I. Borneford and Packingtons Case. Hill. 25. Eliz. in the Kings Bench.

IN Trespas, It was found by special verdict,Custom of Free-Bench. That the De­fendant was seised of the Manor of B. whereof the place where is parcel, demised and demiseable by Copy, &c. And that B. the Granfather of the Plaintiff was seised of the place where, &c. according to the custom of the said Manor, in Fee-simple, and that within the said Manor there is this Custom, That if any Copy-holder dieth seised, his Wife over-living him shall hold all the Land during her Widowhood as Free-bench, and shall be admitted Tenant to the Lord,2 Brownl 21. and that the Heir shall not be admitted to it during the life of his Mother: And found also another Custom within the said Manor, That if any Copy-holder be convicted of Felony, and the same be presented by the Homage, that then the Lord might seize, &c. And it was further found, that the Grandfather of the Plaintiff took a Wife, and died seised, having issue A. Father of the Plaintiff. The Wife is admitted to her Free-bench, A. is convicted of Felony, and that is presented by the Homage; and afterwards A. died, after which the Wife died, &c. It was argued by Atkinson, that A. is not within the danger of this Custom, for during the life of his Mother, who by a Claimer is Tenant to the Lord, and admitted to it, she is Copy-holder; and it is not like to the Case lately adjudged of possessio fratris, without ad­mittance, for there the party was admittable, and so he was not here: And also it appeareth by the Custom as it is found, That the Lord upon such matter shall seize, and therefore we ought to make con­struction that this Custom doth not extend to Cases where the Lord cannot seize; but in the Case at Bar, the Lord cannot seize by rea­son of this Free-bench; And we ought not by any construction to extend a Custom beyond the words in which it is conceived, but it shall be taken strictly, and not be supplyed by Equity with a Custom in the place of a Seisure. But notwithstanding all this, afterwards Iudg­ment was given against the Plaintiff.

II. Hill. 25 Eliz. in the Kings Bench.

A Copy-holder doth surrender to the use of one A. upon trust, that he shall hold the said Land until he hath levyed certain monies, and that afterwards he shall surrender to the use of B; the monies are levyed, A. is required to make surrender to the use of B. he refuseth, B. exhibits a Bill to the Lord of the Mannor against the said A. who up­on hearing of the Cause decrees against A. that he shall surrender; he refuseth, now the Lord may seize, and admit B. to the Copy-hold, for he in such Cases is Chancellor in his own Court, per totam Curiam.

III. Wade and Bemboes Case. Hill. 25. Eliz. in the Kings Bench.

IN a Writ of Error by Wade against Bembo upon a Iudgment given in the Court of the City of Bristol, the Case was, That Bembo was Plaintiff in the said Court against Wade in an Action of Covenant, and declared of a Covenant made by word by the Testator of Wade with Bembo; and declared also, that within the said City there is a Custom, That Conventio ore tenus facta, shall bind the Covenantor as strongly as if it were made by writing: And it was holden by the Court, that that Custom doth not warrant this Action, for the Covenant binds by the Custom the Covenantor, but doth not extend to his Executors, and a Custom shall be taken strictly, and therefore the Iudgment was reversed.

IV. The Lord Paget and Sir Walter Ashtons Case. 25 Pasch. 25. Eliz. in the Kings Bench,

THe Lord Paget brought an Action of Trespass against Sir Walter Ashton, who justified because he is seised of three Messuages to him and his Heirs, and that he and all those whose estate he hath, &c. have had the Woodwardship of the Forrest of C. within which, the place where, &c. and also have had within the said Forrest Estovers without number: And that one Rowland Bishop of Coventry and Lichfield was sei­sed of the Forrest aforesaid in the right of his Church, and by Inden­ture betwixt him and Sir Edw. Ashton his Ancestor, whose Heir he is, set­ting forth that divers debates had been betwixt the said parties con­cerning some profits within the said Forrest; It was agreed betwixt them, that the said Sir Ed. Ashton should release unto the said Rowland all his right in the said Office and Estovers, and that the said Rowland shoud grant de novo unto the said Edw. and his Heirs the said Office, and one hundred loads of Estovers per annum out of the said Forrest: After which the said Ed. according to the said agreement, did release to the said Bishop ut supra, after which the said Bishop by Indenture reciting the said former Convenants in compl. Indenturae praedict. Convent. did grant to the said Sir Ed. the said Office and Estovers pro easiamento dicti Edwardi, & haered. suorum by assignment of the Officers of the said Forrest; and if the assignment he not made within ten days after request, that then the said Ed. and his Heirs should cut dow wood where they pleased; and averred, the things released were of as great value as the things granted: And upon this matter the Plaintiff did demurr in Law, and it was adjuded for the Plaintiff, for here no Inheritance in the things granted passed to the said Sir Ed. but only an Interest for his own life;1. Inst. 148. a. 398. b. ib. Dy. 253. 1 Cro. 644. for the grant was to Sir Ed. only without the word, Heirs; and the reference to the Inden­tures, by which the Bishop hath covenanted to grant the Inheritance, nor the words in the grant imply an estate in Fee, s. pro easimento dict. Ed. [Page 3] & haered. suorum, and that in default of Assignment it should be lawful for Sir Ed. and his Heirs, shall not supply the defect of the words in the grant.

V. Gilbert and Sir George Harts Case. Mich. 25 and 26 Eliz. in the Kings Bench.

GIlbert brought Debt upon Escape against Sir George Hart Sheriff of Kent, and declared,Escape. 1. Cro. 188. 271. That he recovered a certain debt against A. who was taken in Execution, &c. And the Case was, That the said A. was taken in Execution in the time of the old Sheriff, and escaped also then: and afterwards the Defendant being Sheriff, the Plaintiff again sued a Scire facias against the said A. upon the Iudgment aforesaid, upon which Execution was awarded by default, and thereupon issued a Ca­pias ad satisfaciendum, by which A. was taken, and escaped: And by the o­pinion of all the Iustices, the Defendant in this Case shall be charged; for notwithstanding that A. was once in Execution, which was deter­mined by escape in the time of the old Sheriff, yet when Execution was now awarded against him upon his default in the Scire facias, the same shall bind the Sheriff out of whose custody he escaped.

VI. Moor and Farrands Case. Mich. 25 and 26 Eliz. in the Common Pleas.

MOore leased Lands to Farrand upon condition that he,1. Cro. 26. Condition where shall not bind Ad­ministrators. 1. Anders. 123. Dy. 6. 1 Cro. 26. 757 3. Len. 67. his Executors or Assigns should not alien without the leave of the lessor; Farrand died intestate, his Wife took Letters of Administration, and aliened without leave, and by Periam Iustice, she is not within the penalty of the Condition, for the Administrator is not meerly in by the party, but by the Ordinary: And by Meade and Periam, If a Lease for years upon such a Con­dition be extended upon a Recognisance, the same is not an alienation against the Condition: But if feme lessee for years upon such Condition taketh a Husband and dieth, the Husband is within the danger of the Condition, for he is Assignee: If the King grant to a Subject bona & ca­talla felonum, and the lessor for years upon such a Condition be out-lawed, upon which the Patentee enters, Now by Periam the Patentee is not bound by the Condition. Meade contrary, for the Condition shall go with the Land.

VII. Maynyes Case. Mich. 25 and 26 Eliz. in the Exechequer.

MAyney seised of Lands in Fee, took a Wife,Co. 1. Inst 41. [...]. made a Feoffment to a stranger, committeth Treason, and thereof is attainted, and hath a Charter of Pardon and dieth. It was moved by Plowden in the Exche­quer, if the Wife of Mayney shall have Dower against the Feoffee:Dower. Man­wood Chief Baron, by reason of this Attainder Dower cannot accrue to the Wife, for her title begins by the Enter-marriage, and ought to con­tinue and be consummated by the death of the Husband, which cannot be in this Case; for the Attainder of the Husband hath interrupted it, as in the Case of Elopement:Attainder where an Estoppel. And this Attainder is an universal Estop­pel, and doth not run in privity only betwixt the Wife and him to whom the Escheat belongs, but every stranger may bar her of her Dower by reason thereof; for by the Attainder of her Husband the Wife is disabled to demand Dower as well as to demand his Inheritance; and he cited the Resolution of all the Iustices of England in the Case of the Lady Gates, 4. Ma. Dyer. 140. and the Pardon doth not help the matter, for the same extends but to the [Page 4] life of the Offender, but doth not take away the Attainder by which she is barred to demand Dower during the said Attainder in force: See the Statute of 5. E 6. cap. 11. Vid. Fitz. Dower 82. 13. E 3. 8 E 3. Dower 106 Fitz. Utlag. 49.

8 Mich. 25, and 26 Eliz. in the Exchequer.

4. Len. 117. Leases for three lives of Copy-hold estate are not within Stat. 41. Eliz.IN the Exchequer it was found by special verdict, That the Guar­dians and Chanons Regular of Otlery, were seised of the Man­nor of O, &c. and that 22 H 7. at a Court holden there, granted the Lands in question to W. and W. his Son for their lives by Copy, ac­cording to the Custom of the said Mannor, and that afterwards 30 H 8. They leased the Lands by Indenture to H. rendering the anci­ent and accustomed Rent, and afterward surrendred their Colledge, &c. and afterward W. and W. dyed: And if that Lease so made during the customary estate for life, notwithstanding the Statute of 31 H 8. be good or not, was the Question, being within a year before the surren­der, &c. It was argued by Egerton Sollicitor, that the said Lease is void by the Statute; the words of which are (whereof or in the which any estate or interest for term of life, year, or years, at the time of the mak­ing of any such Lease, had his being or continuance, and was not then determined finished, or expired) and therefore we are to see, if that right or possession which W. had at the time of the making of the Lease were an interest, or an estate for life: And as to this word (estate) it is no­thing else than measure of time, for an estate in Fee-simple is as much as to say, an interest in the Lands for ever, and the like of other e­states, and therefore here W. and W. had at the time of the making of this Lease an estate for life in the thing demised: And although such customary Tenants are termed in Law Tenants at will, yet they are not simply so, nor meerly Tenants at will, but only Tenants at will, secundum Consuetudinem Manerii, Copy-holde [...] Interest. which Custom warrants his possession here for his life, and therefore it is a more certain estate than an estate at will, for the Copyholder may justifie against his Lord, so cannot a Tenant at will, whose estate is determined at the will and pleasure of his Lessor: And although this estate is but by Custom, and by no Con­veyance the estate is raised; it is as material, so as it be an estate: and this estate being supported by Custom is known in Law an estate and so accounted in Law; and the Law hath notably distinguished Copy-hold Tenancies by Custom, and Tenancies at will by the Com­mon Law; for a Copy-holder shall do Fealty, shall have aid of his Lord in an Action of Trespass, shall have and maintain an Action of Trespass against his Lord, his Wife shall be indowed, the Husband shall be Tenant by the Curtesie without new admittance: and it was adjudged in the Common Pleas, 8. Eliz. That if a Copy-holder sur­render to the use of another for years, the Lessee dieth, his Execu­tors shall have the residue of the Term without any admittance, M 14. and 15. Eliz. a Copy-holder made a Lease for years by Indenture war­ranted by the Custom, it was adjudged that the Lessees should maintain Ejectione firm. although it was objected, that if it were so, then if the Plaintiff doth recover,Post 16 2 Len. 119. he should have Habere facias possessionem; and then Copyholds should be ordered by the Laws of the Land, 10 Eliz. Lord and Copy-holder for life, the Lord grants a Rent-charge out of the Mannor, whereof the Copy-hold is parcel, the Copy-holder sur­renders to the use of A. who is admitted accordingly, he shall not hold it charged, but if the Copy-holder dieth so that his estate is determi­ned, and the Lord granteth to a stranger de novo to hold the said Lands by Copy, this new Tenant shall hold the Land charged: and so was it rated and adjudged in the Common Pleas. It was adjorned.

IX. The Lord Paget and the Bishop of Coventry and Leichfields Case. Mich. 25. & 26 Eliz. in the Kings Bench.

THE Bishop of Coventry and Leichfield was endicted of Trespass in the County of Srafford, Endictment. of breaking and entring of the Close of Thomas Lord Paget, called the Vineyard; Challenge. the Bishop traversed the En­dictment, and at the day of appearance of the Iury, the Bishop chal­lenged the Array, because that he being a Peer of Parliament, no Knight was returned, &c. Vpon which challenge the Queens Coun­sel did demur in Law, but at last, for expedition, &c. the Court deli­vered to the Councel of the Bishop, a Bill sealed to save him the ad­vantage of the said challenge: And the Enquest was taken, de bene esse, who found, that one A. by the Commandment of the Bishop en­tred into the said Close called the Vineyard, being then in the occupa­tion of one B. at will, of the said Lord Paget, and did the Trespass, viz. digged a Turff there, and there left it, and so departed. The matter of challenge was many times argued, and it was argued against the said challenge, because that the King is party, against whom no Lord of Parliament shall have such Prerogative. To which it was answered on the other side, that so much the rather the challenge lyeth in the Case, for where a Peer of the Parliament is to be tryed upon an Endictment of Treason or Felony, it shall be per pares; if upon appeal of Murder, or Felony by ordinary tryal, See 33. H. 8. Br. Tryal 42 and Br. Enquest, 49. It was said on the Plantiffs side, that here the Bishop is quodam modo, and the Venire facias issued at his own Sute, and therfore the mismaking of the Pannell is his own fault; But by Gau­dy Iustice, the Venire facias in this Case is reputed in Law, the Sute of the Queen, notwithstanding that the parry endicted for his expedi­tion, doth pay the Fees for the Process, for that the Clarks of the Court have encroached for their gain, for otherwise there should be none paid by the Queen; and by the better opinion of the Court, the challenge was holden good. Another matter was moved, because the Endictment is (clausum Domini Paget) and it appeareth by the Verdict, that the said close at the time of the Trespass was in the occupation of B. at the will of the Lord Paget: for the Lord Paget cannot have an Action of Trespass against the said Bishop, or the said A. upon the matter; and by Wray, the Lord Paget cannot have Trespass, Quare clau­sum fregit & intravit upon this matter; but for digging upon the Land, demised, or cutting of Trees, an Action lyeth, 19 H. 6. Tit. Trespass, 36. But here the Endictment is, that one F. entred by the command­ment of the Bishop, upon which matter no Action lyeth against the Bishop, by the Lord Paget, and especially in this case where the said A. did not carry away the said Turff from thence. But by Wray; notwith­standing that the Action of Trespass doth not lye for the Lessor, yet it is well enough by way of Endictment. Another exception was taken to the Endictment, because it is alleadged,2 Len. 183. that A. by Commandment of the Bishop entred, and did the Trespass, and no place is shewed where the commandment was, and for this cause the Bishop was discharged.

X. Stonley, and Bracebridges Case. Mich. 25 & 26 Eliz. in the Kings Bench.

IN Ejectione firmae, by Stonley against Bracebridge, the case was,P [...]o. Com. 417. 418. Thomas Bracebridge Father of the Defendant was seised of the Mannor of Kingsbury, to him and to the heirs males of his body, and 32 H. 8. Leas­ed a Field called Stalling, parcell of the said Mannor, to Tho. Coke for years, and afterwards, 4 E. 6. Leased the said Field (the first Lease be­ing [Page 6] in esse) to Sir Geo. Griffith for seventy years, who assigned the same to A. Bracebridge Brother of the Lessor, and to Joyce Wife of the Lessor, and afterwards, 5 E 6. the said Tho. Bracebridge, the Lessor, by his Deed In­dented, gave the said Mannor to the said Sir George by these words (de­di, concessi, barganizavi, & vendidi) Proviso, and upon condition, That the said Sir George, should pay to the said Thomas Bracebridge, within fifteen days after, ten hundred pounds, and if he fail of payment thereof, that then after the said fifteen days, the said Sir George should be seised of a Te­nement, parcel of the said Mannor of the yearly value of three pounds (now of sate in the occupation of Thomas Smith) to the use of the said Thomas Bracebridge for his life, and after to the said Sir George, until he had levyed five hundred pounds for the payment of the debts, and the education of the children of the said Thomas Bracebridge, and after to the use of the Defendant in tail: And of the residue of the said Man­nor, to the use of the said Tho. Bracebridge, and of the said Joyce his Wife for their lives, &c. Tho. Bracebridge, made livery to the said Sir George, in one place parcel of the said Mannor, which was in his own occupa­tion in the name of the whole Mannor: the fifteen days incur with­out payment of the said ten hundred pounds, the Indenture is enrol­ed, Coke attorns, Joyce dyes, Tho. Bracebridge grants the Lands to a stranger by Fine, and before Proclamations, Thomas his Son and Heir apparent, within age, enters in the name of the Feoffees by reason of the forfeiture, Proclamations are made, Tho. Bracebridge the Father dy­eth, the Term of Coke expireth, A. enters, and leaseth to the Plantiff, who enters, upon whom Tho. Bracebridge the Son enters, upon which Entry the Action is brought, it was argued by Beamount the elder: Al­though here in the Indenture of bargain and sale, there is not an ex­press consideration set down in the common form of a consideration, yet because the consideration is implied in the condition, it is good e­nough (see the Proviso and condition, ut supra, that the said Sir George should pay, &c.) As if I bargain and sell to you my Land, Proviso that you pay to me for the same at such a day one hundred pounds, that con­sideration set down in the form of a condition is as effectual, as if it had been formally expressed in the usual Terms. As to the second pay­ment, Where a man bargains and sells his Lands by Deed indented to be enroled, and before enrolment he makes Livery to the Bargainee, and afterwards the Indentur is enroled, the Court discharged Bea­mount from the arguing of that Point,Live [...]y, where it prevents o­peration of an Enrol­ment. for by Wray, the Livery doth prevent the operation of the Enrolment, and Sir George shall be ac­counted in by the Livery, and not by the bargain and sale; for Livery is of more worth, and more worthy ceremony to pass estates, and there­fore shall be preferred: and then the Livery being made in such part of the Mannor, which was in the possession of the Feoffor in the name of the whole Mannor, no more of the Mannor passeth but that which was then in the possession of the Feoffor: And the Reversion of such part of the Mannor which was in Lease shall not pass without Attornment, but when the Enrolment cometh, now the whole passeth, and then the Re­version being setled by the Enrolment, the Attornment coming af­terwards hath no relation: See 48 E. 3. 15, 16. The Iury here have found the default of payment, whereby the conditional use which passed by the bargain and sale, upon the condition broken, shall be reduced to the Bargainor without any Entry,1. Cro. 382. and then the uses limited after are void, for an use limited upon an use cannot rise; quod fuit concessum per to­tam curiam: Then Bracebridge the Father, having the Inheritance of the said Mannor in his own right, and the interest de futuro for years in the right of his Wife joyntly with the said A. when he sells the said Man­nor by Deed indented and enroled now thereby the interest for years which he hath in the Right of his Wife doth not pass, for a bargain and sale is not so strong a conveyance as a Livery. As if I have a Rent-charge in the right of my Wife, out of the Manor of D. which Manor [Page 7] afterwards I purchase, and afterwards by Deed indented and en­roled, I bargain and sell the said Manor, &c. the Rent shall not pass. Then the said Thomas Bracebridge the Father having the said Right of an entail to him and to the Heirs Males of his body, and being Te­nant for life, by his own conveyance, the Remainder in tail to his Son and Heir apparent, the now Defendant, when he levyeth a Fine, and the Son enters for forfeiture before Proclamations pass, and his Fa­ther dyeth, in that case the Defendant is not remitted unto the first entail, although after Proclamations pass in the life of the Father, and so he shall not avoid the Leases; for notwithstanding that the Issue in tail by that Entry hath defeated the possession which passed by the Fine, yet as to the right of the old entail, the Fine doth retain its force, and so he entred, quodam modo, in assurance of the Fine: As if Tenant in tail doth discontinue and disseiseth the Discontinuee, and le­vieth a Fine with Proclamations, and the Discontinuee enters within the five years, now although the Fine as to the Discontinuee be avoid­ed, so as the possession which passed by the Fine is defeated, yet the right of the entail doth continue bound: Egerton Solicitor contrary: and he conceived, that all the Mannor doth pass by the Livery to Sir George, and nothing of it by the Enrolment, and that the meaning of the par­ties was, that all should pass by the Livery, for if the assurance should enure by the bargain and sale, then the second uses limited upon default of payment, should never rise; for an use upon an use cannot rise, and then the said uses limited for the payment of the debts of the Fe­offor, &c. should be defeated; and also where at the begining of the as­surance, the condition was entire, the warranty entire, &c. and if such construction should be allowed, here shall be a divided condition, a divided warranty: And also the meaning of the parties that the whole Mannor should pass, by such construction should be dismembred, and part pass by the Livery, and part by the bargain and sale, and we ought to make such constructions of Deeds, that things may pass by them according to the meanings of the parties; as if I be seised of a Mannor to which and Advowson is appendant, and I make a Deed of Feoffment of the same Mannor, cum pertinencijs, and deliver the Deed to the party, but no Livery of seisin is had, the Advowson shall not pass, for then it should be in gross, whereas the meaning of the parties was, that it should pass as appendant, and that in such case cannot be, for there is no Livery, therefore it shall not pass at all, and so it hath been adjudged: So if I bargain and sell my Mannor of D. and all the Trees in the same, and I deliver the Deed, but it is not enrolled, the Trees shall not pass, for the intent of the parties was, that the Trees should pass, as par­cel of the Free-hold and not as Chattels. And as to the remitter, I con­ceive, that the Heir entring as Heir, by the Law is remitted, but where the Entry is given by a special Statute, there the Entry shall not enure further than the words of the Statute; As Land is given to the Husband and Wife, and to the Heirs of the body of the Husband, the Husband levieth a Fine and dieth, the wife entreth, this Entry shall not avail to the issue in tail, for the Entry is given to the Wife by a special Law: And he cited Sir Richard Haddons Case, the Husband aliened the Lands of his Wife, they are divorced, the Husband dieth, the Wife shall not enter by 32. H. 8. but is put to her Writ of Cui in vita ante divor. And afterwards the same Term the Iustices having con­sidered of the Case, delivered their opinions upon the matters by Wray chief Iustice, viz. That the one moyety of the Lease was extinct by the Livery, viz. the moyety of Ioyce the Wife of the Lessor; and as to the other moyety it is in being, for here is no remitter; for if any remitter had been in the Case, it should be after the use raised, which is not as yet raised, for the Land ought to remain in Sir George until the said five hundred pounds be levyed, and that is not found by the Verdict, and therefore for the said moyety, the Plaintiff had Iudgment.

XI. Treshams Case. Mich 25 & 26 Eliz. in the Exchequer.

SIR John Tresham seised of the Manor of D. holden of the King in Ca­pite by Knights service, 4 H. 7. enfeoffed Edmund Earl of Wilts and N. Vaux Knight, who gave the said Manor to the said Sir John in tail, upon condition that he should not alien, &c. quo minus, &c. John Tresham dyed seised, by whose decease the Manor descended to Tho. Tresham, who entred,2 Len. 55, 56. and 18 H. 8. aliened with licence, by recovery, &c. N. Vaux the surviving Feoffee died, having issue W. Lord Vaux; the purchasor died seised, his Son and Heir 14 Eliz. levied a Fine Sur Conusans de droit, &c. and that Fine was levied to the use of the Conusee, &c. and that with­out licence: The Lord Vaux within five years after the Fine levied, entred for the condition broken: and now issued forth a Scire facias a­gainst the Conusee for that alienation without licence, who made de­fault, whereupon issued process to seize the Lands; whereupon came Sir Tho. Tresham, Fine for Alie­nation with­out Licence. and shewed the whole matter aforesaid, and prayed to be discharged. It was said, that this Prerogative to have a Fine for alienation without licence, had lately beginning upon the original creation of Seignories, so as this prerogative is as it were paramount the Seignory, and shall go paramount the Condition, as well as the Condition is paramount the Alienation, but if the disseisor of the Te­nant of the King maketh a Feoffment in Fee, now upon the entry of the disseisee, the person of the Feoffee shall be charged with a Fine, but the Land by the re-entry of the disseisee is discharged: and such is the opinion of the Lord Frowick, in his Reading upon the Statute of Prero­gativa Regis, and the reason is, because the disseisor is not Tenant to the King, and so when he aliens, it cannot be said an Alienation by the Kings Tenant. See 45 E. 3. 6. If the Tenant of the King in chief seaseth for life with licence, and afterwards grants the Reversion over without licence,Entry for Con­dition, what acts it shall defeat. the Tenant for life is not bound to atturn in a Quid juris clamat; wherfore it seems, that if such Tenant doth attorn, the King shall seize presently. This Entry for the Condition broken is not to have so violent a retrospect to the first livery to which the Condition was annexed, that it shall defeat all things mean between the Creation and the breach of the Condition, but it shall defeat all mean things which rise upon the act of the party, as Rent, Dower, &c. But charges which accrue by reason of Tenure, do remain, notwithstanding the En­try for the Condition broken: As if such a Tenant of the King ma­keth a Feoffment in Fee upon condition, which is broken, the Feoffee dieth seised, his Heir of full age, the Feoffor re-entereth, this re-entry by force of the condition broken hath not so avoided the descent, but the King shall have Relief upon the said descent, for the Relief is para­mount the Livery, and the condition. So if a Feoffee upon condition disclaim in Avowry,Condition shall not avoid an Interest vested. by which the Lord brings a Writ of Right Sur Disclaimer, and hath Iudgment; the Feoffee entreth for the condition broken, the said re-entry shall not avoid the interest of the Lord by the Iudgment on the Writ of Disclaimer, but he may enter at his plea­sure; and it was moved by Plowden who argued for Tresham, that if the Tenant of the King, being Non Compos mentis, makes a Feoffment in Fee, and dieth, his Heir entring upon the Feoffee shall not pay a Fine for the Alienation of his Father, but the person of the Father shall be charged with it. And at the end of this Term, after many Arguments and Motions, Iudgment was given for the Queen, that she should seize the Land and hold the same for the Fine, and that she should not be driven to sue the person of the Feoffee or Conusee: And by Manwood chief Baron, at the Commom Law in many Manors, Tenant in [Page 9] soccage upon every alienation shall pay a Fine, nomine relevii, a fortiori, in the Kings case, and therefore he was of opinion, That this Preroga­tive to have a Fine for alienation without licence is by the common Law, and not by any Statute.

