patron shall loose his Patron­age, without being named, in case where he may be named, as here. 2. The incumbent at the common Law could not pleade to the Patronage, and there­fore it is no reason that he who cannot pleade be na­med, and he who can, omitted, but now the incum­bent may pleade to the patronage by the Statute of 25. E. 3. cap. 7. which inableth the possessor to coun­terpleade the title of the King, and by equity against a common person, in the one case after induction, in the other after institution: But in case where the Patronage shall not be recovered, or that the Patron [Page 283] cannot be named, as in the Kings Case, a Quare impe­dit shall be against the incumbent sole, or against him and the ordinary, so if a Bishop disturbe and die, it shall be against the incumbent sole, if a Patron be named and die, if the writ shall not abate he shall be out of possession, and if it shall abate, the torte shall not be punished, but if the Patron be put out of pos­session, he hath remedy by writ of right, and if it shall abate, the Plaintiffe is without remedy, therefore the writ shall stand.

Sir Hugh Portmans Case, 40. Eliz. fol. 27.

IF the Plaintiffe in a Quare impedit, after appearance be non-suite, or discontinue or be made a Knight, pending the writ, this is peremptory, because it is his owne act, otherwise if the writ abate for default of forme, or by misnosmer, for this may be the default of the Clerke.

Baskervills Case, 27. Eliz. fo. 28.

TItle devolveth to the King to present by lapse, the Patron presents one who dyeth, the King hath lost the presentation, for he having the first presenta­tion, he shall not have the second: otherwise the King may suffer Strangers to present one after ano­ther, and take his turne when he pleaseth, and by that meanes the Patron shall be in a manner disinhe­rited; and the Statute of Praerogativa Regis, nullum tempus occurit Regi, is to be intended when the King hath a permanent Title, and not transitory, when time is the substance of his Title.

Maunds Case, 43. Eliz. fo. 28.

IN case of a reentry for non-payment of rent, or when any summe, Nomine penae, is to be forfeite, in both the cases demand ought to be made precisely on the day, a convenient time before the setting of the Sunne, in the one case in respect of a condition, and in the other in respect of the penalty; but in case of a distresse, he that hath the rent may demand the same at what time pleaseth him, for no Losse or penalty insueth thereupon, but onely a remedy to come by his rent, and if demand be made any time after the day, and before the distresse, it sufficeth.

Myghts Case, 7. Jacobi. fol. 163.

1. REsolved, if J. M. purchase Lands to him, and an Infant in fee, it cannot be averred that this was to take away the wardship, because he never was sole Tenant to the King.

2. No feoffement that I. M. can make of his moi­ty, can be aver'd to be by collusion, &c. because with­out feoffement no wardship shall be, and also the Statute speakes of sole seisin.

3. A feoffement to the wife or younger Child can­not be averred to be by covin, &c. upon constructi­on of the Statute of 32. & 34. H. 8. where collusi­on cannot be averred by the Statute of Marlebridge, it cannot be now to seize all the Land, but it may be for the third part which belongs to the King: If a third part be left to the King, no averrement of [Page 327] covin may be for the other two parts, the Father makes a feoffement to diverse uses, the remainder to his second Sonne and dyeth, his Eldest Sonne dyes, the second Sonne shall not be in ward by aver­ment of covin.

Digbies Case, 7. Jacobi. fo. 165.

TEnant of the King conveys his Lands to the use of himselfe for life, the remainder to his Sonne and Heire in taile, and after is attainted of Treason, the King shall have no wardship of any part of the Land by 32. & 34. H. 8. because there is no Heire, and livery must be sued in the name of the Heire, but the King shall have wardship in such a case before 26. H. 8. because there was an Heire.

The Earle of Cumberlands Case, 7. Jacobi. fol. 166.

E. 2. granted the Castle and Mannor of S. in taile to R. C. H. 6. granted the reversion to T. C. if the taile be good, if not, he grants it in possession, this is good one way or other, and so are many Pa­tents from time to time.

Paris Stoughters Case, 7. Jacobi. fol. 168.