XII. Caters Case. Mich. 25 and 26 Eliz. in the Exchequer Chamber.

A Bill of Intrusion was in the Exchequer against Cater, Intrusion. 7 Co. 12. 1 Anders. 95. who plead­ed the Grant of the Queen, the Plaintiff replicando said, that be­fore the Queen had any thing, &c. Sir Francis Englefield was seised of the Manor, of which, &c. and he being beyond the Seas, the Queen sent her Letters under the Privy Seal, Quod ipse in fide, & legeantiâ quâ dictae Re­ginae tenebatur, indirecte rediret in Angliam, praedict. tamen Franciscus (spretis man­datis dict. Reginae) venire recusavit, for which a Certificate was by the said Queen into the Chancery, Quod dictus Franciscus in portibus transmarinis sine li­centia dict. Reginae remansit: And thereupon a Commission was awarded to seize the Lands of the said Sir Francis, which was entred in the Replica­tion in haec verba, reciting also the Queens Privy Seal, and that the said Sir Francis did stay there (spretis mandatis, &c.) for which the Queen seised and granted to the Plaintiff: And afterwards the Statutes of 13 and 14. Eliz. were made: after which the said grant was made to the Defen­dant, upon which matter there was a Demurrer and Iudgment given for the Plaintiff.Error. And now Cater brought a Writ of Error in the Exche­quer Chamber, and it was first assigned for Error, because that the Record is entred Inter Johannem Cater present. hic in Curia by I.S. Attornatum suum, and that cannot be, for it is oppositum in objecto, that one can be present in Court and also by Attorney, simul & semel, for the Attorney is to supply the default of the personal presence. To which it was said by Wray, An­derson and Periam, that the matter assigned was no Error, for there are many Presidents in the Exchequer of such Entries, which were openly shewed in Court. 48 E 3. 10. R 2. 20 H 7. 20 H 8. And by Manwood chief Baron it is not so absurd an Entry as it hath been objected, for if one hath an At­torney of Record in the Kings Bench, and he himself is in the Mar­shalsey, there is an Action against him, he is present as Prisoner, and also by Attorney; and by them, notwithstanding that here appeareth a con­trariety, for such Entry properly is (presentem hic in Curia in propriâ persona sua) yet because many proceedings are according, it is the more safe course to follow them, for if this Iudgment be reversed for this cause, many Records should be also reversed, which should be very perillous: An other Error was assigned, because it is not alledged in the Replication, of what date the Privy Seal was, nor that any notice of the said Privy Seal was given to Sir Francis; to which it was said, that the Privy Seal need not any date, especially in this case, for the matters which are un­der the Privy Seal are not issuable. See 2 Eliz. Dyer. 177.Privy Seal. nor any traverse can be taken to it; and this Privy Seal is not as other Writs and Prae­cipes are, returnable in any Court, but the Queen her self from whom originally it came shall receive it, and also the Message upon it, and she her self in such case is Iudge of the contempt, and no Record of that Privy Seal doth remain in any Court, but the Queen her self shall keep it, and then when the Queen is informed of the contempt, she makes a Warrant somtimes to the Chancellor to award a Commission, somtimes to the Treasurer and Barons of the Exchequer to the same purpose to seize the Lands, and that Warrant is signed, with the Seal manual of the Queen, and the Queen may certifie, and set down the cause of such seizure in such Warrant, and no other Certificate is made by the Queen, and the Queen may certify the same Commission by word of mouth, and if the other party will say that the Queen hath not certified it, he shall be concluded by the commission which is under the great Seal; and di­verse [Page 10] Prsidents were shewed openly in Court to that effect. And all the matter aforesaid, was agreed by the Chancellor, Treasurer, and the said Iustices, and no certificate at all needs to be in the Case, and then a superfluous Certificate being nought, shall not hurt: for Nugation is surplusage. Another matter was to consider, what interest the Queen hath in the Lands of Fugitives by the common Law; And as to that they were all clear of opinion,Fugitives. that the Queen in such case as afore­said may seize, and assign her interest over: And that such Assignees may grant Copy-holds, parcel of the Manor assigned, which grants shall bind him who cometh in after, cum manus Domini regis amoventur; and also when the Statutes of 13 and 14 Eliz. come,Dy. 375 b. the Statutes do not amend the estate of the Queen, but the estate of the Queen doth continue as before, and all the Estates under it. And there was shewed unto the Court divers Presidents of seizures in such Cases, 18 E 2. Edmond de Woodstock, Earl of Kent, went beyond Sea without Licence of the King, and he went with Robert de Mortimer, and the King did certifie the same into the Chancery, reciting that he had sent his Privy Seal, &c. but that the said Edmond (spretis mandatis nostris redire recusavit) upon which issu­ed a commission to seize, &c. And it was holden that the Queen having seised hy force of the common Law, and making a grant of a Copy-hold out of it, now when the Statutes of 13 & 14 Eliz. are made, she hath not any estate thereby, for she had such interest before, and this new seisure after the Statutes works nothing, and nothing accrues to her thereby, whereof she can make a seisure: For she hath departed with the whole before, See 23 Eliz. Dyer 376. And note, that the grant of the Queen in the case at Bar was, quamdiu in manibus nostris fore con­tigerit. And afterwards Iudgment was given, that judicium praedictum in omnibus affirmetur.

XIII. Sutton, and Dowses Case. Ter. Mich. 25 & 26 Eliz. in the Common Pleas.

SUtton, Vicar of Longstoke, Libelled against Dowse in the spiritual Court,Tithes. and shewed in his Libel, that upon the Erection and En­dowment of his Vicaridge, four quarters of Corn were assigned to the Vicar out of the Granary of the Prior of B. of the Tithes of the Parson of Longstoke, and that the Parson or Fermor of the said Rectory of Longstoke, had always paid the said four Quar­ters of Corn to the said Vicar and all his Predecessors, and al­ledged further, that the Lord Sands was seised of the said Rectory, and leased the Barn and Tithe-Corn parcel of the said Rectory, to the said Dowse, his Wife and Son, Habendum to Dowse for Term of his life, the Remainder to the Wife for Term of her life, the Remainder to the Son for life: And shewed further, that the said Dowse had covenant­ed with the said Lord Sands, to render the said four Quarters of Wheat to the Vicar and his Successors, upon which Dowse procured a Prohi­bition, and Sutton prayed a Consultation, and it was moved in stay of the Consultation that the Vicar had Libelled upon a Covenant wherein Dowse is taxed to pay the said Corn, and that is a lay Title, and determinable by the Law of the Land, and not in the Ecclesiastical Court: But as to that the opinion of the Court was, that the Libel is not grounded upon the covenant, as the sole Title to the said Corn against Dowse, but upon the Endowment of the Vicaridge, and the Lease by which Dowse is become Fermor of the Rectory. Another mat­ter was moved, because that upon the Libel it appeareth, that the Lease aforesaid made by the Lord Sands was made to Dowse his Wife, and his Son, joyntly, in the Premisses, Habendum ut supra, in which case it was objected, that Dowse his Wife, and his Son, are all three Fermors of the said Barn and Tithes joyntly in possession, against all whom Sut­ton [Page 11] ought to have Libelled, &c. and not against Dowse only, for the Haben­dum hath not severed their estates which were joynt before,Co. 1 Iust. 783 l. qund tota cu­ria negavit, for the Habendum hath severed the joynt estates limited by the Premisses, and hath distinguished it into Remainders, but if the Haben­dum had been Habendum successive, the estate had remained joynt: Another matter was moved, because it appeareth upon the Libel, that the Par­son, or Fermor of the said Rectory ought to pay to the Vicar the said Corn, and also it appeareth upon the matter that Dowse is not Parson, nor Fermor of the said Rectory, for the Lord Sands had leased to Dowse and his Son, only the Barn and the Tith-Corn parcel of the said Rec­tory; so as Dowse is Fermor but of parcel of the Rectory, and the resi­due of the Rectory doth remain in the Lord Sands, in which the said Sut. ought to have Libelled against the Lord Sands, and Dowse, and not against Dowse only; And for that cause the Consultation was denyed. And in this case it was further agreed by the Court, that if upon a Libel in the spi­ritual Court, the Defendant makes a surmise in Banco to have a Pro­hibition, if such surmise be insufficient, the other party needeth not to demur upon it, and to have it entred upon Record, but as amicus Curiae, he shall shew the same to the Court, and the Court shall discharge him.

XIV. Punsany, and Leaders Case. Mich. 25 & 26 Eliz. In the Kings Bench.

OSmond Punsany brought an Action upon the case against Leader, and declared,Prescription of Foldage. that one Bedingfield was seised of the Manor of D. and that he and all those whose estate he hath in the said Manor time out of mind have had Libertatem Faldagij & cursum Ovium, in the Town of D. & pro meliori pasturatione omnium Ovium suorum, the Inhabitants of the said Town having any Lands within the said Town, every second year left their Lands to lye fresh and untilled, and prescribed further, that the Tenants of the Lands within the said Town might erect Herdals in in their Lands, with the Licence of the Lord of the said Manor, and not otherwise: and further declared, that the said Bedingfield had let to him the said Manor, and that the Defendant had erected Herdals upon his Lands without Licence, so as the profit of his Foldage is impaired by it: And all this matter was found by Verdict: And it was objected in stay of Iudgment, that the prescription is not good, for it is against Law and common right to abridge the Subject of the profits of his Lands: But the whole Court was clear of opinion, that the prescrip­tion is good enough, as 15 E 2. Prescription 51. Prescription to have common appendant in other Land afte that the Hay is cut, and v E. 1. Prescription, 55. A. seised of Lands may Plow it and Sow it, and cut and carry away the Corn, and afterwards when the Corn is carried, B. by prescription may have the said Land as his several, and the other who sowed it cannot meddle with that land, but to plow and sow it in season, &c. And the Cattel cannot eat and pasture in the Land when they come to plow or sow it, or to carry it away, nor have any profit but the Corn, and yet the Free-hold of the Land is in such person, &c. and that was holden a good Prescription, and a difference was taken by the Court, where one doth prescribe to take away the whole interest of the Owner of the Land, and where a particular profit is restrained: And here this prescription doth not extend but to restrain the Ter-tenant to erect Herdals, which is a reasonable prescription, See 1 H 7 24. The Lord of the Town doth prescribe to have free Foldage of the Beasts of his Tenants in D. and see there, that libera Falda is not any other, but to hav the Beasts of the Tenants to manure the lands of the Lord, &c. And afterwards Punsany the Plaintiff had Iudgment to reco­ver.

XVI. Mich. 25 & 26 Eliz. at Serjeants Inn.

IN the Dutchy Chamber, the case was, that King E 6. leased for years certain lands parcel of his Dutchy of Lancaster, rendring rent, with clause of re-entry, and that a lease was made to one Bunny; It was found by Office that the Rent was arrear, and by another Of­fice, that the Servant of the said Lessee, had tendred the rent in his absence, and by the commandment of his Master, and that afterwards one I. S. Receiver General of the Dutchy, received the said Rent, and had accounted for it, and upon his account it was allowed; And this matter was opened at Serjeants Inn in Fleet-street, before Wray, Anderson, Manwood, Clench, Rhodes, Plowden, and Stanhop; and it was argued by Shut­tleworth, that in this case of rent reserved upon a Lease for years, made by the King of Dutchy-Land,The King not bound to de­mand Rent. the King is not bound to demand it, but he may for default of payment of it, re-enter without demand, and that the Lessee is tied to tender it at his peril, as well as if the Queen had been seised of the said land in the right of her Crown; and as to that payment, the Statute of 1 H 4. is to be considered, by which it is en­acted, that the possessions of the said Dutchy Taliter, & tali modo, & per tales officiarios & ministros in omnibus remaneant, deducantur, & gubernentur sicut remanere, deduci, & gubernari debuissent, si ad culmen Regis Dignitatis assumpti non fuissemus, and these words ought to be intended of things which con­cern the Lands themselves; but this Act of demand is a personal thing, and concerns the person of the King, and toucheth the Majesty, and dignity of the King, and in all cases of the Dutchy the person of the King shall hold his priviledge, notwithstanding that the possession of the Land be carried in the course of a private person: And therefore if the Queen will alien Lands parcel of her Dutchy, she ought to make Livery, for now she meddles with the possession it self: but if the Queen will sue for parcel of her Dutchy, non omittas shall be in the Writ, for she cannot sue but as Queen, and the Queen hath such Pre­rogative, that none shall execute her Writs at her own sute, but the Officer of the Crown, 21 E 4. 60. for Livery, if it be not Land within the County Palatine, and for the residue, See 10 H. 4. 7. 3. Eliz. 216, 217. Plowden, Lessee for years of Lands of the Dutchy, shall have aid of the King before Issue joyned, &c. And if the King make a Feoffment of Lands of his Dutchy out of the County Palatine, to hold of him in Capite, the Feoffee shall hold it so, and a Feoffment of such Lands upon condition that the Feoffee shall not alien is a good condi­tion, and Lapses shall not bind the Queen in case of an Advowson which the Queen hath in the right of the Dutchy, and if the Villain of the Queen in the right of the Dutchy purchaseth Lands in Fee, and aliens, yet the Queen shall seise, and that hath been adjudged in the Exchequer Chamber; and if the Queen make a Lease of such Land, and afterwards makes another Lease of the same Land without reci­tal of the first Lease, it hath been adjudged that the second Lease is void. It was argued contrary by Beamount the younger, that this con­dition which goeth to the realty, to reduce the Land again, ought to be ordered and governed by the Queen, as it ought to be by a Subject; and therefore, if the Queen will take advantage of this condition, she ought to make a Letter of Attorney under the Dutchy Seal, to her own Officer, authorizing him thereby to make demand of the said Rent, &c. And by Shuttleworth here be two Offices, the one contrary to the other, the best shall be taken for the Queen, 14 E 4. 5. in Skreens Case in the end of it: And if the Rent of the Kings Farmor be behind, now although that after the Receivor of the Dutchy doth receive it, yet the same doth not purge the forfeiture, as if the Bayliffs of a Manor receive rent of a new Feoffee, the same will not change the Avowry of the [Page 13] Lord without notice given to him, 41 E 3. 26. And if a Copy-hold escheat, the Steward without a special Warrant cannot grant it o­ver de novo.

XVI. Rearsbie and Rearsbies Case Intrat. Trinit. 25 Eliz. rot. 746. Mich. 25 and 26 Eliz. in the Kings Bench.

REplevin by W. Rearsbie against A. Rearsbie, and L. Rearsbie, who avow the distress, because that one W. Vavasour was seised of the Man­or of Deniby, whereof the place where, &c. is parcel in his Demesne as of Fee, and so seised gave the said Manor to one L. Rearsbie Father of the Plaintiff, and of the Avowants and Jane his Wife, and to the Heirs of Lyonel, who by his Will devised unto A. Rearsbie a Rent of four pounds out of the said Manor, with clause of distress, for his childs part, to be yearly paid, Lyonel the Father died 3 Eliz. and afterwards, 22 Eliz. Jane died, and for the arrearages of the said Rent encurred mean between the death of Loynel and Jane his Wife, &c. upon which Avowry the Plain­tiff did demurr in Law, for the Rent doth not begin in effect, but after the death of the Wife of the Devisor,Construction of Devise. for such construction ought be made of the Devise, as not to charge the Inheritance with the whole ar­rearages, &c. and it was argued to the contrary, that the Defendant might well avow the distress for these arrearages; for if he in the Re­version upon a Lease for life grant a Rent charge after the death of the Grantor, the Grantee shall distrein for all the arrearages encur­red after the grant, etiam, during the life of the Grantor,Distress. quod Curia con­cessit: and it was said by the Council of the Avowant, that the Case at Bar is a stronger Case, for this Rent, as it appeareth by the words of the Devise, was devised to the Avowant for his livelihood, and for his childs part, which words imply a present advancement, and these words yearly to be paid are strong & pregnant to that intent. It was adjourned.

XVII. Hill. 25 Eliz. in the Kings Bench.

THe Earl of Northumberland brought debt upon arrearages of Ac­compt, the Defendant shewed that before the Accompt,Account. the Plaintiff of his own wrong did imprison the Defendant, and assigned Auditors to him being in prison, and so the Accompt was made by duress of impri­sonment: And the same was holden a good Plea by all the Iustices of both the Benches. And Iudgment was given accordingly.

XVIII. Pasch. 26 Eliz. in the Kings Bench.Pasch. 26. Eliz. Forman and Bohans Case.

REplevin by Forman against Bohan, Replevin. the Defendant avowed for a Rent charge, and shewed, that one Wingfield was seised of the Manor of Wesham, whereof the place where, was parcel: And 33 H 6. made a Fe­offment in Fee of the place where, &c. to one Orlow, rendring Rent and Sute at the Court of the said Manor, and that the said Wingfield was sei­sed of the said Rent and Sute accordingly, and died thereof seised, and that the same descended to Anthony Wingfield as Son and Heir,1 Cro. 39. &c. who was seised of the said Rent as parcel of the said Manor, and that the said Anthony, so seised of the said Manor and Rent, bargained and sold the said Manor and Rent, 26 H 8. to Nicholas Bohan Father of the Avow­ant, by these words; Manerium de Wesham, & omnes omnimodos redditus, repu­ted, deemed, or adjudged part or parcel of the said Manor, who entred, and died seised, and the same descended to the now Avowant, as Son and [Page 14] Heir, &c. and averred, that the said Rent at the time of the bargain and sale aforesaid, & diu ante, was reputed parcel of the Manor aforesaid: Vp­on which Avowry, the Plaintiff did demur in Law, and it was argued by Gawdy Serjeant for the Plaintiff, and he took an Exception to the A­vowry, because the Avowant sheweth, that Anthony Wingfield 26. H 8. bar­gained and sold the said Manor to Bohan, Virtute Quar. bargaine & venditi­onis, & vigor. cujusdam Actus Parliamenti 27 H 8. de usibus, &c. the said Bohan was seised, &c. where he ought to have said; by force of which bargain and sale the said Anthony Wingfield was seised of the said Manor aforesaid, to the use of the said Bohan, and that afterwards by reason of the said Sta­tute of 27 H 8. the said Anthony then seised to the use aforesaid, the said Bohan was seised in his Demesne as of Fee: For it might be for any thing appearing in the Avowry, that before the said Statute of 27 H 8. Anthony Wingfield had made a conveyance upon consideration to him who had not notice of the use, so as the use being suspended, when the Statute came, it could not be executed, for there was not any seisin to the use, and to that purpose he cited the Case of 7 H 7. 3. where a gift of Trees by Cestuy que use is pleaded, without alledging that the Feoffors were sei­sed to the use of the Donor at the time of the gift: To that Exception it was answered by Popham Attorney General,Averment. That there is a difference betwixt the Case at Bar, and the Case of 7 H 7. for where a man enti­tles himself by Cestuy que use, he ought to maintain such title by every ne­cessary Circumstance, which the Law without expressing will not intend; but where a man alledgeth a matter, which is but a conveyance, there needs no especial recital; as if a man will pretend the grant of a Re­version, and that the lessee for years did attorn, he needs not to shew, that at the time of the Attornment the Grantor was seised,1 Cro. 746. [...]4 [...]. &c. and he cited the Case of 10 E. 4. 18. In Trespass, the Plaintiff by way of Replica­tion made to him a title, that A. was seised and leased to him at Will, by force of which the Plaintiff was possessed, until the Defendant did the Trespass, and Exception was taken to it, that the Plaintiff in his Replication had not averred, that A. was alive at the time of Trespass, and it was not allowed, for the subsequent words (by force of which the Plaintiff was possessed until the Defendant did the Trespass) do a­mount unto so much, for the Plaintiff could not be possessed by force of the said Lease at Will if A. were not alive. So here, Bohan could not be here seised by force of the said Statute, if the seisin of the use which was raised by the bargain and sale had not continued until the coming of the said Statute: As to the matter in Law, Gawdy conceived that the averment in the perclose of the Avowry is contrary to the matter of the Avowry, for the creation of the Rent set forth in the Avowry proves, that the Rent is not parcel of the Manor, but a Rent in gross, and then the general averment, that the Rent is parcel of the Manor, without shewing how, against the special matter of the Avowry, is not receivable.Reputation. And also nothing can be by reputation parcel of a Manor which in rei veritate cannot be parcel of a Mannor, but a Rent charge cannot be in rei veritate parcel of a Manor, ergo, nor by reputation: Pop­ham contrary; That the averment is not contrary to the matter of the Avowry, for the matter disclosed in the Avowry proves, that it is not rei veriate parcel of the Manor, but it doth not exclude Reputation, and the Averment doth not extend ad veritatem facti, which is set forth in the Avowry, but only to reputation, and so both stand together well e­nough:Rent charge parcel of a Manno [...] And that a Rent charge may be parcel of a Manor, see 22 E 3. 13. 31. E 3. 23. in the Lord Tiptofts Case, where it is ruled, that title made to a Rent charge as parcel of a Manor is a good title, and the Assize a­warded upon it, and in our Case the Reputation is enforced by the sute at the Court, which was also reserved upon the said Feoffment toge­ther with the said Rent, so as the intent of the parties to the Feoff­ment was, that this Rent so reserved and accompanyed with the said [Page 15] sute shall be esteemed a Rent service, and so parcel of the Manor; and as to the continuance of Reputation it sufficeth, if at the time of the bargain and sale aforesaid, which was 26 H 8. it was by many reputed parcel of the Manor, and he cited the Case of the Marquess of Win­chester: The King gave to his Ancestor the Manor of Dale and all lands then antea reputed parcel of the said Manor, and in a Bill of Intru­sion against the said Marquess he pleaded the grant with averment, that the Land then antea reputed parcel Manerii praedict. And because he did not shew certainly at what time the Land was reputed parcel of the Manor, Iudgment was given for the Queen; for it might be for any thing in his Plea, that the said Land was reputed parcel of the said Manor before time of memory, which Reputation would not serve: but such Reputation ought to be within time of memory and under­standing: He cited also the Case of the Earl of Leicester. King Edward the sixth seised of the Manor of Clibery, of which a Wood was parcel, granted the said Wood in Fee, which afterwards escheated to the King for Treason; Queen Mary granted the said Wood to another in Fee, who granted it to the now Queen, who granted the said Manor & om­nes boscos modo vel ante hac cognit. vel reputat. ut pars, membr. vel parcel. Maner. praedict. to the Earl of Leicester, and it was resolved in the Exchequer, that by that grant the said Wood did pass to the Earl, and Iudgment was given against the Queen,Dy. 362 [...]. for it was part of the Manor in the time of E 6. at which time (ant' hac) without the word (unquam) shall be extended ad quoddamcunque tempus praeteritum. And Reputation needs not so ancient a Pedigree for to establish it; for general acceptance will produce re­putation: As the house of the Lord Treasurer now called Tibould was of late a private Manor, but now hath a new name by which it is known, and that within these twenty years, which is not so long a time as we have alleged for our Reputation, and would pass in a convey­ance by such name; so None-such. But as to Reputation, I conceive that Reputation is not what this or what that man thinketh,Reputation. quid. but that which many men have said or thought, who have more reason to know it; & quaenam est inter illos reputatio, There was a Case ruled in the Exche­quer 13 Eliz. in a Bill of intrusion; the Case was, that King Hen. 6. was seised of a Manor, to which a Neif was regardant, who purchased Lands, which the King seised, and let by Copy as parcel of the said Manor, and so continued until the time of E 6. who granted the same to Allice Hardwick, and all Lands, Tenements, reputed parcel of the said Manor; And it was adjudged, that the said Land so purchased by the said Neif, and demised by Copy, did pass by the said grant to Hardwick. And afterwards, the same Term, the Iustices, without any solemn Argument, shewed their opinions in the principal Case, viz. That this Rent did not pass by the bargain and sale made as above, by Anthony Wingfield, to Bohan father of the Avowant; for here in the premisses of the Avowry is not any matter set forth importing Re­putation, or by which it may appear that the Rent in question was ever reputed parcel of the said Manor, but rather to the contrary; and the bare averment of Reputation in the conclusion of the Avowry is not sufficient to induce Reputation. But if the Avowant had set forth in his Avowry any special matter to induce the Court to conceive a Re­putation upon the matter of the Avowry, as to shew that the Bayliffs of the said Manor had always received the said Rent as parcel of said Manor, and as Bayliffs of the said Manor had accounted for it, as parcel of the Manor, and that the Lessees of the said Manor had en­joyed the said Rent as parcel of the said Manor, the same had been good matter to induce a Reputation, & to have incorporated the said Rent with the said Manor: and so judgment was given against the Avowant; and [Page 16] of such opinion (as was affirmed by Wray) was Anderson, chief Iustice of the Common Pleas, and Manwood, chief Baron of the Exchequer.

XIX. Cham and Dovers Case. Pasch. 26 Eliz. in the Kings Bench.

Ejectione firmae.IN an Ejectione firmae, the Case was, that one Michel was seised of the Manor of D. within which diverse parcels of Land, part of the said Manor, where customary Tenements demised and demisable by copy, &c. according to the Custom of the said Manor for one, two or three lives, within which Manor there was a Custom, scil. that the Lord of the Manor, for the time being, might grant Copy-hold estates for life in Reversion; The Lord granted such Lands for life by copy in posses­sion, took a wife, and granted the same Copy-hold to a stranger in Reversion for life, and died, the Copy-holder in possession died, the Land demised by copy is (inter alia) assigned to the Wife for her Dower, who had Iudgment to recover in a Writ of Dower, who entred and made a Lease thereof to the Defendant, who entred, against whom, the Lessee of the Copy-holder brought Ejectione firmae, Custom ad pasturandum, non ad colen­dum. and all this matter was found by Verdict, and further found, that every Copy-holder of the said Manor, might Lease his Copy-hold for a year, ad pasturandum, sed non ad colendum, and that the Lease made to the Plaintiff was for a year, ad pasturandum. 1. Cro. 469. Wells versus Partridge. Post 100. Popham Attorny General, of Council with the Defendant, took exception to the Declaration, because the Plaintiff had declared a Lease at the common Law, and the Iury have found a Lease by the custom, which cannot stand together: And such a Verdict doth not main­tain the Declaration, as if the Plaintiff had declared upon a Lease for years of Lands, and the Iury found a devise for years, &c. but the ex­ception was disallowed by the Court. As to the matter in Law he ar­gued, that the Tenant in Dower should hold the Land discharged of the Copy-hold for her life, and he put this case, If the Lord of such a Manor taketh a Wife, a Copy-holder for life dieth, the Lord grants a Rent-charge out of the customary land, and afterwards grants the said land by copy for life, & dieth, the wife shall hold the land discharged of the Rent, but the Copy-holder shall be charged; and he put a differ­ence where the Lord grants such Copy-hold in possession, and where in Reversion, for in the first case the Wife shall hold charged, but contrary in the last: And he cited the Case of one Slowman, who being Lord of a Manor (ut supra) by his Will devised, that his Executors should grant estates by Copy,2. Len 109. and died having a Wife, the Executors make estates accordingly,Dower dis­charged of a grant of Co­py-hold. the Wife in case of Dower shall avoid them: Plowden contr. the Lord of such a Mannor is bound by recognisance, and afterwards a Copy-holder for life of the said Mannor dieth, the Lord grants his Copy-hold, de novo, the said new Grantee shall hold his Copy-hold dis­charged of the Recognisance, which Gawdy Iustice granted; and by Wray, if the Lord of such a Manor grants a Copy-hold for three lives, & takes a Wife, the three lives end, the Lord enters and keeps the lands for a time, and afterwards grants them over again by copy, and dieth, the copy-holder shall hold the Land discharged of the Dower, and this is a clear case, for the copy-holder is in by the custom which is paramount the title of Dower and the Seisin of the Husband; and by him in the case of the Earl of Northumberland, 17 Eliz. Dyer 344. That the grant of a copy-hold in Reversion by the Earl of Northumberland, doth not make such an impediment as was intended in the condition there, for it is by the custom, and not by the act of the party; And af­terwards, the same Term Iudgment was given for the Plaintiff, that he and his Lessor should hold the lands discharged of the Dower.

XX. Fringe and Lewes Case. Pasch. 26 Eliz. In the Kings Bench.

DEbt by Fringe against Lewes upon a Bond who pleaded,Debt. that the condition was, that whereas the Defendant was Executor to one Morris Degle, that if the Defendant should perform, observe, ful­fil, and keep the Will of the said Morris Degle in all points and Articles according to the true intent and meaning thereof, that then, &c. and pleaded further, that the said Morris by the said Will bequeathed to the Poor of such a Town ten pounds, to be distributed amongst them, and also to the Church-wardens of the Parish ten pounds, and to I S. three pounds, and that he had distributed the said ten pounds to the Poor, and that he had paid the ten pounds to the Church-wardens, and as to three pounds,Uncore pri [...] a good Plea. he said that he is and always was ready to pay the same to the said I. S. if he had demanded it, upon which there was a demur­rer: And as to the ten pounds to be distributed amongst the Poor, the same was holden good enough without shewing the names of the Poor amongst whom the mony was distributed; so the pleading of the first payment to the Church-wardens was sufficient without name­ing of them, See 42 E 3. brief, 539. Scire facias out of a Recovery a­gainst Executors, and the Writ was challenged, because it was Scire facias Executors, not naming their proper names; It was holden to be no exception, for Executors are as a corporation known, in that they are Executors; and as to the third part of the Plea, scil. always ready and yet is, the plea is well enough, for this Obligation (the Condition of which being general to perform the Will &c. Poph. 10 [...]) hath not altered the nature of the payment of the Legacy, but the same remains payable in such manner as before upon request, and not at the peril of the De­fendant. See 22 H 6. 57, 58. 11 E 4 10. 6 E 6. Br. Tender 60. And afterwards the same Term, the Court was clear of opinion, and so delivered the Law to the Counsel on both sides; that in this case the Legacies are to be paid upon request, and not at the peril of the Executors in such manner as they were before the Obligation, and afterwards Iudg­ment was given against the Plaintiff.

XXI. Sir John Smith, and Peazes Case. Pasch. 26 Eliz. In the Kings Bench.

SIr John Smith brought Debt upon an Obligation against Peaze, who pleaded, that the Bond was upon condition to perform covenants contained in an Indenture, and shewed what, and that he had performed them, the Plantiff assigned the breach of one covenant, that where the Plaintiff had leased to the Defendant for years, certain messuages by the same Indenture, the Defendant by the same Indenture, did covenant to repair all the said Messuages,Covenant alia quam quae appunctuatae forent divelli per script, dicti Johannis Smith, and shewed further, that the Defendant had not repaired the said Messuages to him demised as aforesaid, and averred that the said house in which the breach of the covenant is assigned, non fuit durante termino praedicto appunctuata di­velli, and upon that matter of reparation they were at Issue, and found for the Plaintiff: It was moved in Arrest of Iudgment, that the Averment in the Replication was not sufficient, for the Lease was made in November to begin the Michael. after,Averment. and it might be that the Messuage, in the not repairing of which the breach of the covenant is assigned, was appointed to be pulled down, scil. divelli, before the Term for years began, and then the Defendant is not bound to repair it, and then the breach of the covenant is not well assigned, and so the Aver­ment [Page 18] doth not answer the exception, and because this clause (alia quam) is in the body of the Covenant, it ought to be satisfied by him who pleads it, scil. by him who assigns the breach in the Covenant, in which the exception is contained; As by the Lord Dyer in his argument, in the argument of Stowels Case, reported by Plowden 376. Where a man pleaded the Feoffment of Cestuy que use, he ought to plead, that Cestuy que use, at the time of the Feoffment was of full age, sanae memoriae, &c. for that is within the purview, contr. upon the Statute of 4 H. 7. in pleading of a Fine, for that is in a clause by it self, which conceit of Plowden, the Lord Wray denyed to be Law, for he said, he that pleads the Feoffment of Cestuy que use, or a Fine according to the Statute of 4 H. 7. shall not be driven to shew that the Feoffor, or Conusor at the time of the Feoffment, or Fine levyed was of full age, &c. but he who comes in by such Fine, [...] 21, or Feoffment shall shew the same for his own advantage. And at last after many motions it was resolved by all the Iustices,Averment [...]here super­ [...]luous. that the Averment aforesaid was superfluous & ex abundanti, for it had been sufficient for the Plaintiff to have assigned the breach of the Covenant in the not repairing the Messuage without any Averment, de non appunctuando, and if the house in the not repairing of which the breach of Covenant is assigned, was appointed to be pulled down, the same shall come in on the defendants part to whose advantage it trencheth, for such appointment doth discharge the Covenant as to that: In the same plea, it was moved in stay of Iudgment that one Sharp, Solicitor of the said Sir John in the said suit, had given eight shillings to the Iu­rors, mean betwixt the Charge and their Verdict, and that matter was testified by the oaths of two men, upon which the Court examin­ed the said Sharp, who upon his oath denied the matter, and also the Foreman of the Iury to whom the mony was supposed to be given, who upon his oath denied the same: And it was moved, if receipt of mony by any of the Iurors should make the Verdict void; and by Wray it shall not, for it is but a Misdemeanor, which is punishable on the per­son of him who takes the mony: But Gawdy and Ayliff Iustices, the Verdict is void. See 24 E 3. 24. 14 H. 7. 1. 20 H. 7. 30. And for that cause the Iudgment was reversed.

XXII. Cordall and Gibbons Case. Pasch. 26. Eliz. Intr. Trin. 25. Eliz. Rot. 492. In the Kings Bench.

IN an Ejectione firmae, upon not guilty pleaded the Iury found the spe­cial matter, viz. that one Hierom Heydon was seised of two Messua­ges, whereof the Action is brought, and came to Cordall the Plaintiff, and prayed him to send him ten pounds; Cordall asked him, what assure­ance he would give him for the re-payment of it; he answered, that he would mortgage to him the said two Messuages, whereupon Cordall lent him the mony, and afterwards they both went to the said two Houses, and being before the doors, of them, Heydon called, Tenants at will of the Houses, and said to them, Sirs, I have borrowed of this Cor­dall ten pounds upon these Houses, and if I pay this mony at Michael­mas next, I must have my Houses again, and if not, then I bargain and sell these Houses to Cordall; and my Will is, that you become his Te­nants, after which Heydon put the said Cordall into the Houses, and see­ing him in the Houses, he put in the Keys of the said Cordall, by the Windows, &c. And it was adjudged by the whole Court, that this conveyance, by word of mouth, was good enough to pass the estate, ut supra, and the words of bargain and sale in this Case, are as strong, as of gift and grant, See 38 E 3. 11. 43 E 3. 11. 27 E 3. 62. 28 E 3. 11.

XXIII. Richards and Bartlets Case. Pasch. 26 Eliz. Intr. Mich. 25 & 26 Eliz. Rot. 72. In the Kings Bench.

DOrothy Richards Executrix of A. her former Husband,Assumpsit. brought an Action upon the Case upon a promise against Humfrey Bartlet, and declared, that in consideration of two weighs of Corn delivered by the Testator to the Defendant, he did promise to pay to the Plaintiff ten pounds, to which the Defendant said, that after the Assumpsit the Plaintiff in consideration, that the said two weighs were drowned by Tempest, and in consideration that the Defendant would pay to the Plaintiff for every twenty shillings of the said ten pounds three shill­ings four pence, scil. in toto thirty three shillings four pence, did dis­charge the said Defendant of the said promise, and averred further, that he hath been always ready to pay the said sum newly agreed, up­on which there was a demurrer. And the opinion of the whole Court was clearly with the Plaintiff, first because that here his not any con­sideration set forth in the Bar, by reason whereof the Plaintiff should discharge the defendant of this matter, for no profit but damage comes to the Plaintiff by this new agreement, and the Defendant is not put to any labour or charge by it, therefore here is not any a­greement to bind the Plaintiff, See 19 H. 6. Accord, 1. 9 E. 4. 13. 12 H. 7. 15. See also Onlies Case, 19 Eliz. Dyer, then admitting, that the agreement had been sufficient, yet because, it is not executed, it is not any Bar: And afterwards Iudgment was given for the Plaintiff.

XXIV. Lendall, and Pinfolds Case. Pasch. 26 Eliz. In the Kings Bench.

IN Trespass for breaking of his Close, by Lendal against Pinfold, Trespass. the Case was, that two brake the Close and entred, and did the Trespass, the Owner of the land brought an Action of Trespass a­gainst one of them, and had Iudgment, and execution accordingly, and afterwards brought Trespass against the other,Bar. 1 Cro. 667. 2 Cro. 73. 1 Cro. 30. 31. and declared up­on the same Trespass: And by Ayliff Iustice, it is a good Bar, and he likened it to the case of one Cobham, who brought an Action of Trespass of Assault and Battery, and recovered and had execution, and after­wards brought an Appeal of Mayhem against the same person upon the same matter, the said Recovery and execution is a good Bar, &c. so here as to the breaking of the close, but not as to the Entry: But by Wray, it is a good Bar for the whole, and he likened it to the case of Littleton, Pl. 376. A Release to one of the Trespassers, shall discharge both. Gawdy agreed in opinion with Ayliff.

XXV. Kempe, and Hollingbrooks Case. Pasch. 26 Eliz. In the Exchequer.

IN an Ejectione firmae for Tythes, the case was upon the Statute of 18. Eliz. Cap. 6. By which it is enacted, that no Masters,Tithea. and Fel­lows of any Colledge in Cambridge, or Oxford shall make any Lease for life or years of any Farm, or of any their Lands, Tenements, or o­ther Hereditaments to the which any Tythes, arable Land, Meadow, or Pasture doth, or shall appertain, unless the third part at least of the accient Rent be reserved, and payed in Corn for the said Colledges, [Page 20] &c. otherwise every Lease without such Reservation shall be void, &c. If now, the said Statute shall be construed to extend to Leases of such extraordinary pecuniary Tithes which are not natural or paid in kind. It was argued, that the said Statute is to be intended of Tithes in kind, and also of such things to be demised which render Corn, Hay, &c. But the Tithes in London which is the thing demised in our case, doth not render any such thing,Tithes in Lon­don. but only mony according to the decree made for payment of Tithes in London in the time of E. 6. And al­though the words of the Statute be (other Hereditaments) to the which any Tithes, &c. Yet the said Statute doth extend to Tithes in gross, but they ought to be such Tithes which are of such nature as Tithe-corn, and Tith-hay: And Manwood chief Baron held clearly, that the Lease of these Tithes is good enough, notwithstanding the defect by the special Reservation which is limited and appointed by the Statute, and so by him, a Lease of a House, Rent, Mill, Ferry, &c. are out of the said Statute: And as to the Tithes, notwithstanding the words of the Statute are general, any Tithes; yet he conceived, the Statute ought to be intended of Tithes of common Right, and not of such customary Tithes as those of London are, and therefore, if all the Parishoners prescribe in modo Decimandi, scil. to pay a certain sum of mony for all manner of Tithes, upon demise of such a Rectory, such special Reservation is not necessary, for these are Tithes against com­mon Right, and no Tithes are within the purview of the said Statute but those which are annual, and therefore a Lease of Tithe-wood is out of the meaning of this Statute, for non renovantur in annum; and he said that upon a Lease of the Tithes of Chery Trees, a rent ought to be reserved according to the Statute, and the Farmer may bring his Cheries to the Market, and buy Corn. Shute Iustice contrary, for the words of the Statute are general. And note, that this Lease was of the Rectory of Saint Lawrence in the City of London. There was ano­ther matter moved in this case, because the lease whereof the Action is brought, was made by the name of Master or Guardian, and the Fellows, whereas the true name of their Colledge is Master and Fel­lows.Misnosmer. And it was argued by Atkinson, that the same is not such a Mis­nosmer which makes the Lease void, for (sive custos) are words of sur­plusage, v. 7 H. 6. 13. And also the case of the Cooks, 20 Eliz. Plow. 531. The Corporation was by the name of Masters or Governors and Co­monalty, mysterii coquorum, &c. And they made a conveyance by the name of Masters or Governors, and Comunalty, artis sive Mysterii, &c. the same is no such Misnosmer as shall make void the conveyance, for Art and Mistery are both of one sense.

XXVI. Harvey, and Harveys Case. Pasch. 26 Eliz. In the Kings Bench.

Consultation. CLare Harvey, one of the Daughters of Sir James Harvy Alderman of London Libelled in the Spiritual Court against Sebastin Harvy, Son and Executor of the said Sir James, for a Legacy bequeathed to her by her Father; Sebastian did not appear, for which he was excommunicated and taken by a Writ of excommunicat. capiendo, and imprisoned; and af­terwards he came into this Court, and surmised to the Court, That the said Sir James in his life had given to the said Sebastian all his Goods and Chattells, and was also bound unto the said Sebastian in a Statute-staple of two thousand pounds, whereupon he had prohibition, and now the Plaintiffs counsel prayed a Consultation, quatenus non agitur ad vali­ditatem facti, aut Statuti. And Egerton Solicitor of Counsel with the Plain­tiff cited a Iudgment given in the like Case betwixt Lodge and Lud­dington, where such a special Consultation was granted: But Wray put a difference betwixt the said Case and the Case at Bar, for here in this [Page 21] Case is a gift by the Testator himself, but in the Case cited, the gift was by the Executor; and also here is a Statute of two thousand pounds, in which Case the Obligations which could not pass by the deed, shalll be subject to the said Statute.

XXVII. The Duke of Northumberlands Case. Trin. 26 Eliz. In the Exchequer.

THe late Duke of Northumberland seised of five Messuages in the Parish of St. Sepulchres London, in the Tenure of W. Gardiner, Bargain and sale. 3 Co. 9. by deed intented and enrolled for money bargained and sold to I. L. all his Tenements situate in the Parish of St. Andrews in Holborn in the Tenure of W. Gardiner, to have to the said I. L. for life, the remainder to K. his Daughter in Fee. Atkinson, The bargain and sale is void by reason of the Misnosmer of the Parish, notwithstanding the truth of the Tenure, for by the grant and bargain and sale of all his Tene­ments in the Parish of St. Andrews nothing passeth, and the truth of the Tenure subsequent shall not help it: And by Manwood chief Ba­ron, the sale is utterly void, for the falsity doth preceed the truth and certainty: And it was argued, that I. L. entring by colour of the same bargain and sale is a disseisor; as the Case is betwixt Croft and Howel, 20. Eliz. Com. 537. Yet if he was but Tenant at Will when he made the Lease for years, the same was a Disseisin to the said Duke; and then the Duke being disseised, he is attainted of treason, 10. Mariae. And now we are to see what things accrue to the Queen by the said Attainder: and as to that it was said, that at the Common Law a Right of Entry should Escheat, but not without office found there­of, no more than Lands in possession: And by the Statute of 26 H. 8. it is enacted, that every person attainted of high treason, shall forfeit all his Lands and Tenements which he had of any estate of Inherit­ance, by which Statute a Bishop, Abbot or Tenant in tayl in such Case shall forfeit even without Office: But in the Statute of 33 H. 8. there is a saving to every other person all such right, possession, so as in that Case by that Statute the King shall not be in possession with­out Office, but shall have a right, but cannot enter before Office or af­ter. And he is to have Sci. facias against him, who hath the possession, and he shall make his defence as well as he can; and the words of the said Statute, That the King shall be in actual possession, shall not be construed to extend to an actual and absolute possession, but such a possession, only which he had at the Common Law after Office found, so as the Statute doth not give to the King a larger possession but an easier, without the circumstance of an Office: And of that opinion was Manwood chief Baron, and Shute se­cond Baron: And then it was moved further by Cook, because that the Quen by the Attainder hath but a Right, and the Queen makes the grant of the Messuages themselves, the same grant is void. And he granted that the Queen might grant a real Action, and a Right of Entry; but such a grant ought to be conceived in special words, as to say, That the Duke of Northumberland was seised of five Messuages, and by such a one disseised, and after the Duke was attainted, and so granted; for the Queen may grant such a Right by reason of her Prerogative, and therefore the same ought to be granted by special words, as in the Case of Mynes in the Commentaries, and according to that was the opinion of the Iustices in Cromers Case, 8 Eliz. which Case see reported by Coke in the Case of the Marquess of Winchester.

XXVIII. Dayrel and Thinns Case. Trin. 26 Eliz. In the Kings Bench.

Error. EDward Dayrel brought a Writ of Error against Sir John Thinn up­on a Iudgment had by the Defendant against the Plaintiffs Fa­ther of the Manor of Mexden: And Error was assigned for want of warrant of Attorney. And the Plaintiff prayed one Certiorare to the chief Iustice of the Common Pleas, and another Certiorare to the Custos Brevium, both which returned, non inveni aliquod warr. and now Sir John Thinn being dead, the Plaintiff brought another Writ of Error by Journeys accounts against John Thinn Son and Heir of the said Sir John Thinn, 3 Cro. 91. 2 Cro. 13. 597. 396. 5 Co. Pag. 36. b. 446. who appeared and alledged Diminution, in hoc, that the Warrant of Attorney is not certified, and prayed another Certiorare unto the chief Iustice of the Bench, and another to the Custos Brevium, and it was argued by Clark, that in this Case Certiorare ought not to be granted, for a Certificate is in the nature of a tryal, which shall not be crossed in the same Action; but the parties to the Action, and their Heirs shall be bound by it, especially when the matter is certified by one who is Iudge of the Record, and that Certiorare sued at the prayer of the Plaintiff shall be as peremptory, as if it had been sued at the prayer of the Defendant, for the Plaintiff may alledge Diminution as well as the Defendant, 7 E 4. 25. by Yelverton. And a man cannot have Certiorare of a thing which is contrary to the Record, which is certified, 11 E 4. 10 by Laicon: So Diminution cannot be alledged in this War­rant of Attorney, because it hath been certified here, that no Warrant of Attorney is to be found, &c. 9 E 4. 32. by Billing; Egerton Sollicitor, contrary: For the Certiorare obtained at the sute of the Plaintiff, shall not prevent the Defendant. And the course of proceeding in a Writ of Error, when Error is assigned out of the Record, and not of a thing within the Record, is such: After Error assigned, before that a Sci. fac. issueth against the Defendant ad audiendum errores, the Plaintiff may pray a Certiorare to the Custos Brevium, in whose hands such collate­ral thing remain, for the Plea Roll doth remain in the custody of the chief Iustice, but the Original Writs, Essoins and Warrants of At­torney remain in the hands of the Custos Brevium; and such a Certiorare the Court may grant to the Plaintiff, without making the Defen­dant privy to it. And notwithstanding that the Defendant hath plead­ed, in nullo est erratum, and so hath affirmed the Record to be such as is certified, yet the Court ex Officio, shall award a Certiorare to ascertain themselves if there be any such Warrant of Attorney or not: which see 9 E 4.Certiorare. 32. by Billing, and therefore the Certiorare being awarded ex Officio, shall not prejudice the Defendant; and to this purpose he cited the Case betwixt the Lord Norris and Braybrook in a Writ of Error, where the Lord Norris being Plaintiff prayed a Certiorare to the Custos Brevium, to certifie an Original Writ, upon which a common Recovery was had, and had it, and the Custos Brevium certified, that there was no Original; and afterwards the Defendant prayed another Certiorare, and had it: and so in our Case here especially, because the Defendant was not party to the Record, nor hath day in Court, at the time that the said Certiorare was granted, for the Defendant is not party before the Sci. facias ad audiendum errore [...] be issued forth against him: and therefore he comes timely enough to pray a Certiorare. See 28 H. 6. 10. and 11. And I grant that the Certificate upon a Certiorare which was awarded after a Sci. fac. ad audiendum errores is peremptory and final, but contrary where it is granted before the awarding of such Scire facias: See Book of En­tries 271. The Plaintiff assigneth Error in the Original Writ, & petit br. Domini Regis Custodibus Brevium, &c. ad breve illud origin. certificand. and up­on [Page 23] the return of the Certiorare, the Plaintiff prayed a Scire facias ad audien­dum errores. And see there 293. where it appeareth, fol. 272. that Certio­rare issued at the suit of the Defendant in Error after he had alledged Diminution: and that is after Scire facias ad audiendum errores returned; and see Certiorare before Sci. facias awarded 271, &c. and this Certiorare is only ex officio, and awarded only to enform the Court: And in respect of the Certiorare the chief Iustice of the common Pleas, to whom the Certio­rare is directed, is but a Minister, and not a Iudge. And as to the Case of 9 E 4. 32. before cited, he could not have a Certiorare, Diminution. for he could not alledge Diminution, because he had pleaded in Nullo est erratum, by which Plea he had confessed the Record which is certified to be a full and perfect Record, and fully certified, and against that matter he shall not alledge Diminution: And in our Case there is not any such contrariety as hath been objected, for the return of the Certiorare is, Non inveni aliquod warrant. not precisely, quod non habetur aliquod warrantum; And therefore if the Court now at the prayer of the Defendant grant another Certiorare, upon which is a Retorn (quod habetur warr. Attornat.) the same is not contrary to the return of the first Certificate, but they may both stand together, for upon further search such Warrant of Attorney may be found: so upon the matter the Court shall not be enveigled by any such contrariety, for (non inveni aliquod warrant.) returned upon the first Certiorare, and (inveni quoddam warr.) upon the second Certiorare are not meer contrary; And it seemed to Wray chief Iustice, that it would be hard to grant a new Certiorare in this Case, but if any variance could be al­ledged it should be otherwise, as it was adjudged in the Case of one Lassell, who certified no Warrant of Attorney, and afterwards it was moved for another Certiorare, as it is here, and because the Original was inter Johannem Lassels ar. executor. Testi. &c. where he was not named Exe­cutor in the first Certiorare; upon that matter a new Certiorare was granted.

XXIX. Withy and Saunders Case. Trin. 26 Eliz. In the Kings Bench.

WIthy libelled against Saunders in the Spiritual Court,Tithes will not pass by grant without deed and now came Saunders and surmised, that Withy had libelled against him for Tithe-grass, and shewed, that all the claim that Withy had to the said Tithes was by a grant without deed, and by the Law such things would not pass without deed; And also that the Spiritual Court would not allow of this Plea, and therefore prayed a prohibition: And the Court upon the first Motion conceived a prohibition should pass, for if the grant be without deed, nothing passed, and then hath not Withy cause to claim these Tithes against the said Saunders. And notwithstand­ing that Tithes are quodam modo spiritual things, and so demandable in a Court of that nature, yet now in divers respects they are become a Lay-fee, and lay-things, for a Writ of Assise of Mortdauncester, and an Assise of novel disseisin lyes of them, and a Fine may be levyed of them. But it hath been doubted, whether Tithes be devisable by Will: But at another day the matter was moved, and the Court was clear of opinion, that a Consultation should be awarded, for whether Withy hath right or not right to these Tithes, Saunders of common right ought to pay his Tithes, and he ought to sever them from the nine parts, and whosoever takes them, whether he hath right to them or no right, Saun­ders is discharged: But Saunders may prescribe in modo decimandi, with­out making mention of any severance, and may surmise, that the Tithes do belong to I. S. with whom he hath compounded to pay such a sum for all Tithes, and afterwards a Consultation was awarded.

XXX. Stacy and Carters Case. Trin. 26 Eliz. in the Kings Bench.

STacy brought an Action of Trespass for breaking his Close against Walter Carter, And declared of a Trespass in Somers-Land in Tunbridge; The Defendant pleaded, that heretofore he himself brought an Assise of Novel disseisin against the now Plaintiff, and supposed himself to be disseised of his Free-hold in Lee juxta Tunbridge, and the Land where the Trespass supposed to be done was put in view to the Recognitors of the said Assise, and further averred, that the Land where, &c. and the Land then put in view is one and the same, &c. upon which there was a Demurrer: Exception was taken to the form of the De­murrer, because in the perclose and conclusion of the Demurrer these words are omitted,Averment. Et hoc paratus est verificare. But as to that, it was said by the Court, that the Demurrer was well enough, with or with­out such Averment in the conclusion of it, which see oftentimes in the Commentaries, &c. and in the Book of Entries 146. the greater part of the Demurrers have not any such conclusion. Another Exception was taken to the bar, because the Defendant pleads, that heretofore Walter Carter had brought an Assise against the now Plaintiff, &c. and that the Land put in view to the Recognitors of the Assise per praefatum Warrhamum Carter, &c. and the Land where, &c. is all one, &c. here is Warrhamum for Walterum, and notwithstanding that it was after de­murrer, and not after verdict, it was adjudged amendable; and as to the matter of the bar, it was said by the Defendants Council, that recovery of Lands in one Town, by Praecipe quod reddat, is not a bar for Lands in another Town; but where the recovery is by Assise it is other­wise, [...] for there the Plaint is general De lib. ten̄to, and the Plaintiff shall recover per visum Juratorum, and the view is the warrant of the Iudgment and Execution. And therefore if a recovery in an Assise be pleaded in bar, Not comprised, is not any Plea against it, as in the Case of re­coveries upon a Praecipe quod reddat; but not put in view, and so not com­prised, &c. which proves that the Record doth not guid the recovery, but the view of the Iurors. See 26 E 3. 2. Assise brought of Lands in D. the Tenant saith, that he holdeth the said Lands put in view joynt­ly with A. not named in the Writ, &c. and sheweth the deed of Ioynt­tenancy, which speaks of Tenements in B. and the plea holdeth good, because he alledgeth the Ioynt-tenancy and the Lands put in view: See 24 E 3. It was said on the Plaintiffs side, that recovery in Lee juxta Tunbridge could not extend to Lands in Tunbridge, no more than a recovery of Lands in one County can extend to Lands in another County: See 23 E 3. 16. Assise of Novel disseisin brought of Lands in N. the Defendant pleads recovery in Assise, &c. brought before by him against the now Plaintiff of Lands in H. and the same Lands put then and now in view, and adjudged no bar. See also 16 E 3. 16. in an Assise of Tenements in W. the Tenant pleads a Recovery of the same Lands agaist one A. by Assise brought of Tenements in C. which was found by the Assise, and that C. is a Hamlet of W. and the Plaintiff notwithstanding that recovery so pleaded had Iudg­ment, for a recovery of Lands in one Town shall not be a bar in an Assise of Lands in another Town. See Br. Tit. Iudgment 66. 10 E 3. And the whole Court was clear of opinion, that the plea in bar was not good, for in the Assise which is pleaded in bar in the principal Case, the Tenant there, who is now Plaintiff in this Action of Tres­pass, pleaded Nul tort nul disseisin, which is no plea, as to the Free-hold in Lee juxta Tunbridge, and therefore it cannot be like to the Case which hath been put of 26 E 3. for there the Tenant pleaded, that he held [Page 25] the said Lands put in view joyntly, for there he agreeth with the Plaintiff in the Lands demanded, the which Lands are put in view; but if in the Case at bar the Defendant being Plaintiff in the Assise, the now Plaintiff being then Tenant, had pleaded to the Land put in view in bar, and the Plaintiff in the Assise had recovered, now in this Action of Trespass the Plantiff in the Assise being Defendant in the Action of Trespass, might well plead this Recovery in bar, for by his plea in the Assise he hath tyed himself to the view, and to the Land put in view, but it is not so in the Case at Bar, where the Tenant in the Assise pleads, nul tort, nul disseisin, for there he doth not plead expresly to the Land put in view, but to the supposal of the Plaintiff, sc. de libero te­nemento in Lee juxta Tunbridge: afterwards Wray, with the assent of the other Iustices awarded, that the Plaintiff should recover his dama­ges: See by Wray, 44 E 3. 45. in Assise of Tenements in B. the Plaintiff pleads, that he himself brought an Assise of the same Tenements, and his plaint was of Tenements in E. and the same Tenements put in view, and recovered, and holden a good Plea, because the Tenant hath said, that the same Tenements were put in view, and that took by Assise, upon which the Plaintiff said, not put in view, and so not comprised.

XXXI. Benicombe and Parkers Case. Trin. 26. Eliz. In the Kings Bench.

IN an Action of Trespass the Iury found this special matter, that the Grandfather of the Plaintiff was seised, and made a Feoffment to the use of himself for life, the remainder to the use of John Father of the Plaintiff in tail, the Grandfather died, the Father entred,Feoffments and by Indenture by words of bargain and sale, without any words of Dedi & concessi, conveyed the Lands to the use of A. in Fee, and in the same Indenture was a Letter of Attorney to make Livery, which was made accordingly; and the said A. by the said Indenture covenanted, that if the said John should pay before such a day to the said A. forty shillings, that then the said A. and his Heirs would stand seised, &c. to the use of the said John and his Heirs; and if the said John did not pay, &c. then if the said A. did not pay to the said John within four days after ten pounds, that then the said A. and his Heirs from thenceforth shall be seised to the use of the said John and his Heirs, &c. and the said John covenanted fur­ther, by the said Indenture, to make such further assurance as the Council of the said John should advise. Each party failed of payment. John levied a Fine to A. without any consideration; it was adjudged upon this matter a good Feoffment well executed by the Livery,Hob. 151. Dyer 361. a More 194. Post. 195, 196, 197. More 35. b. not­withstanding that the words of the conveyance are only by bargain and sale; and that the Covenant to be seised to the new uses upon pay­ment, and not payment being in one and the same deed, should raise the use upon the contingency, according to the limitation of it; and Iudgment was given for the Plaintiff accordingly.