BY Mandamus it was found that P. S. dyed seised 40. El. and held of the Queen in common socage, 7. Jacobi. a Melius inquirendum was awarded, whither he held of the King by common socage, or in chival­ry, and it is found that he held of the Queene by chivalry. This Writ of Melius, &c. is repugnant, and giveth no authority to find this office, because a Tenure cannot be of the King, in the time of Queene Elizabeth, and therefore a new Writ shall be award­ed, [Page 328] but if the first Melius be good, no other shall issue. 1. For avoiding Infinitnesse. 2. A Diem clausit, &c. shall not issue upon a Diem, &c. Nor Mandamus upon a Mandamus, so a Melius, &c. shall not issue upon a Melius. 3. If an Office be found a­gainst a Subject, he shall have a traverse, and if upon that it be found against him, he hath no remedie: So the King shall have but one office, and a Melius, and no more, although that a Tenure be found of two Subjects, or one hath an Ouster le maine, the King shall not reseise without a Scire facias.

Toursons Case, 8. Jacobi. fol. 170.

IF Tenant of the King commit Fellony Ao 1. Jaco. and after is attainted Ao 3. for the same, and af­ter in Ao 4. all is found by office. Now this office shall have relation to the time of the Fellony, to a­void all meane alienations and incumbrencies, but for the meane profits it shall have relation to the time of the Attendor for their the Kings Title ap­peared of Record, and the like Law is of an Ideot. But in case of a ward within age, the King shall have the meane profits from the death of the Auncestor, because he hath it by reason of his Seigniory, and he looseth the rent and services in the meane time; the difference is, when the King seiseth jure protectio­nis regae, or Nomine destrictionis, and when Ratione Pri­oris recti seu tituli.

Sir Gerrard Fleetewoods Case, 8. Jacobi. fol. 171.

SIr William Fleetewood receiver of the Revennues of the Court of Wards, in Anno. 35. Eliz. was pos­sessed of a Messuage and certaine Lands in Harrow in Com: Mid: for a tearme of yeares, in Anno. 36. Eliz. [Page 329] he became Receiver generall, and was bound in 20. Obligations of 200. l. a peece to make true account &c. And after upon severall accounts he became in­debted in great Summes of money to the Queene, and being so indebted in consideration of 1100. l. did bargaine and sell the said Lease to James Pember­ton, which by meane conveyance came to Sir Gertard Fleetwood. Question, Whither this Lease, &c. was extendable and lyable to the Kings Debt, &c. and it was resolved, that the said sale of the tearme was good against the King, because the tearme was but a Chattell, and the sale of Chattells after judgement, Bona fide, is good, but not after Execution awarded.

And Cooke Chiefe Justice, said, that a Receiver or other accomptant which is indebted, shall not be in worse case then a Fellon or a Traytor, that may after Fellony or Treason, and before conviction, sell, Bona fide, for his sustenance, &c. his Chattells, eyther reall or personall.

Hales Case, 8. Jacobi. fol. 172.

THe Heire Ward comes to full age, and tenders his livery, and bargaines and sells, and dyes, the interest of the King is determined, and the Bar­gainee shall not answer for the meane profits, for the Heire had done all that he could doe, and no default in him, otherwise if he had not tendered it.

Sir Henry Constables Case, 8. Jacobi. fol. 173.

THe Sonne of the Tenant of the King is made a Knight in the life of his Father, the Father dyes, the Sonne within age tenders his livery, by that, the meane profits are saved, and the King shall not have the rates within age.

Virgill Parkers Case, 8. Jacobi. fol. 173.

VIrgill Parker seised of the Mannor of Fushell in fee, houlden of the King in Chivalry of his Dutchie of Lancaster, maketh a feoffement of the one halfe to the use of himselfe for life, and after to the use of Mary Coney (whom he intended to Marry) for her life for her joynture, and after he Married her, and then Leased the other halfe to I. C. for yeares, for payment of his Debts and Legacies, and dyed, his Heire within age. Question, whither the King should have the third part out of the Mannor so Leased onely, or out of the whole; and it was resolved, that it shall be out of the whole Mannor, although the e­state of the Wife was precedent, that is, equally out of both parts.