XXXII. Bedows Case. Trin. 26 Eliz. In the Kings Bench.

IN an Action of Debt upon a Bill sealed against one Bedow; he de­manded Dyer of the Bill, which was, Memorandum that I John Bedow have agreed to pay to R. S. the Plaintiff twenty pounds, and thereupon there was a Demurrer, first, that the Deed wanted the words In cujus rei testimonium, &c. but notwithstanding that the Court held the Deed good, and said so it was lately adjudged: Another matter was [Page 26] because the words of the contract are in the preter Tense, I have a­greed; but notwithstanding that exception the Plaintiff had Iudg­ment to recover, as by Wray, these words dedi & concessi, according to the Grammatical sence imply a gift precedent, but yet they are used as words of a present conveyance, & Iudgment was given for the Plaintiff.

XXXIII. Marsh and Smiths Case. Pasch. 27. Eliz. In the Common Pleas.

1 Cro. 38. 39. GEorge Marsh brought a Replevin against Smith and Paget, who make Conusans as Baylies to Ralph Bard, and upon the pleading the Case was, That Sir Francis Askew, was seised of the Mannor of Castord in his Demesne, as of Fee, which Mannor did extend unto Daston, North-kelsey, Grants. Mannor. 2 Len. 41, 42. South-kelsey D. and C. and had demesnes and services, parcel of the said Mannor, in each of the said Towns, and so seised, granted totum manerium suum de North-kelsey in North-kelsey, to the said Bard and his Heirs, and granted further, all his Lands Tenements, and Heredita­ments, in North-kelsey; and to that grant, the Tenants in North-kelsey did attorn; And the Land in which the said Distress was taken is in North-kelsey; the only question in the case was, if, by this grant to Ralph Bard, a Mannor passed, or not: And the case was argued by the Iusti­ces; And Periam Iustice argued, That upon this grant no Mannor passed, for before the grant, there was no Mannor of North-kelsey, or in North-kelsey, therefore no Mannor can pass, but the Lands and servi­ces in North-kelsey shall pass as in gross, for they were not known by a Mannor, but for parcel of a Mannor: And a Mannor is a thing which cannot be so easily created,Mannor, what it is. for it is an Hereditament which doth con­sist of many real things, and incorporated together before time of memory; common reputation cannot be intended of an opinion con­ceived within three or four years, but of long time; And appendancy cannot be made presently, but by a long tract of time: As an Advow­son in gross cannot be made by an Act appendant, and the Queen her self by her Letters Patents cannot make a Mannor at this day, à multo fortiori a subject cannot, and the Queen cannot by her Letters Patents without an Act of Parliament annex a Mannor to the Dut­chy of Lancaster, which see 1 Ma. Dyer 95. And where it is usual, that the Queen doth grant Lands,Reputation. tenendum de manerio suo de East Greenwich in communi soccagio, if upon the death of such a Grantee without heir, the said Land doth revert unto the Queen in point of Escheat, the said Land shall not be parcel of the said Mannor, for the Land was not parcel of the Mannor in truth, but in reputation: And he cited a case, that the Lord Sturton was seised of the Mannor of Quincamore, and was also seised of the Mannor of Charleton which was holden of the said Mannor of Quincamore; The Lord Sturton was attainted of Felony; and afterwards Queen Mary gave the said Mannor of Quincamore to Sir Walter Mildmay cum omnibus suis juribus & parcellis, it was adjudged that the Mannor of Charleton did pass, for it is now become parcel of the Mannor of Quincamore; and I grant, that things which go with the Land shall pass well enough: As if the Queen grant to three Co­parceners of three Mannors,1 Inst. 122. a 32 [...]. 6 11. the liberty of Warren in all the said three Mannors, they afterwards make partition so as each Coparcener hath a Mannor, and the one of them grants her Mannor, the Grantee shall have Warren:Grants of the King. But if the Queen grant a Leet (ut supra) and the Coparceners make Partition, and each of them hath a Mannor, she shall not have also a Leet, but the Leet which was grant­ted doth remain in common, and there shall not be there, upon such partition, several Leets: And also I grant that in the case of two Coparceners of a Mannor, if to each of them upon partition be al­lotted [Page 27] demeans and services, each of them hath a Mannor, for they were compellable to make partition by the common Law being in by descent, See 26 H. 8. 4. 9 E. 4. 5. contrary of Ioynt-tenants, for they are in by purchase, and were not compellable by the common Law to make partition, and therefore upon partition betwixt them a Rent can­not be reserved for the equality of the partition: And in every Manor a Court is requisite, for a Court Baron is incident to a Manor,Court Baron. but a Court cannot at this day be founded or erected, but it ought to be of long time: And in our Case, no Court hath ever been holden in North-kelsey: And if I be seised of the Manor of B. which extends into C. and B. and I grant my Manor of B. in D. now a Manor passeth, and doth ex­tend into D. and the residue which is in C. shall remain in me in gross, v. 9 E. 4. 17. Catesby; And if I be seised of a Manor which doth consist of services, and of twenty Free-holders, and one hundred Acres of Demesnes, and I grant the services of my twenty Free-holders, and forty or twenty Acres of the said one hundred Acres, a Manor shall pass, although it was not granted by the name of a Manor; but if I grant the services of three, four, or five of my Free-holders, and forty or twenty of the said one hundred Acres, upon such a grant no Manor shall pass: Windham Iustice contrary, We are not here to speak of the creation of a Manor, that is a forraign matter, but we are here to con­sider upon the division, and apportionment of a Manor. They that have argued in this case at the Bar, have stood much upon the words of the Conveyance, manerium suum de North-kelsey, and that Sir Fr. Askew at the time of that assurance, had not any Manor of North-kelsey, or in North-kelsey, but that is not any reason, for if Cestuy que use (mean be­tween the Statute of 1 E. 3. & 27 H. 8.) will make a Feoffment of the Manor which was in use, by these words, manerium suum, the same had been good, and yet it is not manerium suum, but the Manor of the Feof­fees, but it may be said suum, by receiving of the profits according to the trust and confidence reposed in the Feoffees; so in our case, in as much as Sir Fr. Askew had before this grant aswell demesnes as services in North-kelsey, it may collaterally be said a Manor there, and notwith­standing that tempore concessionis (proprie loquendo) no Manor was in North-kelsey, yet now upon operation of the Law, upon this grant a new Ma­nor shall rise, for in divers cases where a thing which was not in esse before, upon a grant may rise; As if I grant unto you out of my Land a Rent de novo; And also a thing which was not in esse before, may upon a grant take upon it a new nature; As if I. seised of a great Wood, grant to you Estovers out of it, they were not before in me but as Woods and Trees, now by this grant they are become Estovers in the Grantee, so as they are in the Grantee in another nature, than they were in me: So in our case, although North-kelsey was not a Ma­nor in Sir Fr. Askew, yet now upon the grant it is a Manor in Bard, 9 E. 4. 17. And as to the matter which hath been objected, because a Court cannot now begin, the same is not any reason, for the Court Baron is incident to the Manor, and also to every part of the Manor, and transitory through the whole Manor, and if Sir Fr. Askew had sold all the demsnes of the Manor in Castord, where the Court Baron for the said Manor had always been held and not else-where, yet such a Court might be holden in any part of the Demeans in any other of the said Towns: The Lord Anderson, to the same purpose, It hath been argued of the other side, that the Manor doth not pass, be­cause the grant is in these words, manerium de North-kelsey, in North-kelsey, I conceive that these words, (de North-kelsey) are void, as matter of sur­plusage, and the grant shall be construed as if the words had been ma­nerium suum in North-kelsey: And a Manor is such a thing, as may be de­termined, divided, and suspended: As if the Lord of a Manor leaseth for years all the Demeans of the Manor, the Manor is suspended du­ring [Page 28] the term for years, as lately it hath been adjudged. And a warran­ty may be divided, as if a Feoffment in Fee be made to two with war­ranty, and the one of them releaseth the warranty: vide L. 5. E. 4. 103. A. seised of a Manor which extendeth in four Towns, B. C. D. and E. and he gives his Manor in B. C. and D. by this gift the Manor and all that is in the said four Towns passeth. And he cited also a Case 21 E. 4. 3. The Lord of a Manor erected a Chapel within his said Manor as a Chapel of Case, &c. and afterwards it is a Parish-Church, now it is become presentable; an Advowson appendant, as the soil upon the which the Church is built is parcel of the Manor. See 32 H. 6. 9. One Manor may be parcel of another Manor, as A. holdeth of B. twenty acres of Land, as of his Manor of C. which Manor B. holdeth of D. as of his Manor of E. B. dieth without Heir, so as his Manor of C. is escheated unto D. now the twenty acres are holden of the Manor of C. as they were before, and the Manor of C. is by the Escheat become parcel of the Manor of E. and by Lease of the Manor of E. it shall pass.Post. 32. And I do not know any difference between the Case of Parce­ners, and the Case of Ioynt-tenants, for now they are both equally compellable to make partition: And he cited the Case of one Estopp. lately adjudged, viz. the Queen was seised of the Rectory of D. which extended into the Counties of Lincoln and York, and the Queen grant­ed her Rectory of D. in Lincoln, these are several grants, and now upon the matter they are become several Rectories. And as to that which hath been objected concerning a Court Baron which ought to belong to this new Manor, and that such a Court cannot now at this day be erected, and therfore here cannot be a Manor; here needs not the erecti­on of any new Court, but forasmuch as the Court Baron before this grant might be by Law holden in any place within the Manor: there­fore every part of the Demeans of the Manor is capable of a Court to be holden there. As where one is seised of a Manor to which an Ad­vowson is appendant, now is the Advowson appendant not only to the said Manor, but to every part of it; for if he alien an acre, parcel of the Manor with the Advowson, the Advowson is now appendant to the said acre: See 43 E. 3. 26. So in the Case at Bar, because this liberty and franchise of a Manor is throughout the whole Manor, and in every part of the Services and Demesnes upon this grant of the Services and Demesnes in North-kelsey, and of his Manor in North-kelsey, a Ma­nor passeth; which Windham also granted and agreed unto. Note at this time there were but three Iudges in this Court: And afterwards Iudgment was given for the Defendant.

XXXIV. Alington and Bales Case. Pasch. 27 Eliz. In the Kings Bench, Rot. 584.

1 Cro. 660. 661. ALington and others, Executors of Sir W. Cordel late Master of the Ross, brought an Action Debt against Bales: The Case was this, One Bream being seised of certain Lands, by Indenture bargain­ed and sold the same to one Platt by these words (give, grant, bargain, sell) and by the said Indenture covenanted with Platt, that the said Platt and his Heirs should quietly enjoy the said Lands without interrupti­on of any person or persons: And afterwards certain controversies ri­sing betwixt them concerning the said Lands,Arbitrament. the said Bream and Platt submitted themselves to the award and arbitrament of Sir W. Cordel, to whom they were bounden severally for the performance of such a­ward, the which Sir W. amongst other things awarded, that the said Platt and his Heirs should enjoy quietly the said Lands, in tam amplo modo & forma, as the said Land is conveyed and assured by the coveyance and assurance aforesaid: And the truth was, that the said Bream at the time [Page 29] of the said Assurance was bounden in a Recognizance of six hundred pounds to one More, 15. Eliz. and afterwards More 16 Eliz. sued a Sci. fac. upon the said Recognizance; and 18 Eliz. the bargain and sale afore­said was made; and afterwards 19 Eliz. More sued forth Excution by Elegit, and the moyety of the said Land assured to Platt was delivered in Execution to More. And if upon the whole matter the Arbitrament was broken was the question. It was argued by Godfrey, that the Plain­tiff ought to be barred; and first,1 Hob. 35. Mor. 175. 3 Len. 43. Post. 93. Post. 179, 279. 1 Inst. 366. a. b. 388. Dy: 42. he conceived that these words in the Indenture (give and grant) did not help the Action, for the Lands pas­sed with a charge, and the general words Dedi & concessi, do not extend to this collateral charge, but to the direct right of the Land only; but if a stranger had put out the bargainee, there upon such general words, an Action would lie, but as the Case is, they do not give any cause of Action, for the Recognizance was a thing in charge at the time of the Assurance: and yet see 31 E 3. Br. Warr. Chartae, 33. A. enfeoffeth B. with warranty, who brings a Warrantia Chartae, and recovers pro loco & tem­pore, and afterwards a stranger doth recover against him a Rent charge out of the said Land, and it was holden, that upon the matter B. should have execution: the special words of the Aribitrament, upon which the Action is brought, are, that the said Platt and his Heirs should en­joy the said Lands in tam amplo modo & forma, as it was assured and con­veyed to the said Platt; ergo, not in more ample manner:1 Cro. 660. 661. Owen Rep. 65. 2 Cro. 571. 1 Roll. 425. and the said Land was conveyed to Platt, chargeable to the said Recognizance, therefore if Platt enjoy it charged, there is no cause of Action: And as to the Covenant in the Indenture, that Platt and his Heirs should en­joy quietly the said Lands without interruption of any person, the same is a Collateral surety; and the words of the Award are, that Platt shall enjoy it in tam amplo modo & forma, as it is conveyed and assured by the assurance aforesaid without interruption, these are not words of assurance, for the assurance doth consist in the legal words of passing the estate: scil. bargain, sale, Dedi, concessi, and in the limitation of the estate, and not in the words of the Convenant: And therefore it hath been adjudged, that if I. be bounden to A. in an Obligation, to assure to him the Mannor of D, &c. if A. tender to me an Indenture of bargain and sale, in which are many Covenants, I am not bound upon the pe­ril of my Bond to seal and deliver it. Also here doth not appear any interruption against the Covenant in the Indenture, for here is not any lawful Execution, for it appeareth here, that More hath sued Execution by Elegit 4 years after the Iudgment in the Scire facias, in which case he shall be put to a new Scire facias, for the Sheriff in this Case ought to have returned, that the Conusor after the Recognizance had enfeoffed di­vers persons, and shewed who, and upon that matter returned, the Conusee should have a Sci. facias against the Feoffees, vide F. N. B. 266. And the Court was clear of opinion against the Plaintiff.

XXXV. Floud and Sir John Perrotts Case. Trin. 27 Eliz. In the Kings Bench.

FLoud recovered against Sir John Perrot, 1 Cro. 63. Post. 264. 3 Len. 240. in an Action upon the Case upon a promise, eighty six pounds, against which Floud and Barlow affirmed a Plaint of Debt in London, and attached the said moeny in the hands of the said Sir John, and had execution according to the custom of London. And now the said Floud sued a Scire facias against the said Sir John, who appeared, and pleaded the said Execution by attach­ment; upon which Floud the Plaintiff did demur in Law: And it was adjudged no plea, for a duty which accrueth by matter of Record cannot be attached by the custom of London. And notwithstanding that the custom of London be layed generally in aliquo debito, and da­mages recovered are quoddam debitum, as it was urged by the Coun­cil [Page 30] of the Defendant: Yet the Law is clear, that Iudgments given in the Courts of the King ought not,Judgments in the Kings Courts not to be defeated by particular cu­stom of places. nor cannot by such particular cus­toms be defeated and avoided, as it was lately adjudged in a Western Case, Damages were recovered, the Sheriff by virtue of a Fieri facias levyed the money, which one to whom the Plaintiff was endebted, did attach by the custom, in the hands of the Sheriff; but it was adjudged the attachment was not good, for the custom of attachment cannot reach upon a thing of so high a nature as a Record is; the same Law of Debt upon a Recognizance and Statute, &c. and it was affirmed by Wray chief Iustice, that upon great deliberation it was agreed, by Bromley Lord Chancellor himself, the Lord Anderson, Mead and Periam Iusti­ces, that where a Merchant, having in an Action recovered certain da­mages, became Bankrupt, upon which issued an Commission upon the Statute of 13 Eliz. of Bankrupts, that such Commissioners could not entermeddle with such damages, to dispose of them to the Creditors, according to the said Statute: But now see the Statute of 1 Jacobi. The Commissioners have power to dispose of such debts, &c.

XXXVI. Sir Walter Hungerfords Case. Trin. 27 Eliz. In the Kings Bench.

Grants of the King.IN a Replevin by Sir Walter Hungerford, the Case was this, the Queen being seised of a great Waste called Ruddesdown in the Parish of Chip­nam, granted to the Mayor and Burgesses of Chipnam, the moyety of a Yard-land in the said Waste, without certainty in what part of the Waste they should have the same, or the special name of the Land, or how it was bounded, and without any certain description of it. And afterwards the Queen granted to the said Sir Walter the said Waste, and afterwards the said Mayor and Burgesses by warrant of Attor­ney under the Common Seal, authorized one A. to enter in the said Waste, and in the behalf of the said Mayor and Burgesses to make election of the said moyety,Election. &c. who did so accordingly. And upon this matter gives in evidence the parties did demur in Law, and the Iury were discharged.12 Co. 86. 87. Dy. 372. b. 281. Noy. 29. And it was holden and resolved by the whole Court, that the grant to the Mayor, &c. was utterly void for the incertainty of the thing granted: And if a common person do make such a grant it is good enough, and there the Grantee may make his choice where, &c. and by such choice executed, the thing shall be reduced into certain­ty: which choice the Grantee cannot have against the Queen, which difference was agreed by the whole Court: And it was further holden, that this grant was not only void against the Queen her self, but also against Sir Walter Hungerford her Patentee. It was further holden by the Court, that if a common person had made such a grant, which ought to be reduced to certainty by Election, and the Corporation to whom the grant was made (ut supra) should not make their election by Attorney, but after that they were resolved upon the Land, they should make a special warrant of Attorney, reciting the grant to them, & in whih part of the said Waste their grant should take effect, East, West, &c. or by buttals, &c. according to which direction the Attorney is to enter, &c.

XXXVII. Watts and Jordens Case. Trin. 27. Eliz. In the Common Pleas.

IN Debt by Watts against Jorden, process continued until the Defen­dant was Out-lawed, and upon the Capias utlagatum he appeared and pleaded to issue, which was found for the Plaintiff, and Iudgment giv­en [Page 31] accordingly. And now came Jourden and cast in a Writ of Error,Error. and assigned for Error, that he appeared upon the Capias utlagatum, and pleaded to issue, the Original being determined, and not revived by Scire facias, upon his Charter of pardon; Anderson Iustice was of opi­nion, that it was not Error, for the Statute of 18 Eliz. had dispen­sed with it, being after verdict; for the words of the Statute are, For want of any Writ Original or Iudicial. Windham Iustice contrary, for the Statute doth not extend, but where the Original is imbeselled, but in this Case it is not imbeselled, but in Law determined, and at last the Writ of Error was allowed:

XXXVIII. Trin. 23 Eliz. In the Common Pleas.

THe Case was, A. seised of Lands by his Will devised,3 Len 119. that his Ex­cutors should sell his Lands, and died, the Executors levy a Fine thereof to one F. taking mony for the same of F. If in title made by the Conusee to the Land by the Fine, It be a good plea against the Fine to say, Quod partes ad finem nihil habuerunt, was the question.Fines levyed. Ander­son conceived that it was: But by Windham and Periam, upon Not-guil­ty, The Conusee might help himself by giving the special matter in evidence, in which Case the Conusee shall be adjudged in; not by the Fine, but by the Devise: As by Windham. A. deviseth,Devise. Co. 1 Inst. 113. a. that his Exe­cutors shall sell a Reversion of certain Lands, of which he dieth seised; they sell the same without deed, and good; for the Vendee is in by the Devise and not by the conveyance of the Executors: See 19 H. 6. 23. And by Periam the Conusee may help himself by pleading, as he who is in by the Feoffment or grant of Cestuy que use by the Statute of 1 R. 3.

XXXIX. Albany and the Bishop of St. Asaphs Case. Trin. 27 Eliz. In the Common Pleas.

ALbany brought a Quare impedit against the Bishop of St. Asaph, 1 Cro. 119. who justified for Lapse: The Plaintiff by Replication said that before the six months expired, he presented to the said Bishop one Bagshaw, Quare impe­dit. a Master of Arts and Preacher allowed, &c. The Defendant by way of Rejoynder said, that the Church upon the presentment to which the Action is brought is a Church with Cure of Souls, and that the Pa­rishioners there are homines Wallici, Wallicam loquentes linguam & non aliam. And that the said Bagshaw could not speak or understand the Welch Language, for which cause he refused him, and gave notice to the Plaintiff of such refusal, and of the cause of it, &c. upon which the Plaintiff did demur in Law. And first it was agreed and resolved by the whole Court, that in the computation of the six months in such Cases, the Reckoning ought not to be according to the Kalender, Ja­nuary, February, &c. but Secundum numerum singulorum dierum, Co. 2 Inst. 361. Co. 6. 61. b. Yel. 100. 2 Cro. 141. Departure. allowing eight and twenty days to every month: Walmesley Serjeant argued for the Plaintiff, and he took exception to the Rejoynder; for in that the Defendant had departed from his Bar; for in the Bar the Defen­dant intitles himself to the presentment by reason of Lapse, and in the Rejoynder he confesseth the presentment of the Plaintff, and pleads his refusal of his Clark, and shewes the cause of it; sc. the want of the Welsh Language, which is a Departure: And he cited divers Cases to the same purpose, 27 H 8. 3. In forfeiture of Marriage, the Defendant pleaded the Feoffment of the Ancestor of the Heir to divers persons, abs (que) hoc, that he died in the homage of the Plaintiff; the Plaintiff by Re­plication said, that the said Feoffment was made to the use of the said Ancestor and his Heirs: The Defendant by Rejoynder saith, that [Page 32] the said Ancestor did declare his Will of the said Lands, the same was holden a Departure, for he might have pleaded the same in Bar, and 21 H. 7. 17, 18. & 37 H 6. 5. in Trespass the Defendant pleaded, that I. S. was seised of the Land where, &c. being Land devisable, and devised the same to him and his Heirs; the Plaintiff by Replication said, that I. S. at the time of the devise was within age, &c. The Defendant by Rejoynder said, that the custom there is, that every one of the age of fifteen years might devise his Lands, &c. the same was holden a depar­ture: But to this Exception the Court took not much regard: But as to the matter in Law, it was argued by Walmesley, that the defect of the Welsh Language assigned by the Defendant in the presence of the Plaintiff is not a sufficient Cause of refusal; for notwithstanding that it be convenient that such a Presentee have the knowledge of such Lan­guage, yet by the Law of the Land, ignorance of such Language, where the party hath more excellent Languages, is not any disability; and therefore we see, that many Bishops in Wales, who have the principal Cure of Souls, are English-men; and the Welsh Language may easily be learned in a short time by converse with Welsh-men: And the Sta­tute of 1 Eliz. which establisheth the Book of Common Prayer, ordain­eth, that the said Book of Common Prayer shall be put in use in all the Parish Churches of Eng. and Wa. without any provision there for the translation of the said Book into the Welsh Language. But afterwards by a private Act it was done, by which it is enacted, That the Bishop of Wales should procure the Epistles and Gospels to be translated, and read in the Welsh Language, which matter our Presentee might do by a Curate well enough: And he conceived, that by divers Statutes, Aliens by the Common Law were capable of Benefices. See the Statute of 7 H 2. Cap. 12. 1 H 5 Cap. 7. 14 H 6. Cap. 6. and before the said last Statute Irish-men were capable of Benefices. Gawdy Serjeant contrary: and he confessed, that at the Common Law the defects aforesaid were not any causes of refusal; but now by reason of a private Act made, 5 Eliz. Entituled, An Act made for the translating of the Bible, and of the Di­vine Service into the Welsh tongue, the same defect is become a good cause of refusal; in which Act the mischief is recited, viz. That the In­habitants of Wales did not understand the Language of England, there­fore it was Enacted, That the Bishops of Wales should procure so many of the Bibles and Books of Common Prayer to be imprinted in the Welsh Language, as there are Parishes and Cathedral Churches in Wales, and so upon this Statute, this imperfection is become a good cause of refusal. And he likened it to the Case of Coparceners and Ioynt­tenants,Ante 28. who now, because that by the Statute of 32 H 8. Ioynt-tenants are equally capable to make partition as Coparceners were by the Common Law; Now Partition betwixt Ioynt-tenants within age is as strong as betwixt Parceners within age. But as to that point it was said by the Lord Anderson, that it is very true, that upon the said Statute the want of the Welsh Language in the Presentee is now become a good cause of refusal; but because the said Act being a private Act hath not been pleaded by the Defendant, we ought not to give our Iudg­ment according to that Act, but according to the Common Law. Ano­ther matter was moved, because here appeareth no sufficient notice given to the Patron after the said Refusal, for the Plaintiff did present the thirtenth of August (the Church voyding the fourteenth of March before) the nine and twentieth of August the six months expired; the fourth of September the Defendant gave notice to the Patron of the refusal, and the fourteenth of September was the Collation; and it was said by the Lord Anderson, that it appeareth here, that there are two and twenty days between the Presentment and the No­tice, which is too large a delay: And the Defendant hath not shewed in his Plea any cause for the justifying or excuse of it [Page 33] and therefore upon his own shewing we adjudge him to be a dis­turber: See 14 H. 7. 22. 15 H. 7. 6. and note by Periam, it was ad­judged in the Case of Mollineux, if the Patron present, and the Ordi­nary doth refuse, he ought to give notice to the person of the Patron thereof, if he be resident within the County, and if not, at the Church it self, which is void.

XL. Mich. 27 & 28 Eliz. At Serjeants Inn.

THis Case was referred by the Lords of Council to the Iustices for their opinions, I.S. by Indenture between the Queen of the one part, and himself of the other part, reciting that where he is indebted to the Queen in eight hundred pounds, to be paid in form following, twenty pounds at every Feast of St. Michael, until the whole sum afore­said be paid, covenanted and granted with the said Queen, to convey unto the Lord Treasurer, and Barons of the Exchequer, and to their Heirs, certain Lands to the uses following, viz. to the use of the said I.S. and his Heirs, until such time as the said I. S. his Heirs Executors or Administrators shall make default in payment of any of the said sums; and after such default, to the use of the said Queen, her Heirs and Successors, until her Heirs and Successors shall have received of the issues and profits thereof such sums of money parcel of the said debt as shall be then behind and upaid, and after the said debt so paid and received, then to the use of the said I.S. and his Heirs for ever. I.S. levy­eth a Fine of the said Land to the said Lord Treasurer and the Ba­rons, to the uses aforesaid; and afterwards being seised accordingly, by deed indented and enrolled bargains and sels the said Land to a stran­ger: default of payment is made, the Queen seizeth, and granteth it over to one and his Heirs, quousque the money be paid, and after the money is paid: And upon conference of the Iudges amongst themselves at Serjeants Inn, they were of opinion, that now I.S. against his Indenture of bargain and sale, should have his Lands again, for at the time of the bargain and sale he had an estate in Fee, determinable upon a de­fault of payment, ut supra, Post. 93. 3 Len. 43. Owen. Rep. 6. 1 Inst. 49. 2 which accrued to him by the first Indenture and the Fine, which estate only passed by the said Indenture of bar­gain and sale, and not the new estate which is accrued to him by the latter limitation after the debt paid, for that was not in esse at the time of the bargain and sale; but if the conveyance by bargain and sale had been by Feoffment or Fine, then it had been otherwise, for by such con­veyance all uses and possibilities had been carried by reason of the for­cible operation of it.

XLI. Taylor and Moores Case. Hill. 28 Eliz. In the Kings Bench.

TAylor brought Debt upon an Obligation against Moore, Debt. Error. who pleaded in Bar, upon which the Plaintiff did demurre, and the Court a­warded the Plea in Bar good, upon which Iudgment the Plaintiff brought a Writ of Error, and assigned Error in this, that the Bar up­on which he had demurred, as insufficient, was adjudged good: Vpon which now in this Writ of Error the Bar was awarded insufficient, and therefore the Iudgment reversed: But the Court was in a doubt what Iudgment shall be given in the Case, viz. whether the Plaintiff shall recover his debt and damages, as if he had recovered in the first Ac­tion, or that he shall be restored to his Action only, &c. And Wray ci­ted the Case in 8 E. 4. 8. and the Case of Attaint 18 E. 4. 9. And at last it was awarded, that the Plaintiff should recover his debt and dama­ges: See to that purpose 33 H 6. 31. H 7. 12, 20. 7. Eliz. Dyer 235.

XLII. Higham and Harewoods Case. Hill. 28. Eliz. In the Kings Bench.

More Rep. 221. 3 Len. 132.IN an Ejectione firmae the Case was, that one Butty was seised of the Land where, &c. and also of a Messuage, with which Messuage the said Land had been usually occupied, time out of mind, &c. and being sei­sed and lying sick, commanded a Scridener to be brought to him, and the said Scrivener being brought to him, he gave him Instructions to make his Will, and amongst other things declared unto him, that his meaning was, that the said Messuage, and all his Lands in Westerfield should be sold by his Executors; and the Scrivener in making of the Will penned the matter in this manner: I will that my house, with all the ap­purtenances, shall be sold by my Executors; Butty died, the Executors sell forty acres of the said Land to the Def. and all this matter was found by special verdict, and it was moved by the Plaintiffs Counsel, that the sale of this Land by the Executors is not warranted by the Will: An­other matter was moved, scil. admitting that the Executors have au­thority by the Will to sell the Land, if the sale of parcel of the Land be good and warrantable: As if I make a Charter of Feoffment of ten acres, and a Letter of Attorney to make livery of them to the Feoffee, if the Attorney makes several liveries of the several acres the same is void: But by Cook the Cases are not like, for in the Case put he hath a special Commission, in which the party to whom, and all the other circumstances are set down certainly, contrary in the Case at the Bar, there the Commission is general, &c. and peradventure the Executors shall never find a Chapman who will contract with them for the whole.More Rep. 222. Co. Inst. 113. a. And afterwards upon conference amongst the Iudges, Clench, Gawdy, and Wray, it was resolved, that by this devise the Lands do pass by the sale of the Executors to the Defendant, which sale also by process is warranted by the Will, for by Wray, these words, with all the appurte­nances are effectual and emphatical words to enforce the devise, and that doth extend to all the Lands especially; because it is found, that the Testator gave to the Scrivener his Instructions accordingly: And afterwards Iudgment was given against the Plaintiff. See 3 Eliz. Plowd. 210. Betwixt Sanders and Freeman, there the Devise is pleaded in this manner, Messuagium cum pertinentiis ad illud spectantibus in perpetuum in villa de Arthingworth.

XLIII. Watkins and Astwicks Case. Trin. 28 Eliz. In the Kings Bench.

1 Cro. 132.IN an Ejectione firmae, it was found by special verdict, that one Maynard was seised, and made a Feoffment in Fee upon condition of pay­ment of mony on the part of the Feoffor by way of Mortgage at a cer­tain day, before which day the said Maynard dyed, his Son and Heir be­ing within age,Tender to re­deem a Mort­gage. afterwards at the day of payment limited by the Mort­gage, a stranger at the instance and request of the Mother of the Heir tendred the money to the Mortgagee in the name of the Heir being within age, who refused it. And it was resolved by the whole Court, that the same is not a sufficient tender to redeem the Land, accord­ing to the Mortgage, for it is found by the Iury, that the Heir at the time of the tender was within age,2 Len. 213. generally, not particularly of six or ten years, &c. then it might well stand with the verdict, that the Heir at such time was of the age of 18 or 19 years, at which age he is by the Law out of the Ward of his Mother, or any other prochein amy, in which [Page 35] Case it is presumed in Law, that he hath discretion to govern his own affairs: and in this Case the Mother is but a stranger, for the Law hath estranged the Mother from the government of the Heir; but if the Iury had found that the Heir at the time of the tender was of tender age, viz. within the age of fourteen years, in which Case by Law he ought to be in Ward, in such Case the tender had been good.

XLIV. Leput and Wroths Case. Trin. 28. Eliz. In the Kings Bench.

A Replevin by Lepur against Wroth, 6 Co. 33. Replevin. 3 Len. 132. and declared upon a tortious taking in Burnham in the County of Essex; the Case upon the pleading was, that Robert Earl of Sussex was seised of the Manor of Burnham in Fee, and leased the same to the King for one and twenty years, and afterwards the said Earl died, by which the said Manor descended to Thomas late Earl of Sussex, and he being seised, 4 and 5 Phil. and Mary it was Enacted by Parliament, That the Lady Frances, Wife of the said Earl, by virtue of the said Act of Parliament should have, hold and enjoy; &c. during the widowhood of the said Frances, for and in consideration of the Ioynture of the said Frances the said Manor: Provided always, and it is further enacted,Construction of Statutes. That it should be lawful for the said Earl, by his writing indented, dimissionem vel dimis­siones facere pro termino 21. annorum vel infra de eodem Manerio pro aliquo redditu annuali, ita quod super omnes & singulos hujusmodi dimissionem & dimissiones anti­quus redditus & consuetus vel eo major & amplior reservaretur, and that every such demise should be of force, and effectual in Law against the said Fran­ces for term of her life, if the said term should so long continue: And further the said Act gave to the said Frances, Distress, Avowry, Cove­nant, &c. against such Lessee, and for the said Lessee against the said Dame; And afterwards the said Thomas, the said former Lease not ex­pired, leased the said Manor to Wroth the Defendant for one and twen­ty years, to begin at the Feast of Saint Michael next following (and note the Lease was made the third of April before) rendring three hundred and forty pounds per annum, which was redditus amplior antiquo & usuali. Popham Attorney general argued, that the said Lease did not bind the said Lady Frances, and that for two Causes: 1. because it is to begin at a day to come: 2. because it was made, a former Lease being in esse; and he argued much upon construction of Statutes to be made not ac­cording to the letter, but according to the meaning of them: And he ci­ted a Case upon the Statute of 2 H 5. 3. by which it is Enacted, that in no Action in which the damages do amount to forty marks, any per­son should be admitted to pass in trayl of it, who had not Lands or Tenements of the clear yearly value of forty shillings, yet the said Statute shall not be by construction extended, where in an Action be­tween an English-man and an Alien, the Alien prayeth medietatem lin­guae; and yet the Statute is general. So in our Case, although this private Act doth not seem to provide expresly but for two things: 1.Leases. the number of the years, 21, & non ultra: 2. antiquus redditus vel eo amplior, yet in reason and good understanding we ought to think, that the intent of the Act was, that the said Manor should now come to the said Lady Fran­ces surcharged with Leases in Reversion, or to begin at a day to come, for if by this Act the said Earl might make a Lease to begin three months after, by the same reason he might make a Lease to begin twenty years after, and also to begin after his death. It hath been objected, that the Lord Treasurer had a Commission to make Lea­ses of the Queens Lands, and that by virtue thereof he made Lea­ses in Reversion: I know the contrary to that, for every such Lease is allowed by a Bill assigned, and not by the ordinary Commission afore­said, [Page 36] the words of our Act are, Dimissiones facere pro termino 21. annorum, that shall be meant to begin presently: As if I lease to you my Lands for one and twenty years, it shall be intended to begin presently; and he cited the Case betwixt Fox and Collier upon the Statute of 1 Eliz. cencerning Leases made by Bishops: That four years of a former Lease being in being, the Bishop leased for one and twenty years, the same was a good lease, notwithstanding the former lease, for the lease be­gan presently betwixt the parties. And it hath been adjudged, that a lease for years by a Bishop, to begin at a day to come, is utterly void. And he cited the Case of the late Marquess of Northampton, who by such an Act of Parliament as ours was enabled to make leases of the Lands of his Wife for one and twenty years, and of the said Lands an ancient lease was made before the said Act, which was in esse, and before the expiration thereof he made a lease by virtue of the said Act to commence after the expiration of the former lease, and that lease was allowed to be a good lease warranted by the said Statute, because that the first lease, which was in esse, was not made by force of the said Act, but if the said former lease had been made by virtue of the said Statute, the second lease had been utterly void.

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

Copy-hold. Surrender by Attorney not good. A Copy-holder of the Manor of the Earl of Arrundel did surrender his customary Lands to the use of his last Will, and thereby de­vised the Lands to his youngest Son and his Heirs, and died, the youngest Son being in prison makes a Letter of Attorney to one to be admitted to the Land in the Lords Court in his room, and also after admittance to surrender the same to the use of B. and his Heirs, to whom he had sold it for the payment of his debts: And Wray was of opinion, that it was a good surrender by Attorney, but Gawdy and Clench contrary:3 Cro. 218. 9 Co. 75. and by Gawdy; If he who ought to surrender cannot come in Court to surrender in person, the Lord of the Manor may ap­point a special Steward to go to the prison and take the surrender, &c. and by Clench; Lessee for years cannot surrender by Attorney, but he may make a deed purporting a surrender, and a letter of Attorney to another to deliver it.

XLVI. Troublefield and Troublefields Case. Trin. 28 Eliz. In the Kings Bench.

Dy. 337. b. Co. 1 Inst. 15. 2. b. 52. 245. b. 252. 6. Post. 51. Entry.THe Case was, that a Copy-holder did surrender to the use of his Will and thereby devised the Land to his Wife for life, the re­mainder over to his son in tail, and died, the Wife entred, and died, a stranger did intrude upon the Lands, and thereof made three several Feoffments to three several persons, he in the Remainder entred up­on one of the said three Feoffees in the name of all the Lands so devi­sed, and made a lease of the whole Land: And by Clench and Wray it was a good Entry for the whole, and by consequence, a good lease of the whole, Gawdy contrary: Note, all the Lands were in one County: See 16 Eliz. Dyer 337. 9 H. 7. 25.

XLVII. Parmort and Griffina's Case. Trin. 28 Eliz. In the Kings Bench.

IN Debt upon an Obligation by Parmort against Griffina a Merchant-stranger, the Defendant pleaded,Debt. that the Obligation was made upon condition for the performance of certain Covenants contained within certain Indentures, and shewed what, &c. and alledged further, that in the said Indenture there is a proviso, that if aliqua lis, vel contro­versia oriatur imposterum, by reason of any clause, article, or other agree­ment in the said Indenture contained, that then, before any sute there­upon attempted the parties shall choose four indifferent persons for the ending thereof, which being done, the Indenture and Obligation shall be void: And in fact saith, that Lis & controversia, upon which the Action is brought, groweth upon the said Indenture, upon which there was a demurrer in Law. And because the Defendant hath not shewed spe­cially upon what controversie or strife, and upon what article certain: The Court was clear of opinion, that the Bat was not good: And also the Court was of opinion,Proviso taken strictly. that the said Proviso did not extend to sub­ject and submit the breach of every Covenant or Article within the said Indenture to the Arbitrament of the said four persons, but only where strife and controversie doth arise upon the construction of any Covenant, &c. within the said Indenture; so as the Defendant ought to have shew­ed such matter which fell within the Arbitrament, by the meaning of the said Indenture; and Iudgment was given against the Defendant.

XLVIII. Partridge and Partridges Case. Mich. 28, & 29. Eliz. In the Common Pleas.

IN Dower by Partridge against Partridge, the Case was,Dower. that Land was given to the Father for life, the reversion to his Son and Heir for life, the remainder to the right Heirs of the body of the Father: The Father and Son joyn in a Feoffment to the Vncle in Fee, scil. to the Brother of the Father. The Vncle takes a Wife, the Father dieth, the Son be­ing his Heir in tail, the Vncle dieth without issue, so as the Land des­cendeth to the Son, as Heir to his Vncle, against whom the Wife of the Vncle brought Dower: It was moved, if the Son being Herein can to his Father, and Heir also to his Vncle, for the Fee descended, be now remitted? for then no Dower accrueth to the Wife of the Vn­cle, for the estate of which she demands Dower is gone: but if the li­very in which the Son joyned with his Father be the livery of the Son,Remitt [...] the same lies in his way in the impediment and preventing of the Remitter, so as during his life he shall be adjudged seised of the Lands in Feesimple by descent from his Vncle: Then Dower lyeth, for the same estate is inherited, of which the Wife demandeth her Dower: And the Court doubted, if it were the livery of the Son or not. And note, that the Feoffment was without deed. See Dyer 16 Eliz. 339.

XLIX. The Queen against the Lord Vaux and others. Mich. 28 & 29 Eliz. In the Exchequer.

A Bill of Intrusion was brought for the Queen against the Lord Vaux, Rich. Vaux, & Hen. Vaux, Intrusion. supposing to have intruded into the Re­ctory & Parsonage of Ethelborough in the County of Northampton, & shew­ed [Page 48] that in the time of Hen. the fourth, the Colledge of Saint Peter of Ethelborough was founded at Westminster, in the County of Midd. by the name of Decani & capituli; and shewed further, that the Rectory of Ethel­borough, was appropriated to the said Colledge, and that afterwards by the Statute of 1 E. 6. the said Colledge was dissolved, and the said Rectory, amongst other possessions of the said Colledge, came to the hands of the King, and that the Defendants, 1. Eliz. intruded into the said Rectory, and took one thousand Sheep, one thousand Calves, and one thousand Loads of Corn, bona & catalla dictae Dominae Reginae proveni­entia ex decimis rectoriae praedict. apud Westm. predict. The Defendants plead­ed, &c. That the said Colledge of Ethelborough was founded in Ethelbo­rough, Foundation. &c. per nomen Decani, canonicorum, & fratrum, &c. who leased the said Rectory so appropriated to one Clark for forty six years, in Anno 30 H. 8. who assigned the same to the Defendants, by force of which they justi­fied the taking at Ethelborough, absque hoc, that the said Colledge of Saint Peter in Ethelborough, was founded, per nomen Decani & capituli Ecclesiae Sancti Petri de Ethelborough, at Westminster aforesaid, & absque hoc, that they took the said Sheep, &c. at Westminster, &c. Vpon which the Queens Attorny did demur in Law. Manwood chief Baron argued; that Iudgment ought to be given for the Queen: Exception hath been taken to the Information, because mention is made in it of a Colledge, and it is not shewed what person was the Founder: And also an appro­priation is alleadged of the Rectory aforesaid to the said Colledge, and the Appropriation is not shewed certain, who was Patron, Ordinary, &c. as to that he argued that the alledging of the Appropriation and foundation, is but matter of surplusage, and therefore the insufficiency of alledging the same shall not prejudice the Queen, for it had been sufficient to say, That the said Colledge of St. Peter, was seised of the Rectory aforesaid, and then to shew the Statute of Chauntries, 1 E. 6. and the same is a good title for the Queen, The possession of the Col­ledge, and the Dissolution of it by the Statute: For this Bill of in­trusion is but in the Nature of a possessory action,Colledge in Reputation. as an action of Tres­pass, in which case it is sufficient to make title to the possession only, without relying upon the right; but as to the curious and exact plead­ing of an appropriation, or a foundation, it needs not in this case; for admit that the Colledge were not well and duly founded, yet such pleading is sufficient, for a Colledge in Reputation is within the Sta­tute of 1 E. 6. and where the party claims by or under such Founda­tion, there the Foundation ought to be certainly shewed, not precisely but conveniently,General pleading. not as we plead a common Recovery, but as we plead the creation of a Bishop, scil. debito modo praefectus, without shewing the particulars of the creation, so if an Abbot will plead in discharge of his House of a Corody, he ought to shew the Foundation, and convenient certainty, which see L. 5. E. 4. 118. Robert Milam founded the Abby of Leicester, and conveyed the right of Patronage and foundership to the King by Attainder, and the same was good pleading, without shewing the parti­culars of the Foundation specially, so 3 H. 7. 6. in the Case of the Priory of Norwich, the pleading is, quod Prioratus de Norwich est de fundatione Epis­coporum Norwich, for in such case, refert quis sit Fundor, so the King be not Founder; but in our case, non refert quis fit Fundor, for whosoever be Foun­der, whether the King, or a Subject, all is one, the Statute in both Cases gives the possessions to the King: And as to the case of Appro­priation, the pleading thereof is well, if it be conveniently shewed, in case where the party who shews it claimes by such Appropri­ation, as 6 H. 7. 14. 11. H. 7. 8. Concurrentibus his quae de jure, &c. with­out shewing the particulars of the Appropriation. Now in our case, the Queen is meerly a stranger to this Appropriation, and she doth not claim by it, but the possession of the Colledge is the title of the Queen, by the Statute of 1. E. 6. and therefore it sufficeth for the Queen to shew that the Colledge was seised, &c. [Page 39] without making mention of the manner of the Appropriation: And as to the traverse of the County, he conceived, that the County, is not traversable in this case, for when the Tithes are severed from the nine parts, they are presently vested in the party who hath right,Traverse. and they are things transitory, and also the taking of them, for the party may take them in any place as well as in his own Parish, scil. as well at Westminster, where the Queen supposeth the taking, as at Ethelbo­rough where the Defendant doth justify, &c. and in such cases the place where is not traversable. See [...] H. 6. 62, 63. by Babbington, 35 H. 6. 5. In Trespass of Goods taken in the Parish of Saint Clements, in the County of Midd. the Defendant did justify by buying in open Market in the County of Essex, there needs no traverse, for the Defendant hath made title by an open Market, 34 H. 6. 15, 16. In Trespass of Bat­tery at D. in the County of Essex, the Defendant pleaded, that the Plain­tiff made an assault upon him at B. in the County of Kent, and the Defendant fled, and the Plaintiff pursued him continually unto D. a­foresaid, at which place the Defendant did defend himself, and so the hurt which the Plaintiff had was of his own assault, and demanded Iudgment if Action, the same is a good Plea without traversing of the County, for a Battery may be continued from one County to an­other. And it was observed by Manwood in citing of that case, that al­though, prima facie mirum videri potest that a Battery may be continued from Essex into Kent, because the River of Thames is betwixt them, and yet, re intellecta, it is plain, for one parcel of Land containing thirty Acres of Lands of the Coasts of Essex is within the County of Kent, See also 34. H. 6. 5. by Prisot, In Trespass of Goods taken at Coventry, the Def. doth justify the taking because the Plaintiff gave the said Goods to the Defendant at London, by force of which he took them at London, absque hoc, that he took them at Coventry, and that traverse not holden good, for the Defendant by such a gift might justify the taking of the Goods in any place as well as in the place where the gift was made; but if in such case the Defendant had pleaded, that the Plaintiff de­livered the said goods to him at London to deliver them over to A. by force of which he took them at London, and delivered them over accord­ingly, in such Cases the Defendant may well traverse the place suppos­ed by the Declaration, for by his Plea he hath confessed an immediate delivery of the said goods to him by the Plaintiff; and the delivery and the taking all at one time and at one place, and it had not been a good plea for the Defendant to say, that the Plaintiff delivered to him the said goods at London, by force of which he took them at Coventry, for the possession is confessed by the first delivery of the goods at London; and the supposal of the Plaintiff of a taking in Coventry, and the justifica­tion of the Defendant of a taking by reason of a delivery at London, cannot stand together. But if the Defendant plead, that the Plaintiff gave to him the goods in London, by force of which he took them there, there he may take traverse to the place supposed by the Declaration, for by the gift it is lawful to the Defendant to take the goods in any place. So see 19 H. 6. 35. In false Imprisonment supposed in the Coun­ty of W. the Defendant doth justify as Sheriff of the County of B. by force of a Writ to him directed to attach the Plaintiff, and so he attach­ed him and imprisoned him at C. in the County of B. there the Defen­dant traversed the County supposed by the Declaration, for otherwise he doth not meet with the Plaintiff, and the authority of the Defendant doth not extend to the County supposed by the Declaration. See also to the same purpose 22 E. 4. 39. by Hussy, where the difference is taken when justification is by reason of a Warrant to take goods in any place whatsoever, and where in a place certain, as to the traverse of the Foundation, abs (que) hoc, quod praedict. Collegium fundatum fuit per nomen Decani, & Capituli Ecclesiae colleglatae Sancti Petri de Ethelborough apud Westm. he hath [Page 40] here traversed that which was not alledged, for the placing of the last words of the traverse, scil. apud Westminst. in the end of the traverse seems by common construction to be intended thereby, that there is no such Colledge at Westm. and not that the Colledge was not found­ed at Westm. for then the traverse should be, absque hoc, quod collegium prae­dictum fundatum fuit at Westminster, per nomen, &c. But the most proper tra­verse, that the Defendant could have taken in this case had been, ab­sque hoc, quod Decanus & Capitulum Ecclesiae collegiat. de Ethelborough was seised; for the Corporation mentioned in the Bill, and that which is mentioned in the Bar, are not all one, but differ in this manner, scil. in the Bill the Dean and Chapter, &c. in the Bar the Dean, Cannons, and Bre­theren, and perhaps there are two such Corporations, and then both cannot be seised, and therefore upon the seisin of one of them, the tra­verse shall be taken: And afterward Iudgment was given for the Queen.

L. The Queen, against the Bishop of London, and Scot. Mich. 28 & 29. Eliz. In the Common Pleas.

Quare Impedit. 3 Len. 175.THe Queen brought a Quare impedit against the Bishop of London, and Scot, and the Case was, that A. seised of an Advowson in gross, holden of the Queen in chief, aliened the same by Fine without Licence; the Church became void, the Conusee presented; The Queen without office found, brought a Quare impedit, the question was, if the Queen with­out office found,Office trove. should present; And it was argued by the whole Court, that if the Alienation had been by Deed only, that there the Queen without office found should not have had the presentment, for upon such an Alienation by matter in fact, without Licence no Scire facias should issue without office found of the Alienation,Scire facias. but upon an Alienation without Licence by matter of Record, a Scire facias lyeth before office, which was granted by the whole Court: And in the last case the Queen shall have the mean profits from the time of the Scire facias returned, but in the first case from the time of the office found, See for that Stamford Prerogative, fol. penult. 8 E. 4. 4. It was also moved, if the Queen in­tituled to the presentment as above, pardoneth to the Conusee all Ali­enations without Licence, and Intrusions, if the estate of the Incum­bent be thereby confirmed, but the Court would not argue that point; but it was adjorned until another day.

LI. Braybrooks Case. Mich. 28 & 29. Eliz. In the Common Pleas.

Pines levyed.THe Case of one Braybrook was moved, which was, Land was given to A. for life, the Remainder to B. for life, the Remainder to the said Braybrook in Fee: B. being in possession levyed a Fine to a stranger, sur conusans de droit come ceo &c. A. dyed, if now Braybrook might enter for the forfeiture was the question: And it was agreed by the whole Court, that by that Fine the Remainder in Fee is not touched, or dis­continued,Co. 1 Inst. 251, b. 252. 2 Forfeiture. 9 Co. 104. Post. 211, 212. 1 Cro. 219. 220. but because B. had done as much as in him lay for the dis­posing of Fee-simple by the Fine, and hath taken that upon him, the same amounts to a forfeiture: And it was also agreed by Anderson and Periam, that if Tenant for life in possession leveyeth a Fine, &c. if the Lessor doth not enter within five years after, he shall be bounden: Wind­ham contrary, for by him it is in the election of the Lessor to re-enter immediatly for the forfeiture, or to expect the death of the Lessee.

LII. Willshalge and Davidges Case. Mich. 28, & 29 Eliz. In the Exchequer Chamber.

WIllshalge brought Error in the Exchequer Chamber,En [...]r. upon the Statute of 27 Eliz. Cap. 8. against Davidge, upon a Iudgment given in the [...]ings Bench, Hill. 28. Eliz. and assigned for Error, that where Davidge had heretofore brought Debt against the now Plaintiff, and declared upon diverse Contracts, scil. that he had sold to Willshalge such Merchandizes for so many Portugues, and such Merchandizes for so many Ducats, which in toto amounted to seven hundred pounds Sterling, which sum he demanded, scil. in Sterling many,2 Cro. 88. 3 Cro. 536. Yel. 80. 135. 136. and not in Ducats and Portagues, according to the Contract; And upon the Declaration the said Willshalge had demurred in Law, and the Court gave Iudgment for the Plaintiff, for it is in his election to demand his debt in which of those Coyns he pleased, either in the proper Coyn of the Contract, or of Sterling, scil. in currant mony. And afterwards the said Iudgment was affirmed.

LIII. Henly and Broads Case. Mich. 28, & 29 Eliz. In the Exchequer.

HEnly brought Trespass against Broad in the Kings Bench,3 Len. 77: Trespass. and declared, that the said Defendant simul cum quodam I. S. clausum suum fregit, &c. The Defendant pleaded to Issue, and it was found for the Plaintiff, and it was objected in stay of Iudgment, that the count was not good, for it appeareth therein, upon the shewing of the Plaintiff himself, that the Action ought to be brought against another also, not named in the Writ,Counts. and because the same appears of the Plaintiffs own shewing, the Declaration was not good, and notwithstanding that said Exception, Iudgment was given for the Plaintiff. Vpon which Broad brought a Writ of Error, and assigned the same matter for Error; And there the Case of 2 H. 7. 16. 17. was cited,Error. where a difference is taken, where the Plaintiff declares, that the Defendant with one B. did the Trespass, him naming in certain, and where the Declaration is, that the Defendant, cum quibusdam alijs ignotis, &c. See 8. H. 5. 5. And at length all the Iustices of the common Pleas, and Ba­rons of the Exchequer were clear of opinion, that by the common Law the Declaration was not good, for the reason, and upon the dif­ference aforesaid: but if in Trespass against one, who pleads that the Trespass was done by himself and one B. to whom the Plaintiff hath released, and the Plaintiff traverse the Release, in that case, for as much as the matter doth not appear upon the Plaintiffs own shew­ing, but comes in on the part of the Defendant, and not denied by him, the Declaration is good enough: And it was further agreed by them all, that now this defect after Verdict is helped by the Statute of 18 Eliz. for it doth not concern substance but only form: And af­terwards the first Iudgment was affirmed.

LIV. Wood and Fosters Case. Mich. 28, & 29 Eliz. In the Common Pleas.

Replevin. Owen Rep. 139. Godbolt 113. WOod brought a Replevin against Humfrey Foster and others; and made his plaint of the taking of one thousand Cattle; Foster pleaded, Non cepit, and the others, that the property was in another; upon which matters they were at issue. And as unto the first issue, the Case upon the Evidence was: that the late Lord Windsore was possessed of certain Sheep, and by his Will devised them unto Eliz. his Daughter for her advancement in marriage, and of his Will made his Wife his Executrix, and died, his Wife took to her Husband one Puttenham, who being thus possessed leased the said Sheep with a Farm for eleven years by Indenture, upon which it was agreed between the said parties, that the Lessee should keep so much of the Rent reserved upon the said Lease, to buy therewith so many Cattle over, so as the whole stock of the said Sheep upon the said Farm should amount to the number of one thousand Cattle; and the Lessee also covenanted to yeild and render to the said Puttenham at the end of the said Term one thousand Sheep between two years shorne, and four years shorne. Afterwards Puttenham by his deed gave unto one A. who had married the said Eliz. the said one thousand Cattle, to have them after the said Term; the Term expired; Puttenham sold and granted them unto Wood, who brought them away with him. And the said A. pretending that the said Sheep passed to him by the said grant of Puttenham during the said Term, seised them, and the same was noctanter as they were driven in the high-way, unde magna contentio orta suit between the said parties, the one charging the other with felony, whereupon the Constable of the Town where, &c. supposing the said matter would grow to an Outrage, seised the said Cattle as felons goods, and afterwards went to the house of the said Foster, which was near unto the high-way, and asked his advise upon the matter, but he would not meddle therewith: Afterwards one Perkins, who had bought the said Cattle of the said A. came to Foster, and shewed to him, that the high-ways there were not sufficient for pasturage of the said Cattle until the said controversy be determined, and prayed that the Cattle be delivered to him the said Perkins to keep in the mean time; to whom Foster answered, that if the said Perkins would find sufficient sure­ties to deliver back the Cattle to him who had right, that he would be content the said Perkins should take them; whereupon the said Perkins was bound to Foster to that purpose, and took away with him the said Cattle; And it was also given in Evidence, that the servants of the said Foster had seised the Cattle for the use of their Master. And by the clear opinion of the Court upon the whole matter shewed, Foster non cepit, and accord­ing to such direction of the Court the Iury found, that Foster non cepit; and as to the matter of property, the Court was clear of opinion, that the grant made by Puttenham of the said Cattle, during the Term, was utterly void, for Puttenham during the same Term had not in the said Cattle either a general or a special property, nor also after the Term; but if after the Term expired the Lessee will not according to his co­venant deliver to Puttenham one thousand Sheep, then Puttenham is put to his Action of covenant, for here the Lessee was bound to deliver to Put­tenham at the end of the Term, not the same Cattle which were leased, but such a number of Sheep, and the same ought to be between two years shorne, and four years shorne, which could not be the Sheep de­mised, for they did exceed such degree before the end of the said term, & then the grant of Puttenham during the Term is meerly void: And then when after the Term, the Lessee, according to the covenant, delivered to Wood one thousand Sheep, he might well sell them to the Plaintiff; [Page 43] And such was the opinion of the whole Court; and it was said by Iustice Windham, that if I let certain Sheep to one for two years,Property. now upon that Lease somewhat remains in me, but that cannot be properly said a Property, but rather the possibility of a Property which cannot be granted over. See 11 H. 4. 177. 178. 22 E. 4. 10. 11. In the same plea it was also holden, that in a Replevin where the plaint is of one thousand Beasts, and the Defendant justifies by reason of property, upon which the parties are at issue; Now upon the Evidence the Defendant may surmise a lesser number of Beasts, and drive the Plaintiff to prove a greater number than that which the Defendant hath confessed upon the Evidence; Notwithstanding that the number set down in the plaint be by the plea of the Defendant quodam modo admitted, and the lesser number surmised, and the contrary not proved shall go in mitigation of the damages, and the Iury shall conform their verdict in the right of damages, according to the proof of the number, notwithstanding that the number set forth in the plaint be not by the Plea denied by the De­fendant, and so it was put in ure in this Case: for the Plaint was of the taking of one thousand Cattle, but the proof extended but to eight hundred sixty five. Note also in the same Plea it was holden, that where­as one Chock was returned upon several Iuries in two several Courts at Westminster, and both the Iuries are adjourned to one day; now in which of the said two Courts the said Chock was sworn, he shall be dis­charged of his attendance at the other Court the same day.

LV. Carters Case. Mich. 28, & 29 Eliz. In the Common Pleas.

CArter brought an Action upon the Case against I.S. and declared,Assumpsit. that A. was possessed of certain Lands for years, the Inheritance there­of being in the Wife of the Plaintiff, upon which Lease a Rent was reserved: The Defendant, in consideration that the Plaintiff would procure the said A. to assign the said Lease to the Defendant promised to pay the said Rent to the Plaintiff for all the residue of the Term: It was objected that upon this matter the Action doth not lie, because that the Plaintiff hath a higher remedy, scil. an Action of Debt or Distress; but the opinion of the whole Court was that the Action did lie, for here upon the promise an Action is given to the Husband alone in his own right, whereas the Rent is due to the Husband in the right of his Wife in its nature, and the Rent is also to be paid for the Land. But upon this Assumpsit it is payable to the person of the Husband. And afterwards Iudgment was given for the Plaintiff.

LVI. Kimpton, and Bellamyes Case. Mich. 28, & 29 Eliz. In the Common Pleas.

GEorge Kimpton brought a Replevin against Wood and Bellamy, Replevin. who make Conusance as Baylies to George Burgain for Damage Fea­sance. The Plaintiff in Bar of the Conusance, sheweth; That he himself, and all those whose estate he hath in one hundred and forty Acres of Land time out of mind, &c. have had common for all manner of Cattle in six Acres of Lands, whereof the place where, &c. is parcel, and so put in his Cattle, &c. against which, the Defendants say that the Plain­tiff, &c. had common in forty Acres of Land, whereof the said six A­cres are parcel, all lying in Communi campo, and that the Plaintiff, a long time before the taking, had purchased two Acres parcel of the said forty Acres, &c. upon which there was a demurrer in Law; [Page 44] It was argued by Serjeant Shuttleworth, that the Replication to the Bar to the avowry is not good, for in the Bar to the Avowry, the Plaintiff hath shewed, that he hath common in six Acres, and the same shall be in­tended common in six acres only, for common in forty acres cannot be the common in six acres; as 35 H. 6. 38. In Debt for Rent reserved upon a Lease for years, the Plaintiff declared that he leased to the De­fendant ten acres of Land, rendring the Rent in demand, the Defen­dant pleaded, that the Plaintiff leased to him the said ten acres, and also such a Rectory, rendring the same Rent, the same is no plea with­out traverse, absque hoc, that he leased the ten acres only: See Dyer 29 H. 8. 32. And the whole Court was clear of opinion, that for want of such traverse,Traverse. the plea is not good; for by Periam the Common suppo­sed in the bar to the Conusans out of the six acres, cannot be intended the Common supposed in the Replication, scil. out of the forty acres. And by him if in Trespass the Defendant justifie by reason of Common in six acres of Land, upon which the parties are at issue; and the De­fendant in Evidence shews, that he hath common in forty acres, where­of the said six acres are parcel, the same doth not maintain his title, but the issue shall be found against him:Post. 80, 81. But by the Lord Anderson, because that this Demurrer is general, the other party shall not take advan­tage of that defect of pleading, for the want of the Traverse, and that by reason of the Statute of 27 Eliz. For Traverse is but matter of form, and the want of the same shall not prejudice the other party in point of Iudgment, but the Iudges ought to judge upon the substance, and not upon the manner and form of the pleading: And as to the matter of the Common,Extinguish­ment. the Court was clear of opinion, that by the purchase of the said two acres, the whole Common was gone.

LVII. Knights Case. Mich. 28, & 29 Eliz. In the Common Pleas.

KNight brought Debt against three Executors, and now surmised by his Counsel, that one of the Executors is dead, pendant the Writ;Debt. and prayed the opinion of the Court, if the Writ should there­by abate or not; for by some it is not like where a Writ is brought a­gainst two Executors,Abatement of Writ. for there if any of them dieth, pendant the Writ, it shall abate, for now the plural number is gone, for there is but one Executor, but in our Case the plural number continues: But notwith­standing that, the Court was clear of opinion, that the Writ should a­bate: Wherefore the Plaintiff seeing the opinion of the Court, prayed that upon his surmise aforesaid, he might have a new Writ by Iour­neys Accounts, which was granted to him.

The Queen and Middletons Case. Mich. 28, & 29 Eliz. In the Common Pleas.

Quare Imped.THe Queen brought a Quare Impedit against Middleton, and counted, that W. Lord Say was seised of the Manor of Bedington in the Coun­ty of Hertford, to which Manor the advowson of the Church was appendant, & ad Ecclesiam praedict. praesentavit Coo Clericum suum, and afterwards died seised, having issue two Daughters, Mary marri­ed to the Earl of Essex and Ann to the Lord Mountjoy, who make partition, and the said Manor of Bedington, inter alia, was allotted to the said Mary for her part; and afterwards the said Earl and Mary died, having issue Ann, who took to Husband the Marquess of Northampton, and afterwards 33 H. 8. a Fine was levyed of the said Manor inter &c. Querent. and the said Marquess and Ann Defor­ceants, [Page 45] by which Fine the said Manor was granted and rendred to the said Marquess for term of his life, the remainder to the said Ann his Wife in tail, the remainder over to Hen. the eighth in Fee; the Mar­quess is attainted of High Treason, by which the King seised, and af­terwards Ann died without issue, after which in the seisin of the Queen that now is the Church voided, by which it belonged to the Queen to present; The Defendant did confess the seisin of the Lord Say, and the whole matter contained in the Count until the Attainder; and pleaded further, that after the said Attainder Queen Mary leased the said Manor with the advowson to Rochester and Walgrave for forty years, if the said Marquess should so long live, who were possessed accordingly, and in their possession the Church became void, to which Avoidance one Twiniko did present the Defendant, who upon his presentment was instituted and inducted: Vpon which Plea the Queens Serjeant did demur in Law. It was argued by Serjeant Shuttleworth for the Queen, That the counter-pleading of the title of the Queen by the Incumbent, without shewing title in his own Patron could not be good, nothwithstanding the Sta­tute of 25 E. 3. Cap. 7. before which Statute, the Incumbent could not plead any matter which went to the right of the Patronage, but only in dis­charge or excuse of the disturbance, and therefore we ought to observe the words of the said Statute, sc. the possessor shall be received to coun­ter-plead the Kings title, and to have his Answer, and to defend his Right upon the matter, although he claim nothing in the Patronage; upon all which words taken together it appeareth, that the Incumbent ought not only to counter-plead the title of the King, but also to shew and defend his own right, and that hath not the Defendant done here; For Twiniko, of whose presentment he is in the Church, doth not claim under the lease made by Queen Mary to Rochester and Walgrave, but during their said Lease and their possession of it, by usurpation pre­sented the Defendant, 46 E. 3. 13. by Finchden, The King brought a Scire fac. upon a Recovery in a Quare Impedit, the Defendant being Incumbent pleaded, that after the said Iudgment the King had presented to the said Church I.S. his Clerk, who was admitted accordingly; and excep­tion was taken because the Defendant did not shew a title in himself to maintain his possession, but it was not allowed; for a difference is taken betwixt a Plea in a Quare Impedit, and a Plea in a Scire facias, Where in pleading the party must make title to himself. for in a Scire facias it is sufficient to extort the Plaintiff of execution without any ti­tle, contrary in a Quare impedit: And it is a general Rule, that in all Ca­ses where an Office is to be traversed, none shall be received to tra­verse the title of the King, without making a title to himself, which see 38 E. 3. 18. So in the Case of the Lady Wingfield, 3 H. 7. 14. and Stamford 63, 64. And it is true in Actions real it is sufficient to traverse the title of the Demandant, without making title to the Tenant himself: As in a Formedon, Ne dona pas; But in Actions personal it is otherwise, as 2 H. 4, 14. In Ravishment of Ward, it is not sufficient to traverse the title of the Plaintiff, but the Defendant ought also to make title to himself. Fenner Serjeant contrary: who took exception to the Writ,2 Len. 5 [...]. because it is brought against the Incumbent only without naming the Patron or Ordinary: For here the Defendant hath pleaded, that he is Parson impersonee of the Church aforesaid of the presentment of the said Twiniko, and that he is admitted, instituted and inducted, and hath continued in his Church so many days and years, in which Case the Writ ought to have been brought as well against the Patron and Or­dinary, as against him the Incumbent: But in some Cases it is suf­ficient against the Incumbent only, as upon a Collation by Lapse, 9 H. 6. 32. by Babbington: So where the Defendant is disturber without any presentment, 7 H. 4. 93. so where the Defendant was deprived, and kept himself in 4 E. 4. 18. So where the Pope makes Pro­vision, 11 H. 4. Quare Impedit 120. So a Scire facias upon a Reco­very [Page 46] in a Quare Imped. shall be brought against the Incumbent only 1 H. 5. 8. for by the Iudgment in the Quare impedit, the right of the Patron­age is bound; and the Scire facias is only for the possession, which con­cerns the Defendant only, and no other. And to prove that by the Com­mon Law, a Quare Impedit lay not (but upon such special matter) against the Incumbent alone, it is clear upon the said Statute of 25 E. 3. For before the said Statute the Incumbent could not plead any matter which did trench to the right of the Patronage, and therefore we ought not to presume that the common Law was so unreasonable to give an Action against a singular person, who could not by the Law shew and defend his own right, nor traverse the right of the other party: And as to the plea here, he conceived that the same plea which the Patron might have now after the Statute of 25 E. 3. the Incumbent shall have; but he who is only a disturber not in by presentment, &c. he shall not plead any matter but in discharge or excuse of the disturbance, 47 E. 3. 8. The King in a Quare Impedit counted, That King H. was seised, and presented one A. King H. died, and the Advowson descended to King E. 3. A. died, the now King presented B. and now B. is dead, so it belongs to the King to present; that the Defendant being Incumbent traversed the institution and induction of B. without making title to himself. So 44 E. 3. 19. in a Quare Impedit the King declared that he himself was sei­sed and presented one B. who at his presentment was received, &c. B. died, by which it belonged to the King to present; to which the Defendant be­ing Incumbent pleaded, that the said B. is yet alive, and that plea was allowed without other title made to himself. Note, that at the first Argument of this case, that the Court was of opinion against the De­fendant, because he had not in his plea any interest in the Advowson; and by Periam the Patron himself could not have had such plea if he had been party to the Writ, therefore not the Incumbent; and it is no good pleading in any Action, to discover in pleading any wrong, as force, disseisin, usurpation. But at length, Mutata opinione, all the Iustices were agreed, that Iudgment should be given against the Queen: And the Lord Anderson shewed openly the reason of their Iudgment, for here is not bare usurpation pleaded against the Queen, but also an estate, scil. a Lease for years in the said Advowson derived from Queen Mary, and that the Avoidance upon which the Action is brought falleth with­in the said Term, so as the Queen who is Plaintiff is encountred with the Lease of her Ancestor, against which she cannot make title to pre­sent, without special matter; wherefore Iudgment was given against the Queen.

LIX. Kynters Case. Mich. 28, & 29. Eliz. In the Common Pleas.

Debt. KYnter brought debt upon an Obligation, the condition was, that whereas the Plaintiff had bought of the Defendant a Ship, if then the Defendant shall enjoy the said Ship, with all the furniture be­longing to the same without being disturbed for the said Ship or any furniture appertaining to it; that then, &c. and the Case was, that after the sale of the said Ship a stranger sued the Plaintiff for certain monies due for certain Ballast bought by the Defendant for the same Ship and put into the said Ship before the sale of it, and in the said suit the Plain­tiff obtained a Iudgment and Execution, and thereupon the said Ship was seised, and all the matter was, if Ballast be furniture of a Ship or not; And it was moved by Serjeant Gawdy, that it was; for Ballast is as necessary to a Ship as a Sail; but the Court was against him, for somtimes a Ship may sail without Ballast, for it may be laden with such Merchandizes which are convenient Ballast in themselves, as Coals, [Page 47] Wheat, &c. Periam at the first doubted of it: and by him, if I be bound upon condition, ut supra, I am bound to deliver the Guns being in it at the time of the sale, but yet he conceived, that the Plaintiff should be barred because he had not specially shewed, that at the time of the sale the Ballast was in the Ship.

LX. Pendleton and Gunstons Case. Mich. 28, & 29 Eliz. In the Common Pleas.

PEndleton informed against Gunston upon the Statute of 13 Eliz. Cap. 5. for that, where the said Pendleton had before brought a plaint of Debt against I.S. in the Guild-Hall of Norwich; upon which issued out of the said Court an Attachment against the said I.S. by which the She­riff of Norw. being ready by virtue of the said process to attach the said I. S. by his goods, there, the now Defendant in disturbance of the said process and the execution of it, did publish and shew to the Sheriff a conveyance, by which he claimed the said goods as conveyed to him by the said I. S, &c. and averred the fraud, &c. and it was moved by Serjeant Snagg, that the matter of which the Defendant is charged is not within the said Statute, because the avowing of the said con­veyance doth not go in delay of the execution; for no Iudgment is given but only in delay of process; but the Court was clear of opi­nion to the contrary, and that by reason of the Statute and the words of it, scil. delay, hinder, or defraud Creditors of their just and lawful Actions, sutes, &c. for here is a delay; for want of serving the said Attach­ment, the Appearance of I.S. to the sute of the Plaintiff is delayed, which mischief is within the remedy of the said Statute. And Periam and Rhodes Iustices conceived, that such avowing of such conveyance, where no sute is depending is within the said Statute, which Anderson doubted. See the pleading of this Case reported in the second Book of Entries, 207, 208. 30 Eliz. per quod secta impedita fult, &c.

LXI. Mich. 28, & 29 Eliz. In the Common Pleas.

FEnner Serjeant moved this Case.4 Len. Alien, Purcha­sor. An Alien purchaseth Lands in Fee; The Queen confirms it to the Alien, Office is found, if the con­firmation shall bind the Queen; and it seemed to some that it should, for by the Lord Anderson, Confirmation. when an Alien is enfeoffed he receiveth by the Livery the Fee-simple, of which he shall be seised, until Office be found; and a Praecipe quod reddat lyeth against him. And by Fenner an Alien and Denizen Ioynt-tenants are disseised, they both shall joyn in Assize, vide 11 H. 4. 26. and by him, the Kings Nief being an Inheritrix takes a Husband, and hath issue, Office is found, the Husband shall be Te­nant by the Curtesy, which see 33 E. 3. Traverse 36. It was argued of the other side, that the estate of the Alien is so feeble that a confirmation cannot enure upon it; for an Alien cannot take but to the use of the King, and cannot be enfeoffed to another use; and if he be, such use is void, for there is not a sufficient seisin in the Alien to carry an use. And it hath been adjudged in the Case of one Forcet, that where an Alien and the said Forcet were Ioynt-purchasors, and the Alien died, Forcer had not the whole by the Survivor, but that upon an Office found, the Queen should have the moyety: See Dyer 11 Eliz. 283.

LXII. Sir Roger Lewknor and Fords Case. Mich. 28, & 29 Eliz. In the Common Pleas.

1 Cro. 17. Co. 5. Rep. 12. b.SIr Roger Lewknor seised of the Manor of Wallingford, leased the same to A. for years, and died, after which it was Enacted by Parlia­ment, That the said Manor should from henceforth be deemed and re­puted in the Heirs of the body of the said Sir Roger, begotten upon Eliz. his Wife, the said Sir Roger having three Daughters only, without any other issue: The Daughters married Husbands and had issue: A. assign­ed his enterest in the said Manor to B. C. and D. and also to one Shelley; B.C. and D. assigned their interest to one Sponer, one of the Defendants, and Shelly assigned his fourth part to Ford another of the Defendants, excepting the Woods and Vnderwoods. Wast is committed; one of the Daughters having issue dieth, living her Husband, the two surviving Sisters and their Husbands, the Term being expired, brought a Writ of Wast, leaving out the Husband of the third Sister, who was Tenant by the Curtesy, against Shelley and Sponer, who Tenuerunt. Shuttleworth Ser­jeant took Exception to the Writ: scil. praedictus Rogerus cujus haeredes ipsae funt, which shall be intended Heirs general, and by the Declaration it appeareth, that the Daughters have to them by Act of Parliament an especial inheritance as Heirs in special tail, and that by a special convey­ance: and therefore the Plaintiffs ought to have brought a special Writ, according to their Case, as where Cestuy que use, maketh a lease for years by the Statute of 1 R. 3. and the Lessee committeth Wast, now the Fe­offees ought to have a special Writ of Wast, according to their Case, 26 H. 8. 6. but that exception was disallowed, and the case cited out of 6 H. 8. is upon another reason, for in such case the estate of the Lessee for years is created by the said Statute. Another Exception was taken to the Writ, for the Writ is tenuerunt, which shall be intended prima facie, conjunctim tenuerunt, and in the Declaration it appeareth, that one of the Defendants is assignee of three parts of the Lands demised, and the o­ther Defendant of the fourth part, and so separatim tenuerunt, but that Ex­ception was also disallowed, because originally it was one and intirely demised interest and estate, and so it remaineth as to the Plaintiffs, al­though it be devised by the Lessee himself. Another Exception was taken to the Writ, because here it appears upon the Plaintiffs shewing, that Sir Roger Lewknor had three Daughters, and that they have all taken Husbands, and that they have issue, and that one of the said Daughters is dead, living her Husband, who is not named in the Writ, for which cause the Writ shall abate: See 22 H. 6. 24, 25. But that Exception was also disallowed; for as this Case is, there is not any reason, that the Tenant by the Curtesy should joyn in this Action, for no judgment shall be given here, that the Plaintiffs shall recover the place wasted, for the term is expired, as it appeareth by the words of the Writ, scil. quas tenuerunt, and the Tenant by the curtesy is in possession, and where Tenant by the curtesie and the Heir joyn in an Action of Wast, Tenant for life shall have Locum vastatum, and the Heir the damages, which see 27 H. 8. 13. As unto the matter of Law, upon the Exceptions of Woods and Vnder­woods, it was argued by Shuttleworth, that the Action of Wast was not well brought against Ford, &c. for the Assignment made by Shelley to Ford was with an exception of all Woods and Vnderwoods, and therefore Shel­ley remained Tenant, and he ought to answer for the Wood and the Vnderwood in the Action of Wast, for upon every demise of Lands the Woods there growing are as well demised as the Land it self, for so it appeareth by the Writ of Wast in domibus & boscis dimissis ad terminum annorum, &c. which proves, that the Trees are parcel of [Page 49] the demise, and so may be execepted: See Dyer 28 H 8. 19. by Shelley and Baldwin. A man leaseth a Manor, except Woods and Underwoods, the Lessee cuts the Trees, an Action of Wast doth not lie against him for the same, for the thing in which the Wast is supposed to be committed was not demised, &c. and therefore the Lessee shall be punished as a Trespassor and not as Farmer: Fenner Serjeant contrary, and that the Exception of the Woods and Vnderwoods is meerly void; for Shelley who assigns his interest with the said Exception, hath not any such interest in the Woods and Vnderwoods, so as he can make such ex­ception, for he had but an ordinary interest in them as Farmer, viz. House-boot, Hedge-boot, &c. which interest cannot by any means up­on an Assignment be reserved to the Assignor, in gross of the estate, no more than if one hath common appendant to his Land, and he will make a Feoffment of the Land, reserving, or excepting the common. And he who hath the inheritance of the Land, hath an absolute proper­ty in the Trees, but the Lessee hath but a qualified interest, and there­fore 21 H 6. 46. the Lessor during the term for years may command the Trees to be cut down: and 10 H. 7. 3. Lessee for years hath not any inter­est in the Trees, but for the loppings, and for the shadow for his Cat­tle: And in the Case cited, where Lessee for life and he in the Reversion make a Lease for life unto a stranger, and wast is committed,Co. 1 Inst. 42. 2. and they bring an Action of Wast, the Lessee for life shall have the place wasted, and he in the Reversion the treble damages, for in him was the true and very property of the Trees, and therefore the treble damages do belong unto him, and not to the Lessee for life, who joyneth with him; and the reason wherefore the Lessee for life or years shall recover tre­ble damages against a stranger who cuts down any Trees growing upon the Land to him demised, is not in respect of any property that the Lessee hath in the Trees cut down, but because he is chargable o­ver to his Lessor in an Action of Wast, in which he shall render dama­ges in such proportion. So see 27 H. 6. Wast. 8. A lease for life is made without impeachment of wast, a stranger of his own wrong cuts down Trees, against whom the Lessee brings an Action of Trespass; in such Case he shall not recover treble damages, not for the Trees, but only for the breaking of the Close, and the loppings, for he is not chargea­ble over to his Lessor for the same, because that his Lease was made without impeachment of Wast; and if the Lessee hath such a slender in­terest in the Trees where his Lease is without impeachment of wast, his interest is less, where it is an ordinary lease without any such privi­ledge: And the property which the Lessee for years hath in the Trees in such Case, is so appropriated to the possession, that it cannot be severed from it. Windham and Anderson Iustices were of opinion, that the Exception above is meerly void: For Ford the Assignee of Shelly is now Termer and Farmer, who alone can challenge interest in the Trees against all but the Lessor, and Shelley after his Assignment, is meerly a stranger. The interest of the Lessee, and also of his Assignee in the Trees is of necessity, and follows the Farm and the Land as the shadow doth the body; And by him, where Lessee for years by rea­son of his lease is to have Wind-fals, yet he cannot imploy them but to the benefit and profit of his Farm, for if he sell them or spend them elsewhere he shall be punished. Rhodes and Periam Iustices, that the ex­ception is good, as the fruits of the Trees, Shovelers, &c. And after­wards the Case was adjudged upon another point in the pleading, so as the matter in Law did not come to Iudgment: See Saunders Case. 41 Eliz. Where Lessee doth assign, excepting the Timber Trees, it is a void Exception.

LXIII. Gray and Jeffes Case. Pasch. 29 Eliz. In the Kings Bench.

1 Cro. 55. Action of as­sault and Bat­terry.IN an Action upon the Case by Gray against Jeffe, the Plaintiff decla­red, that where he had placed his Son and Heir apparent with the Defendant, to be his Apprentice, and to learn of him the Art of a Tailor: That the Defendant had so beaten his Son with a Spade, that he thereupon became lame, by reason of which he could not have so much with his Son in marriage of him as otherwise he might have, because the same lameness is a disparagement to his said son: And further shewed, that he himself might spend twenty pounds per annum in Lands. Haulton argued for the Plaintiff. The Action Quare filium & haeredem cepit & abduxit, is given to the Father in consideration that the marriage of his Son and Heir doth appertain to him by the Law, and here by the Battery the Son is become so same, that he is not so com­mendable to a Marriage as before, and if the Father had lost the whole marriage, then the Father should have had the Action Quare filium & haeredem, &c. but here he hath not lost the whole marriage, but the marriage is lessened by it, and therefore he shall have this Action. Tanfield contrary; I confess, that the Father ought to have the marri­age of his Son and Heir so long as he is sub potestate patris; but here the Father hath committed all his interest, power and authority in his Son to the Defendant his Master, with whom he hath bound his Son Ap­prentice for seven years, during which term the Father hath not any thing to do with his Son or his Marriage. Wray: The Action Quare filium & haeredem, &c. is not given to the Father, because his marriage be­longs to him, but because of the Education; and such was the opinion of Clench Iustice, and the marriage doth not belong properly to the Father: For if the Son marrieth himself without the leave of the Fa­ther there is not any remedy for the Father. And afterwards Iudg­ment was given against the Plaintiff.

LXIV. Bullers Case. Pasch. 29 Eliz. In the Common Pleas.

[...]evin. EDmund Buller brought a Replevin against two, who make Conusans as Baylies to A. for rent arrear reserved upon a lease for life, To which the Plaintiff in Bar of the Conusans pleaded, that two stran­gers had right of Entry in the place where,2 Len. 196. &c. and that the said two Defendants by their Commandment entred, &c. and took the Cattle of which the Replevin is brought, damage feasant, absque hoc, that they took them as Baylies to the said A. and upon that Traverse the Defendants did demur in Law.2 Len. 216. Post. 327. Shuttleworth Serjeant; the Traverse is not good, for by that means the intent of the party shall be put in issue, which no Iury can try, but only in Case of Recaption. See 7 H. 4. 101. by Gascoign. If the Bayly upon the distress shews the cause and reason of it, he cannot afterwards vary from it, but the other party may trice him by Traverse; but if he distrain generally without shew­ing cause, then he is at large to shew what cause he will, and the other party shall answer to it. [...] Co. 7 [...]. And it was said by the Court, that when a Bayly distreins, he ought, if he be required, to shew the cause of his dis­tress, but if he be not required, then he is not tied to do it. Anderson. We were all agreed in the Case betwixt Lowin and Hordin, that the Traverse, as it is here, was well taken. The Number Roll of that Case is M. 28, & 29 Eliz. 2494.

LXV. Hudson and Leighs Case. Pasch. 29 Eliz. In the Kings Bench.

HUdson recovered against Leigh in an Action of Battery, for which a Capias pro fine issued against Leigh; and also a Capias ad Satisfaciendum, re­turnable the same Term at one and the same Return:Process. As to the Capias pro fine the Sheriff returned Cepi, and as to the Capias ad Satisfaciendum, non est inventus: And for this contrariety of the Return, the Court was of opi­nion, that the Sheriff should be amerced; but it was moved by the Council of the Sheriff,Return of the Sheriff. that the awarding of the Capias pro fine was meerly void, for the Fine is pardoned by the Parliament. And it is also Enacted, That all process awarded upon such Fines shall be void; and then the Capias pro fine being void, it matters not how or in what manner it be returned, for the Court shall not respect such pro­cess, nor any return of it, and then the Court not having resepect to that Return, there is not any contrariety, for the Ca­pias ad Satisfaciendum only is returned, and not the Capias pro fine. And at another day it was moved again; the Battery was supposed: Junij 1586. and Iudgment given the thirteenth of February the same year, upon which issued Capias pro fine, Escape. 5 Co. [...]. and before the Return thereof the Parliament ended, which pardoned such Fines and made all process thereupon void: And it was said by the Court, that if the Sheriff in such Case takes the party by a Capias pro fine, now upon that taking he is in Execution for the party, and if the Sheriff let him go at large, he shall answer for the escape: And in that case the Capias pro fine was well awarded, and the Court ought to regard it, and the Defendant law­fully taken by virtue of it, and also in execution for the party in Iudg­ment of Law; and afterward, when the Parliament came and En­acted ut supra, although the process be made void thereby, the same ought to be meant as to the interest of the King in the Fine, and the vexation of the Subject by it, but not as to the Execution of the party, but the Sheriff shall answer for that.Execution. And it was also holden by the Court, that if the Plaintiff sueth an Elegit, then upon the Capias pro fine executed, the Defendant shall not be adjudged in Execution for the party, for he hath made his Election of another manner of Execution, scil. of the Land, and he shall never resort to an Execution of the bo­dy, 13 H 7. 12. And as our case is there was an Elegit obtained, but it was not on Record, nor any Record made of it, and therefore the e­lection of the Execution remained to the Plaintiff. And as to the point aforesaid, that such process shall be void as to the King only, not as to the party: See now 5 Ja. C. 6. part. 79. Sir Edward Phittons Case.

LXVI. Potter and Stedals Case. Pasch. 29 Eliz. In the Common Pleas.

IN Trepass by Samuel Potter against Stedal the Case was,Trespass. Tenant for life of Land leased parcel thereof to hold at Will, and being in possession of the residue, levyed a Fine of the whole, the Lessor entred into the Land which was let at will in point of forfeiture, in the name of the whole; it was holden the same is a good entry for the whole:Ante 56. But if the Disseisor leaseth for years part of the Land, whereof the disseisin was committed,Entry. 1 Inst. 252. and the disseisee afterwards entreth into the Land which continueth in the possession of the Disseisor in the name of the whole, the same Entry shall not extend to the Land leased, for here the Lessee is in by title, but in the other Case not, for when Tenant for life leaseth it at will, and afterwards levies a Fine, the same is a determina­tion [Page 52] of the Will. 16 Eliz. Dyer 377. 1. In the same plea it was holden, that if there be lessee for life, the remainder for life, the remainder in fee, Lessee for life in possession levyeth a Fine Sur Conusans de droit, &c. to his own use, upon that Fine a Fee-simple accrues.

LXVII. Leigh and Hanmers Case. Pasch. 29 Eliz. In the Common Pleas.

Debt upon a Recognizance THomas Leigh Esquire brought an Action of Debt upon a Recogni­zance in the nature of a Statute Staple against John Hanmer Esquire, before the Mayor and Aldermen of Lond. in Camera Guild-hall Civitatis pr [...]ed. and demanded 1500 pounds, upon such Recognizance acknowledged 20 November 20 Eliz. and upon default of the said Hanmen, Owen 25. according to the custom of London used in course of Attachment, attached six hun­dred pounds in the hands of one W. Bolton of Grays-Inn, in part of satis­faction of the said debt of one thousand five hundred pounds; and now within the year came the said Hanmer, & ad disonerandum debitum praedicti had a precept of Scire facias against the said Thomas Leigh, and after pleaded, and demanded Dyer of the said Recognizance, and had it, & quod ipse restitutionem of the said 600 pounds, in manibus dict. W. Bolton atta­chiat. habere debet: And upon the whole Record the Case was thus: Row­land Leigh Esquire, being seised of certain Manors and other Lands in the County of Glocest. had issue Eliz. his Daughter and Heir inheritable to the said Lands, and by Indent. dated 20 Maii 19 Eliz. granted Custodi­am, regulam, gubernationem, educationem, maritagium dict. Eliz. to the said Thomas Leigh, after which the said Thomas Leigh by Indenture 14 Martii 29 Eliz. granted and assign [...]d the said custody,Dyer 190, 191. rule, government, education, and marriage, and all his interest therein, and the said Indenture, to Sir John Spencer, after which the said Sir John Spencer and Thomas Leigh, by their Indenture the 26. of August 20 Eliz. granted and assigned to the said John Hanmer the said custody, rule, government, education and mar­riage o [...] the said Eliz. and all their interest in the same, and all the re­cited Indenturs; by which last recited Indenture 29 August, the said John Hanmer covenanted with the said Leigh, that Thomas Hanmer Son and Heir apparent of the said John Hanmer, maritaret & in uxorem duceret dictam Elizabetham: ad vel antequam dicta Eliz. & dictus Tho. Hanmer perimplerint, suas separales aetates 14 annorum, si dicta Eliz. ad id condestendere & agreare vellet; and afterwards before the said Tho. Hanmer and the said Elizabeth, suas separales aetates 14 annorum, perimplevissent, sc. 8 die Sept. 20 Eliz. the said Tho. Hanmer took to wife the said Eliz. the said Tho. Hanmer then being aetatis 13 annorum and no more, and the said Eliz. then being of the age of nine years and no more, and Tho. Hanmer aforesaid over-lived, &c. And plead­ed further, that the said Tho. Hanmer after he attained his full age of fourteen years, and before any agreement or assent by the said Tho. Hanmer to the marriage aforesaid betwixt the said Tho. Hanmer and the said Eliz. had, at or after, idem Thomas Hanmer came to his age of four­teen years, scil. 10 die Sept. Anno 22 Eliz. ad dictum matitagium disagreavit, & maritagium illud renunciavit; and all this matter was pleaded in Bar, as performance of the Covenant contained in the Indenture of defea­zance made upon the Recognizance, whereupon the Action is brought. And concluded his plea, unde petit, judicium si dictus Tho. Leigh actionem suam praed [...]ct &c. Et quod ipse idem Johannes Hanmer restitutionem dict. 600 li sc. ut prae­fert a [...]achiat habere valeat. And all the question here was, if this marriage had by this manner, and afterwards renounced as is aforesaid, be such a mar­riage as is intended in the Covenant, so as the said Covenant be satisfi­ed by it. And it was argued before the Mayor Recorder, and Aldermen of [Page 53] London, in their Guild-Hall by Angier of Grays-Inn, on the part of Leigh the Plaintiff; and he in his Argument did much rely upon the definition of marriage, by Justinian in his Institutions. Nuptiae maris & faeminae conjunctio individua continens viae societatem; and the marriage here in question is not according to the said difinition, for the persons, parties to this contract, are not persons able by Law to make such contract, because that non at­tigerunt annos nubiles, Ergo nuptiae esse non possunt, but only sponsalia, a step un­to marriage; And there is also rendred one reason of the said defini­tion upon the word individua, individuam dico, quia non nisi morte aut divortio separandum, but the marriage now in question might be dissolved with­out death or divorce, as it is in our case by disagreement: And see Jurisprudentiae Romanae, Lib. 1. Cap. 33. Societas & consortium omni vita inter ma­rem & faeminam ad concubitum, which is societatis hujus consummatio; And as every Act doth consist upon three things, 1. Inceptio, 2. Progressio, 3. Con­tinuatio, so is it in the Case of marriage; but in this case when Thomas Hanmer took the said Eliz. to Wife, that is but an inception, but the progression and consummation of it is cut off by the disagreement; and he much relyed upon the words of the Covenant, s [...] dicta Eliz. ad id condescendere & agreare vellet, so as there is not any liberty left to the De­fendant for the agreement or disagreement of the Son, but he ought, to agree at the peril of his Father; but if Eliz. will not agree, then the Defendant is not at any mischief, for in such case the Covenant doth not extend to him; and also here the Father is bound that his Son, a stranger to the Obligation should marry the said Elizabeth, which he ought to procure at his peril, or otherwise he shall forfeit his Bond. Egerton Solicitor of the Queen argued to the contrary; This mar­riage as much as concerns this Covenant, is to be considered accord­ing to the reason of the common Law, and not according to the rules and grounds of the Canon or Civil Law, not as a marriage to right, but as a marriage in possession, and marriage in possession is sufficient always in personal things and causes, especially where the possession of the Wife is in question,2 Roll. 585. but where the possession of the Husband is in question, there marriage in right ought to be, and where marriage in possession fals in averment, there it shall not be tried by the Bishop, as in the Case of a marriage of right, where, never accoupled in loy­al matrimony, is pleaded, but by the Country, for in case of Wife in possession, never accoupled in matrimony, is no Plea,Postea. 181. 12 Len 170. 171. [...]3 Len. 129. but not his Wife, which see 12 E. 3. br. 481. A. brought an Action of Trespass against B. and C. B. pleaded that C. is Wife of the Plaintiff, and demanded Iudg­ment of the Writ; the Plaintiff by Replication said, never accoupled in Lawful matrimony, but it was not allowed, but was driven to say, not his Wife, for if C. was the Wife of the Plaintiff in possession or by Re­putation, it is sufficient to abate the Writ: see also 49 E. 3. 18. by Belknap, the right of the Espousal is always to be tried by the Bishop, but the possession of the marriage▪ not as in Assize by A. and K. his Wife▪ the Tenant demanded Iudgment of the Writ upon special shatter and concluded, so is the said K. our Wife, and not the Wife of A. So in a Cui invita by B. and C. his Wife, the Tenant pleaded, never accoupled in loyal matrimony, the same is no answer to the Wife, for she demand­ed in her own right, and if he who aliened was her Husband in posses­sion, the Wife could not have other Action, for Assize doth not lie, be­cause he was her Husband in fact at the said time in possession. And see also 50 E. 3. 20. adjudged according to the opinion of Belknap: And see also 39 E. 3. As to the marriage in right, as the case in question is; for upon such marriage, if the Husband be murdred before disagree­ment, the Wife shall have an Appeal of Murder, and a Writ of Dower: so where Appeal is brought of the Rape of his Wife, although she be his Wife but in possession, and not in right, 11 H. 4. 13. by Hulls 168. and by Littleton, if the Wife be of the age but of nine years, she [Page 54] shall have Dower, which see also 35 H. 6. and yet Dower shall never ac­crue but in case of marriage in right, for there, never coupled in mar­riage, is a good Plea, See 12 R. 2. Dower 54. In Dower the Tenant plead­ed, that the Husband at the time of his death was but at the age of 10 years, and the Demandant now but 11 years, and yet Iudgment was given for the Demandant, for by Charleton the same was a marriage in right until disagreement, See 22 Eliz. Dyer 369. A woman at full age marrieth a Husband of 12 years, who dieth before the age of consent, the same is a good marriage, and so ought to be certified by the Bish­op; and 7 H. 6. 11. by Newton, a woman married within age of consent may bring an Action as a feme sole, and the Writ did abate. Stamford Pre­rogat. 27. 19 E. 3. Judgment 123. In a Writ of Ward, the Iury found, that the Infant was of the age of 10 years, and no more, but they did not know whether she was married or not, but de bene esse, if she be married, assess damages one hundred pounds, and if not, five pounds; upon which it appeareth that marriage at such an age is such a marriage upon which the Lord shall recover damages; See 13 H. 3. gard. 148. such mar­riage in the life of the Ancestor, infra annos nubiles, if there be no disagree­ment shall bind the King: And after the death of the Ancestor, the heir shall remain in custodia Domini Regis, us (que) ad aetatem ut consentiat, vel dissentiat, 45 E. 3. 16. In a Writ of Ward, the Infant was found of the age of 12 years, and the Iurors gave damages 300 marks, if he were mar­ried, and 27 H. 6. gard. 118. & 47 E. 3. Br. Trespass 420. and Fitz. Action up­on the Statute 37. Trespass de muliere abducta cum bonis viri, where the wife is within the age of consent: and if I be bounden unto another in an Obligation, upon condition to pay a sum of mony upon the mar­riage day of I S. now, if I S. be married within the age of consent, I am bound to pay the mony the same day, although afterwards the par­ties do dissent, and the Wife after such marriage shall be received in a Plea real upon the Default of her Husband; and the words, si dicta E­liz. ad id condescendere & agreare vellet, are to be understood of an agreement at the time of the marriage, and here the time is limited for the solem­nization of the marriage, scil. at or before they shall have accomplished their several ages of 21 years, makes the matter clear; For it is in the election of Hanmer the Father, to procure this marriage, scil. that his Son shall take to Wife the said Elizabeth, at which of the two times he will, scil. at or before, &c. to the marriage before &c. is as effectual in respect of the performance of this condition, as if the marriage had been had after; and as the case is, the condition could not be better performed, for if the marriage had been stayed till after 14 years, &c. although the marriage doth not ensue, yet the Obligation had been for­feited, and that the marriage be solemnized just at the age of both of 14 years, was impossible, for Thomas Hanmer was the elder by 2 years than the said Elizabeth, and therfore they ought to be married at such time which might stand with the condition, and the same is done according­ly: And as to that which hath been objected, That now by disagree­ment the marriage is determined, we ought to observe that Hanmer was bounden for the performance of the Covenant, and that his son and heir apparent maritaret, & in uxorem duceret dictam Eliz. ud vel ante, &c. which is executed accordingly, and he is not bounden for the continuance of the said marriage, but the continuance of the same ought to be left to the law, which giveth to the parties liberty to continue the marriage by agreement, or to dissolve it by disagreement: And therefore if I am bounden to you, that I S. (who in truth is an Infant) shall levy a Fine before such a day, which is done accordingly, and afterwards the same is reversed by Error, yet notwithstanding the condition is performed, &c. and afterwards Iudgment was given against the Plaintiff.

LXVIII. The Earl of Warwick and the Lord Barkleys Case. Pasch. 29 Eliz. In the Common Pleas.

AMbrose Earl of Warwick and Robert Earl of Leicester brought a Writ of Partition against the Lord Barkley, Partition. Challenge. in which the parties pleaded to issue. And now at the day of the Enquest the Defendant did challenge, that in the whole Pannel there were but two Hundreders; and at the first it was doubted by the Court, if upon the Statute of 27 Eliz. cap. 6. by which it is Enacted; That no further challenge for the Hundred shall be admitted if two sufficient Hundreders do appear, the Enquest shall be taken: But at length the whole Court was clear of opinion, that the said Statute did extend but to personal Actions; but this Action of Partition is a real Action; and Summons, and se­verance lieth in it, but not process of outlawry, and therefore here four Hundreders ought to be returned; so in an Action of Wast, al­though it be in the personalty: and therefore the Council of the Plain­tiffs prayed a Tales.

LXIX. The Archbishop of York and Mortons Case. Pasch. 29 Eliz. In the Common Pleas.

THe Archbishop of York recovered in an Assize of Novel disseisin against one Morton before the Iustices of Assize;3 Len. 159. Error upon re­covery in Assize. upon which Iudgment Morton brought a Writ of Error before the Iustices of the Common Pleas, and after many motions at the bar, it was adjudged that a Writ of Error upon the said Iudgment did not lie in the said Court. 18 Eliz. Dyer 250. F. B. 22. That upon Erronious Iudgment given in the Kings Bench in Ireland, Error shall be brought in the Kings Bench in England, 15 E. 3. Error 72. Fenner who was of Council with the Arch­bishop demanded of the Court how, and in what manner the Record shall be remanded to the Iustices of Assize, so as the Archbishop might have execution; To which the Court said, that the surest way is to have a Certiorare out of the Chancery into the Common Pleas directed to the Iudges there; and then out of the Chancery by Mittimus to the Iustices of Assize. But Fenner made a difficulty of it to take such course for the remanding of it, for doubt they would not allow it to be a Re­cord where it is not a Record, for upon the matter the Record is not removed, but remains with the Iustices of Assize. Then Anderson said, Sue Excution out of the said Record; but because the Record came before us by Writ of Error, it shall be also removed and remanded by Writ: and so it was.

LXX. Kempe and Carters Case. Pasch. 29 Eliz. In the Common Pleas.

THomas Kempe brought Trespass,Copyhold. for breaking of his Close against Carter: and upon pleading they were at issue, if the Lord of the Man­or aforesaid granted the said Lands per copiam rotulorum curiae manerii praedict: secundum consuetudinem manerii praedict. and it was given in Evidence, that within the said Manor were divers customary Lands, and that the Lord now of late at his Court of the said Manor granted the Land, &c. per co­piam [Page 56] rotulorum curiae, where it was never granted by copy before: It was now holden by the whole Court, that the Iury are bound to find, Do­minus non concessit, for notwithstanding that de facto Dominus concessit per copi­am rotulorum curiae, yet, non concessit secundum consuetudinem manerii praedict. for the said Land was not customary, nor was it demisable, for the custom had not taken hold of it. In the same Case it was also shewed, that with­in the said Manor some customary Lands are demiseable for life only,Evidence of customs. and some in Fee; and it was said by the Lord Anderson, that he who will give in Evidence these several customs, ought to shew the several li­mits in which the several customs are severally running, as that the Manor extends into two Towns, and that the Lands in one of the said Towns are grantable for lives only, and the Lands in the other in Fee, and he ought not to shew the several customs promiscuè valere through the whole Manor: And he remembred a Case of his own experience: scil. The Manor of Wadhurst in the County of Sussex consisted of two sorts of Copy-hold, scil. Sook-land and Bond-land, and by several customs disseverable in several manners: As if a man be first admitted to Sook-land, and afterwards to Bond-land, and dieth seised of both, his Heir shall inherit both; but if he be first admitted to Bond-land, and after­ward to Sook-land, and of them dieth seised, his youngest Son shall inherit, and if of both simul & semel, his eldest Son shall inherit; But if he dieth seised of Bond-land only, it shall descend to the young­est: and if customary Land hath been of ancient time grantable in Fee, and now of late time for the space of forty years hath granted the same for life only; yet the Lord may if he please resort to his ancient custom and grant it in Fee. It was also moved in this case, If customary Land within a Manor hath been grantable in Fee, if now the same Escheat to the Lord, and he grant the same to another for life; the same was holden a good grant and warrantable by the custom, and should bind the Lord, for the custom which enables him to grant in Fee shall enable him to grant for life: and after the death of the Tenant for life, the Lord may grant the same again in Fee, for the grant for life was not any interruption of the custom, &c. which was granted by the whole Court.

LXXI. Walker and Nevils Case. Pasch. 29. Eliz. In the Common Pleas.

Dower. WAlker and his Wife brought a Writ of Dower against Jervice Nevil, and judgment was given upon Nihil dicit, and because the first Husband of the Wife died seised, a Writ of Enquiry of Damages was awarded, by which it was found, that the Land which she ought to have in Dower, the third part was of the value of eight pound per annum, and that eight years elapserunt a die mortis viri sui proximè ante inquisitionem & assi­dent damna to eight pounds; and it appeared upon the Record, that af­ter Iudgment in the Writ of Dower aforesaid the Demandants had ex­ecution upon habere facias seisinam, Damages. so as it appeareth upon the whole Re­cord put together, that damages are assessed for eight years, where the Demandants have been seised for part of the said eight years, upon which the Tenant brought a Writ of Error, and assigned for Error, because damages are assessed untill the time of the Inquisition, where they ought to be, but to to the time of the Iudgment; but the Excep­tion was not allowed; Another Error was assigned, because that where it is found, that the Land was of the value of eight pounds per annum, they have assessed damages for eight years, to eighty pounds, beyond the Revenue; for according to the rate, and value found by verdict it did amount but to sixty four pounds: but that Error was not also allowed; for it may be, that by the long detaining of the Dower, the Demandants have sustained more damages than the [Page 57] bare Revenue, &c. Another Error was assigned, because Damages are assessed for the whole eight years after the death of the Husband, where it appeareth, that for part of the said years the Demandants were seised of the Lands by force of the Iudgment and execution in the Writ of Dower; and upon that matter the writ of Error was allowed.

LXXII. Archpool against the Inhabitants of Everingham. Pasch. 29 Eliz. In the Common Pleas.

IN an Action upon the Statute of Winchester of Huy and Cry by Archoopl against the Inhabitants of the Hundred of Everingham, the Iury found, that the Plaintiff was robbed 2 Januarii post occasum solis, sed per lucem diurnam, and that after the Robbery committed, the Plaintiff went to the Town of Andover, and advertised the Baylies of the said Town of the said Robbery; and further found, that the said Town of Andover is not within the said Hundred of Everingham, and that there is another Town nearer to the place where, &c. the Robbery was done, than the said Town of Andover within the said Hundred, but the said Town of Andover was the nearest place where, &c. by the Kings high-way: It was moved that upon this matter, the Plain­tiff should not have judgment, for that he hath not made his Fresh sute according to the Law, for he ought to have begun his Fresh sute within the Hundred where the Robbery was done: and it was also objected, that the Robbery was done post occasum solis, in which Case the Hundred­ers are not to pursue the Malefactors. And Walmsley Serjeant cited a Case out of Bracton: Si appellatus se defenderit contra appellantem tota dle usque ad horam in qua Stellae incipiunt apparere, recedat quietus de appello, and it is not reason to drive the Hundreders to Follow felons at such a time,1 Cro. 270. when for want of light they cannot see them. And all the Iustices were clear of opinion, that if the Robbery was done in the night time, the In­habitants are not bound to make the pursute: And by Rhodes, if in a Praecipe quod reddat of Lands, the Sheriff summons the Demandant upon the Land in the time of night, such a summons is meerly void.

LXXIII. Wiseman and Wisemas Case. Pasch. 29 Eliz. In the Common Pleas. Intrat. Trin 28. Rot. 1458.

IN an Action of Debt by Wiseman against Wiseman, the Case was,Debt. 1 And. 160. Owen 140. that one Wiseman was seised of the Lands, and by his Will devised, 1. I will and bequeath unto my Wife B. acre for the Term of her life, the remainder to my Son Thomas in tail: Item I will and bequeath unto my Son Thomas, Devises. all my Lands in D. and also my Lands in S. and also my Lands in V. Also I give and bequeath unto the said Thomas my Son all that m [...] Island or Land enclosed with water which I purcha­sed of the Earl of Essex: To have and to hold all the said last before devised premisses unto the said Thomas my Son, and the Heirs of his Body: The only matter was, If the Habendum shall ex­tend to the Island only, in which Case Thomas shall have but for life in the Lands in D. S. and V. or unto the Island, and also to the Lands in D. S. and V; 2 Roll. 60. Roph. 126. in which Case he shall have Fee-tail in the whole. And it was argued by Fenner, that the Habendum should extend to the Island only; as he said, the opinion of the Iustices of this Court was in 4 Eliz. in another Case. I devise my Manor to D. my eldest Son, and also my Land in S. in tail, in that Case the entail limited for the Land in S. shall not extend to the1 Roll. 844. [Page 58] said Manor, and of such opinion was Weston, Welsh, and Dyer; Brown contra, that the Son hath tail in both. But if the words of the devise had been, I devise my Manor of D. and my Lands in S. to my Son in tail, here the Son had an estate tail in both. So it hath been adjudged, that if I devise Lands to A. B. and C. successively as they be named, the same is good by way of Remainder. Walmesley contrary, and he relied much upon this, that the words of the Habendum are in the plu­ral number,2 Bulst. 180. 181. All the last before devised premisses, whereas the thing lately devised by the Will was an Island in the singular number, which cannot satisfie the Habendum, Extent of an Habendum. which is in the plural number, and there­fore to verifie the plural number in the Habendum, the Habendum by fit construction shall extend to all the Lands in D. S. and V. and so upon his motion made at another day, it was resolved by all the Iustices, that the Habendum should extend to all the said Lands, and the Haben­dum should not streighten the Devise to the Island only.

LXXIV. Fullwood and Fullwoods Case. Pasch. 29 Eliz. In the Common Pleas.

Bail renders himself in Court.IN an Action upon the Case, the Defendant put in bail to the Court to answer to the Action; and now Iudgment being given against him, he came into Court and rendred himself, and prayed, that in dis­charge of his sureties, that the Court would record the rendring of himself, which was granted: And the Court demanded of the Plaintiff, if he would pray execution for the body against the Defendant, who said, he would not, whereupon the Court awarded, that the sureties should be discharged; and the Rule was entred, that the Defendant offered himself in discharge of his sureties, and Attornatus Querentis allo­catus per curiam, &c. dixit se nolle, &c. Ideo consideratum fuit per curiam, quod tam praedict. defend. quam praedict. Manucaptores de recognitione praedict. & denariis in eadem contentis exonerentur.

LXXV. Pasch. 29 Eliz. In the Common Pleas.

THe Case was, He in the Reversion upon a Lease for years, makes a Charter of Feoffment to divers persons to the use of himself for life,Feoffments. and after to the use of his eldest Son in tail; and the words of the Charter were, Dedi, Concessi, Barganizavi, & Feoffavi, and he sealed and de­livered the deed, but no livery of seisin was made; and afterwards he came to his Lessee for years, and said to him, that he had made a Feoff­ment, and shewed also the uses, but did not shew to whom the Feoff­ment was made; to whom the Lessee said, you have done very well, I am glad of it:Attornment. And if that were a good Attornment was the Question: It was said, that that was the Case of one Arden. And Gent, and Manwood were of opinion, that the same was no Attornment, because it was not made to the Feoffee, scil. to the Grantee of the Reversion; and so it was ruled in this Case, for Attornment ought to be to the Grantee himself, and not to Cestuy que use.

1 Cro. 251. Tythes, and where the spi­ritual court shall have ju­risdiction of them. LXXVI. The Parson of Facknams Case. Pasch. 29 Eliz. In the Common Pleas.

THe Parson of great Facknam brought an Action of Trespass against the Parson of Hannington, and the Case was, If the Parson of one Parish claim by prescription a portion of Tythes out of the Parish of [Page 59] another, if the Spiritual Court shall have the Iurisdiction, for the try­al of it: And the opinion of the whole Court was clear, that it should, because that the matter is betwixt two spiritual persons, and concern­ing the right of Tithes. As 35 H. 6. 39. I. Vicar of B. brought Trespass for taking away of forty loads of Beans, &c. The Defendant pleaded, that he is Parson of the said Church of B. and the Plaintiff is Vicar, &c. and before the Trespass, &c. the Beans were growing in the same Town, and severed from the nine parts, and he took them as belong­ing to his said Church, and demanded Iudgment of the Court, &c. The Plaintiff said, that he and all his Predecessors Vicars, &c. time out of mind, &c. have used to have the Tithes of such a Close, &c. be­longing to his Vicaridge, and within the said Close the Beans were growing and were parcel of his endowment; and that at the time of the taking they were severed from the nine parts, whereupon he took them. And it was holden by Ashton and Danby, because it is confessed on both sides that the Beans whereof, &c. were Tithes, the Right of which would come in debate betwixt the Parson and the Vicar, and both are spiritual persons, that the tryal thereof doth belong to the Spiritu­al Court. See 6 E. 4. 3. 22 E. 4. 23. 24. in such a matter betwixt the Par­son and Vicar there the Temporal Court was ousted of the Iurisdicti­on. See also 31 H. 6. 11. betwixt the Parson and the Servant of ano­ther Parson. 7 H. 4. 102. In Trespass by a Parson against a Lay-man, who said, that one A. is Parson of a Church in a Town adjoyning to a Town where the Plaintiff is Parson, and that A. let to him the Tithe, and demanded Iudgment, &c. and pleaded to the Iurisdiction, and by Gascoigne, the Plaintiff may recover his Tithes in the Spiritual Court.

LXXVII. Bunny against Wright and Stafford. Pasch. 29 Eliz. In the Kings Bench.

IN Trespass the Case was this:Leases within 1 Eliz. and 32. 7, 8. made by Bishops. Grindal Bishop of Lond. leased parcel of the possessions of his Bishoprick for one and twenty years, and afterwards ousted the Lessee and leased unto another for three lives, rendring the antient and accustomed Rent, which was confirmed by the Dean and Chapter. And afterwards Grindal is translated: Cook argued, That the Lease is warranted by the Statute of 1 Eliz. At the Common Law a Bishop might make an Alienation in Fee-simple be­ing confirmed by the Dean and Chapter: But by 32 H. 8. cap. 28. Bish­ops without Dean and Chapter, or their confirmation may make a Lease for one and twenty years, but with the confirmation of the Dean and Chapter may make a Lease for one thousand years.Co. 1. Inst. 45. 2. More 107. 1 Anderson 65. But by the Statute of 1 Eliz. the power of Bishops in that right is much abridg­ed, for now with confirmation or without confirmation they cannot dis­pose of their possessions but for one and twenty years or three lives; and this Lease is in all points according to the Statute of 1 Eliz. for first it begins presently upon the making of it: Secondly, the antient rent is reserved payable yearly during the term; for although here be an old Lease in esse, yet the Rent reserved upon the second Lease is payable during the second term, for payable is a word of power and not of acti­on, as 1 H. 4. 1. 2. 3. Lord, Mesne, and Tenant, the Mesne gives the Mes­nalty in tail, rendring Rent, it is a good Rent, and well reserved, al­though here be not a present distress; yet it may be the Tenancy will escheat, and then the Donor shall distrein for all the Arrearages: And so the Rent is payable by possibility. And 10 E. 4. 4. A. leaseth for years, and afterwards grants the Reversion to a stranger, if the Beasts of the stranger come upon the Lands during the term; A. may distre [...] for the Arrearages incurred, and if he happen seisin, he shall have a [...] [Page 60] Assise during the continuance of the first term. And he cited a Case lately adjudged in the Exchequer. A Lessor entred upon Lessee for years, and made a Feoffment rendring Rent with clause of Re-entry, the Lessee re-entred, claiming his Term, and afterwards during the said Term for years, the Rent reserved upon the Feoffment upon demand of it is behind: Now hath the Lessor regained the Reversion: And so a Rent may be demanded although not distreinable. And all that was affirm­ed by Egerton Solicitor General: And see the words of the Statute of 32 H. 8. cap. 28. Rent reserved yearly during the said Lease due and pay­able to the Lessor, &c. such Rent, &c. and yet by the said Statute, such Leases may be good, although there be a former interest for years in being, if the same shall be expired, surrendred, or ended within one year after the making such new lease, and so not expresly payable in rei veri­tate, annually during the Term.

LXXVIII. Bonefant and Sir Rich. Greenfields Case. Pasch. 29 Eliz. In the Kings Bench.

Sale of Lands by the Execu­tors of the Devisor. BOnefant brought Trespass against Sir Rich. Greenfield, and upon the general issue, this special matter was found: Tremagrie was seised of a Manor, whereof the place where, &c. was parcel, in his Demesne as of Fee, and by his Will devised the same to his four Executors, and further willed,Post. 260. that his said Executors should sell the same to Sir John Saintleger for the payment of his debts, if the said Sir John would pay for it one thousand one hundred pounds at such a day, and died, Sir John did not pay the mony at the day; One of the Executors refused Admi­nistration of the Will, the other three entred into the Land and sold it to the Defendant for so much as it could be sold, and in convenient time. It was moved, that the sale was not good, for they have not their au­thority as Executors, but as Devisees, and then when one refuseth, the other cannot sell by 21 H. 3. Cestuy que use Wills, that is Executors shall alien his Land, and dieth, although the Executors refuse the Ad­ministration, yet they may alien the Land. 19 H. 8. 11. 15 H. 7. 12 Eger­ton Solicitor argued, that the sale is good by the Common Law, and also by the Statute 49 E. 3. 16, 17. Devise, that his Executors shall sell his Land, and dieth, and one of the Executors dieth, another refuseth, the third may sell well enough,1 And. 145. and the sale is good. See Br. Devise 31. 30 H. 8. 39 E. 3. Br. Assise 356. And he put a difference where an Authority is given to many by one deed, there all ought to joyn; contrary, where the Authority is given by Will; And if all the Executors severally sell the Lands to several persons, such sale which is most beneficial for the Testator shall stand, and take effect: And here it is found by verdict, that one of the Executors, recusavitonus Testamenti, Ergo, he refused to take by the Devise, for it was devised unto him to the intent to sell, there­fore if he refuseth to sell, he doth refuse to take, and so it is not necessary that he who refuseth joyn in the sale, and although we are not within the express words of the Statute, yet we are within the sense and mean­ing of it. And afterwards it was adjudged, that the Condition, for the manner of it, was good.

LXXIX. Gamock and Cliffs Case. Pasch. 29 Eliz. In the Common Pleas.

Ejectione firmae. EJectione firmae was brought by Gamock against Cliff of the Manor of Hockly, in the County of Essex, and upon the evidence the case was: [Page 61] That the King and Queen, Philip and Mary, seised of the said Manor of Hockley, seased the same to Edmund Terrel for years, exceptis & Reservat. grossis arboribus super praemissis crescentibus & existentibus; Proviso, Conditions. that if the said Lessee his Executors, or Assigns shall do any voluntary Wast in any of the Premisses before demised, that then the said demise shall be void and accounted none in Law; the said King and Queen after that lease grant the Reversion to the Lord Rich and his Heirs, the Lessee cuts down certain great Trees, which at the time of the demise were not great, but little Trees, but after, tractu temporis became great, and at the time of the cutting down were great, upon whom the Lady Rich, Wife and Widow of the said Lord Rich, being Tenant in Dower, the said Manor (inter alia) being assigned to her in Dower, did enter, for the condition broken: It was moved; If the exception did extend to the trees which at the time of the demise were but little trees, but after­wards at the time of their cutting down were become great; for if the exception do extend to such Trees, then upon the matter they were not demised, and if so, then wast cannot be assigned in the cutting down of them, and then by the cutting of them, the condition is not broken: But if the exception shall be construed to extend to such Trees only which were great Tempore dimissionis, then those Trees in which, &c are demised, and by the cutting down of them, the condition is broken. And the Lord Anderson was of opinion, that the exception did extend to Trees, which at any time dimissionis praedict. became great,Where the Tenant in Dower shall take advan­tage of a con­dition. although at the time of the demise they were but little, so as upon the matter, such Trees were never demised, and so the condition doth not extend to them; otherwise it should be if the words had been modo crescentibus & existentibus. Another matter was moved, because if the Lady Rich, be­ing Tenant in Dower, and so in by the Law, not by the party, and so not privy, nor as Assignee, could enter for the condition broken: And the Court was clear of opinion, that because, that the words of the condi­tion are, Quando dimissio praedict. erit vacua, &c. and no clause of reentry is re­served, so that privity is not requisite, the Lady Rich shall take advan­tage of the condition, 11 H. 17. Where the words of a Lease are, that upon the not going to Rome, that the Lease shall cease; it was holden that the Grantee of the Reversion by the common Law should take advantage of such a condition; contrary where the condition is con­ceived in words of re-entry, 21 H. 7. 12. It was moved further, that here is not any voluntary wast in the Lessee as to the condition,Dyer 281. Owen 93. because done by a stranger, and not by the Lessee himself, and for that the condition is not broken, only the Lessee is subject unto an Action of Wast; other­wise, if the Lessee had expresly commanded the Vendee to cut them down, or had given to him express authority. The sale was, All his Woods growing, &c.

LXXX Gill and Harewoods Case. Pasch. 29 Eliz. In the Common Pleas.

GIll brought an Action upon the Case against Harewood, and declared,Assumpsit. that where the Defendant was endebted to the Plaintiff in such a [...]um, and shewed how; the Defendant in consideration that the Plain­tiff, per parvum tempus deferret diem solutionis, &c. did promise to pay, &. And, upon Non Assumpsit pleaded, it was found for the Plaintiff, and it was moved in arrest of Iudgment, that here is not any consideration, for no time is limited for the forbearance, but generally, parvum tempus, which cannot be any commodity to the Defendant, for the same may be, but punctum temporis, &c. But the exception was not allowed, for the Debt in it self is a sufficient consideration.

LXXXI. Pasch. 29 Eliz. In the Common Pleas.

2 Co. 74. 5 Co. 38. 8 Co. 155. FEnner Serjeant would have drawn a Fine which was by Dedimus Potestatem, and the Fine was to two, and their heirs, but the Court would not receive such Fine for the incertainty of the Inheritance, which always in case of Fine ought to be reposed in a person certain, and not left to uncertainty of the Survivor, and the said Serjeant prayed presently, that the said Fine be received at the peril of the Conusees, but the same was denied him by the whole Court.

LXXXII. Mascals Case. Mich. 29, & 30 Eliz. In Communi Banco.

Covenant. 2 Cro. 644. MAscal leased a House to A. for years by Indenture, by which A. covenanted with Mascal to repair the House Leased, and that it should be lawful for Mascal his Heirs and Assigns to enter into the House to see in what plight for matter of Reparation the said House stood, and if upon any such view, any default should be found in the not re­pairing of it, and thereof warning be given to A. his Executors, &c. Then within four months after such warning, such default should be amended: the House in the default of the Lessee became ruinous: Mascal granted the Reversion over in Fee to one Carre, who upon view of the House gave warning to A. of the default, &c. which is not re­payred, upon which Carre, as Assignee of Mascal, brought an Action of Covenant against A. It was moved by Fenner Serjeant, that the Action did not lye, because the House became ruinous before his interest in the Reversion; But the opinion of the whole Court was against him, for that the Action is not conceived upon the ruinous estate of the House, or for the committing of Waste, but for the not repayring of it within the time appointed by the Covenant, after the warning, so as it is not material within what time the House became ruinous, but within what time the warning was given, and the default of the Reparation did happen.

LXXXIII. Mich. 29, & 30 Eliz. In Communi Banco.

Dower.IN a Writ of Dower, brought by a Woman of the third part of cer­tain Lands, &c. The Tenant pleaded; That the Lands of which Dower is demanded, are of the nature of Gavel-kind, and that the custom of such Land is, that Dower ought to be demanded of the mo­ity of it, and not of the third part, upon which the Demandant did demur: And the opinion of Windham and Anderson Iustices was; That such a Woman of such Land might at her pleasure demand her Dow­er either according to the Custom,1 Cro. 825. Poph. 133. or according to the common Law; for by Anderson, the common Law was before the Custom, quod quaere, And by Windham, if the Demandant here recover her Dower accord­ing to the common Law, yet if she taketh another Husband, she shall lose her Dower as if she had been endowed according to the Custom. Coke, an Apprentice the of Inner Temple being at the Bar, when this Case was moved, said unto Serjeant Shuttleworth, that the Case had been adjudged against the Demandant, and Scot Prothonotary did affirm, that the Lord Dyer was of opinion, that the Woman ought to be endowed according to the Custom, and not otherwise. And Sayer one of the Clarks of Nelson, [Page 63] chief Prothonotary said, that it was adjudged accordingly, 16. Eliz. and that the Case was betwixt Gelbrand Demandant, and Hunt Tenant.

LXXXIV. Beverlie and Cornwals Case. Mich. 29 Eliz. In the Common Pleas.

BEverlie brought a Quare Impedit against Cornwal, Quare Imped. 2 Roll. 805. Out-lawry pleaded. and had Iudgment to recover upon a Demurrer in Law: Which see Mich. 28, & 29 Eliz. And now the Queen brought a Scire facias upon the matter, That the said Beverly after the said Iudgment was out-lawed in an Action of Trespass at the sute of I. S. and upon that a Scire facias issued, ad respon­dendum Quare dicta Domina Regina, should not have execution of the Iudg­ment aforesaid, by reason of the Out-lawry aforesaid, and declared in all as aforesaid: And further, that the said Cornwal had resigned. Vp­on which Beverlie did demur in Law. And this Term it was argued by Puckering Serjeant for the Queen, that by that Out-lawry the Interest to present is tranferred to the Queen. Which see 5 H. 5. 3. Tenant at will of a Manor, to which an Advowson is appendant, is out-lawed in an Action of Trespass; the Church voided; by award of the Court it belongs to the King to present: And see 8 R. 2. scil. Quare Imped. 200 A. seised of an Advowson, the Church becomes void. A. is Out-lawed in a personal Action; the King shall have a Quare Impedit in that Case. And as to the Exception taken, because the Out-lawry is not suffici­ently layed in the Writ, but only generally, viz. utlagatus in Com. Lincoln, ad sectam. J.S. in placito transgressionis, without shewing the Out-lawry at large There is a difference where an Out-lawry is pleaded by way of [...]r, and disability of the person, &c. and where it is set down in a Writ, for a Writ ought shortly and compendiously to comprehend the cause of the Action, especially judicial Writs which are not tied to any form cer­tain, especially because that the Out-lawry set forth in the Writ is a Record of the same Court: For the perclose of the Scire facias is, prout per recordum hic in curia plenius apparet: And that Record being in the Court the party cannot plead Nul tiel record, as if the Record had been in any other Court: But he ought to demand Dyer of the Record: Which vide 5 H. 7. 24. Walmesley Serjeant contrary. By Out-lawry in an Ac­tion personal, the King cannot seise Land, but only take the profits of it, 9. H. 6. 20. 21 H. 7. 7. And as our case is, nothing doth accrew to the Queen by this Out-lawry, for the Queen her self is seised of the Ad­vowson, because she, usurpando presentavit, and her Clerk admitted; and although Beverlie hath recovered in a Quare Impedit against the Presentee of the Queen; yet because he is not removed by a Writ to the Bishop, the Queen continues Patron, and nothing remains in Beverlie that may be forfeited. But Rhodes and Periam contrary, for by Periam if after such Recovery the Incumbent dieth, the Patron shall present, for by the Iudgment in the Quare Impedit for Beverlie, the Patronage is rev [...]ted in him without any other execution: And by Rhodes, If after such Iudg­ment the Patron dieth, his Executors shall have a Writ to the Bishop. And by Walmesley, the Scire facias doth not lie for the Queen, for that Writ always runs in privity of the Record upon which it is grounded, to which Record the Queen is a stranger, and by Out-lawry in an Action personal no Action real shall escheat, and therefore this Scire facias being in the nature of a Quare Impedit upon which it is grounded, which is a real Action, or at least a mixt, shall not be forfeited; and also it shall be absurd to grant now a Writ to the Bishop for the Queen; whereas Iudgment was given against the Queen, as in our case it hath been. And in no Case the Iudges shall respect the title of the Queen, being a stranger to the Writ: But where a title for the Queen doth appear [Page 64] upon the pleading or otherwise within the Record, 11 H. 4. 224. by Hank­ford. If a clear title for the King be confessed by the parties upon plead­ing, a Writ to the Bishop shall issue for the King; so if such matter appear in Evidence,3 Cro. 427. &c. the Land in question is seisable into the Kings hands. See 9 H. 7. 9. 16 H. 7. 12. so 21 E. 4. 3. by Choke and F.N.B. 38. e. In a Quare Im­pedit betwixt two strangers if title doth appear to the Court for the King, a Writ to the Bishop shall issue forth for the King; but in our Case nothing is within the Record to intitle the Queen, but all the matter upon which a Writ to the Bishop is prayed for the Queen is out of the Record, and a foreign thing. And as to the Out-lawry, he conceived it is not sufficiently alledged; for he ought to have made mention of the Exigent and of all the proceeding upon it, and the Iudgment of the Coroners, and for defect of that no title is given to the Queen; and of that opinion was the Lord Anderson, and that it ought to be set forth in the Writ in what Term the said Beverly was out-lawed, and the Number Roll also, so that if Beverly had demanded Dyer of the Record, the Court might know it: And by Nelson chief Prothonotary, the Term in which the Out-lawry was, ought to be com­prised in the Scire facias. Vide Book of Entries 485. where in a Quare Impedit for the King upon such a title, the King shewed in his Count, that A. was seised of such an Advowson, and granted the next Avoidance to B. and that afterwards one C. impleaded the said B. in a Writ of Account in such a Court, where Nihil was returned upon the summons, upon which issued forth a Capias, upon which is returned, Non est inventus, &c. upon which an Exigent, upon which the Sheriff did return, quod ad com. tent. &c. & ad v. comitat. tunc prox. praecedent. the said B. exactus fuit, & non com­paruit, & quia ad nullum eorundem comitat. apparuit, utlagatus fuit, and after the the Church voided, and that by reason thereof it did belong to the King to present: vide ibid. 196. accordingly. And as to the Scire facias all the Iudges agreed, that upon the matter the Writ lay well enough: And it is good discretion in the Court to grant such a Writ: And by Rhodes, If two Coparceners of an Advowson make composition to present by turns, and afterwards one of them dieth, her Heir within age, and in Ward to the King; The Church voideth, and the King is disturbed in his presentment, he shall have a Scire facias upon such com­position, notwithstanding that he be a stranger to it: See F.N.B. 34 H. And by all the Iustices, if one recover in Debt upon a simple contract, and before execution the Plaintiff is out-lawed in an Action personal, the King shall sue execution: And see 37 H. 6. 26. Where in Debt upon an Ob­ligation it was surmised to the Court, that the Plaintiff was out-law­ed: And the Kings Attorney prayed delivery of the Obligation, &c.

LXXXV. Moile and the Earl of Warwicks Case. Mich. 29, & 30 Eliz. In Communi Banco.

Quare Impedit. A Quare Impedit was brought by Walter Moile against Ambrose Earl of Warwick, and the Archbishop of Canterbury. And now came the Ser­jeanes of the Queen, and shewed an Office, to entitle the Queen to have a Writ to the Bishop, containing such matter, viz. That one Guilford was seised of the Manor of D. to which the Advowson of the Church was appendant, and that Manor was holden in chief by Knights service, and that Guilford and his Wife levied a Fine there­of to the use of themselves for their lives, the remainder over in tail to their eldest Son, and that Guilford is dead, but who is his next Heir, ignorant: And it was shewed by the Council of the other side, that the truth of the Case was, that the said Guilford was seised of the said Manor in the right of his Wife, and so levied the Fine, in which Case the said coveyance is not within the Sta­tute [Page 65] of 32 H. 8. for it was for the advancement of the Husband, not of the Wife, which Anderson granted. Vide Dyer 19 Eliz. 354. Caverlies Case, but that is not in the Office: And it was moved at the Bar, that the Office is imperfect, because no Heir is found. But Anderson, the Office is sufficient for the King to seise, although it be insufficient for the Heir, &c. And it was agreed by the whole Court,Office trove. that the Court ought not to receive the Office, although one would affirm upon oath, that it is the very Office, but it ought to be brought in under the Great Seal of England; and also the Court shall not receive it without a Writ; and yet Nelson Prothonotary said, that the Statute of Huy and Cry of Winches­ter was brought into the Court without a Writ under the great Seal,A Record not to be brought into Court without a Writ. 63. and that was out of the Tower: And in that Case also the Iustices held, that if a Record be pleaded in the same Court where it abides, the other party against whom it is pleaded may plead Nul tiel Record, as if the said Record had bin remaining in another Court, which all the Prothono­taries denied, & that always it had been used to the contrary. At another day the Case was moved again. The Plaintiff in the Quare Impedit count­ed, that Richard Guilford was seised of the said Manor, &c. in the right of Bennet his Wife, and so seised, they both levied a Fine thereof to a stran­ger, Sur Conusans de droit come ceo, who rendred it to the Husband and Wife for their lives, the remainder to the Heirs of the body of the Husband, the remainder to the right Heirs of the Husband; and they so being sei­sed, the Husband alone levied a Fine to a stranger, Sur Conusans de droit come ceo, &c. and by the same Fine the Conusee rendred to the Husband and Wife in tail, the remainder to the Heirs of the body of the Husband, the remainder to the right Heirs of the Husband, the Husband died sei­sed, the Wife entred and leased the said Manor to the Plaintiff, and then the Church did become void: And now the Queens Serjeants came and shewed unto the Court an Office, which came in by Mittimus: In which Writ the perclose is, Mandamus vobis quod inspectis, &c. pro nobis fieri faciatis quod secundum leges & consuetudinem Regni nostri Angliae faciend. Statuetis; And the Office did purport, that the said Richard was seised of the said Manor, and held the same of the Queen, as of her Castle of Dover, by Knights service in chief, and levied the Fine, ut supra, and that the said Richard died, sed quis sit propinquior haeres dict. Ric. penitus ignorant; and upon that Office prayed a Writ to the Bishop for the Queen: And two Excep­tions were taken to the Office, First because it is not found by the said Office that the said Richard died seised,1 Cro. 895. in which Case it may be for any thing that appeareth in the Office, that the said Richard after the said Fine had conveyed his estate in the said Lands unto others, or that he was disseised, &c. See 3 H. 6. 5. If it be not found of what estate the Tenant of the King died seised, the Office is insufficient. But see there by Martin, that such an Office is good enough for the King, but not for the Heir to sue his Livery upon it. And by Anderson, Pe­riam, and Rhodes, that defect in the Office is supplyed by the Count, for there it is expressly alledged, that the said Richard died seised. Second­ly, because no Heir is found by the said Office. To which it was said by the Lord Anderson, that peradventure at the Common Law the same had been a material Exception. But we ought to respect the Statutes of 32 and 34 H. 8. of Wills. And therefore as to the Wife the Queen is entitled to Primer seisin, because the conveyance was made for her ad­vancement. And by Windham, the Queen in this Cale shall not have Primer seisin, for by the Statute the Queen shall not have Primer seisin, but in such Case, where, if no conveyance had been made, the Queen should have had Primer seisin; but in this Case for any thing that appears before us, if this conveyance had not been made the Queen should not have had Primer seisin, forasmuch as no Heir is found, and if he died without Heir there is no Primer seisin, because there is not any in rerum natura to sue livery. Rhodes, Periam, and Anderson contrary; Admit­ting [Page 66] that Richard died withou Heir, the Queen shall have Primer seisin a­gainst the Wife of Richard, notwithstanding the escheat. Walmesley Ser­jeant, If the Tenant of the King by Knights service in chief dieth sei­sed of other Lands holden of a common person by Knights service, without Heirs, the King shall not have Primer seisin of such Lands hol­den of a Subject, which Windham granted: But by Anderson the Lord is put to sue an Ouster le mayne of the Land holden of him. And afterward Exception was taken to the Count, because the Plaintiff hath not a­verred the life of the Tenant in tail, that is, of Bennet the Wife of Richard, to whom the Land was entailed by the second Fine: But that Exception was disallowed by the whole Court, and a difference put by Anderson, Where a man pleads the grant of an Advowson in gross by Tenant in tail, in such case the life of the Tenant in tail ought to be averred, for by his death the grant ceaseth. But where a man pleads the Lease of Tenant in tail of a Manor with an Advowson appendant, in such case such averment is not necessary: So accordingly Smith & Staple­tons Case, 15 Eliz. 431. And here it was moved, if, in as much as by the first Fine an estate for life was rendred to the Wife, and by the second Fine, in which she did not joyn, an estate tail was limited unto her, and now when the Husband dieth if he shall be remitted to her estate for life;Co. 1 Inst. 357. 2 Cro. 489. which Windham granted; for that was her lawful estate, and the second estate tortious. But by Rhodes, Periam, and Anderson the Wife is at liber­ty to make her election which of the two estates she will have. And as to the Writ to the Bishop for the Queen, the Court was clear of opinion, that it ought not to be granted upon this matter: But all the question was, if Regina inconsulta, the Court would or ought to proceed: And it was holden clearly by the whole Court, that the tenure alledged modo & forma, could not be a tenure in chief, for it is said, that the Land was holden of the King, as of the Castle of Dover, in Capite.

LXXXVI. Mich. 29 & 30 Eliz. In Communi Banco. Intr. Pasc. 28 Eliz. Rot. 602.

Wast. [...] Cro. 40. 4 [...].WAst was brought by F. and his Wife agaist Pepy, and counted, that the said Pepy was seised, and enfeoffed certain persons to the use of himself for life, and afterwards to the use of the Wife of the Plaintiff and her Heirs. The Defendant pleaded, that the said Feoffment was unto the use of himself and his Heirs in Fee, &c. without that, that it was to the uses in the Count; Vpon which they were at issue: And it was found by verdict, that the said Feoffment was unto the uses con­tained in the Count: But the Iury further found, that the estate of the Defendant by the limitation of the use was priviledged with the im­punity for Wast, that is to say, without impeachment of Wast. And it was moved, if upon this verdict the Plaintiff shall have Iudgment: And Anderson and Rhodes Iustices, he shall, for the matter in issue is found for the Plaintiff, and that is the Feoffment to the uses contained in the Count; and this impunity of Wast is a forrein matter not within the charge of the Iury, and therefore the traverse of it but matter of sur­plusage. As if I plead the Feoffment of I. S. To which the other pleads, that he did not enfeoff, and the Iury find a conditional Feoff­ment, the Court shall not respect the finding of the condition, for it was not in issue, and no advantage shall ever be had of such a liber­ty if it be not pleaded. 30 H. 8. Dyer 41. In Dower the Tenant pleaded, Ne unques seisi que Dower; the Tenant pleaded, that before the cover­ture of the Demandant, one A. was seised of the Lands, of which Dower is demanded in tail, who made a Feoffment to a stranger, and took the Demandant to Wife, and took back an estate in Fee, and died seised, hav­ing issue inheritable: Now although upon the truth of the matter she is [Page 67] not dowable de jure, yet when the parties are at issue upon a point cer­tain,Hob. 53. Owen. 91. no foreign or strange matter not in question betwixt the parties shall be respected in the point of the Iudgment. But if the Defendant had pleaded it in bar, he might have foreclosed the Demandant of her Dower: Vide 38 H. 6. 27. 47 E. 3. 19. In a Praecipe quod reddat in the default of the Tenant one cause and shewed how the Tenant who made de­fault was but Tenant for life of the Lands in demand, the reversion in Fee to himself, and prayed to be received. The Demandant did counter-plead the receit, saying, the Defendant had fee, upon which issue was joyned. And it was found, that neither the tenant, nor he which prayed to be received, had any thing in the Land; In that case the Court did not regard the matter which was superfluous in the verdict, for they were at issue upon a point certain, that is, whether the Tenant was seised in Fee, for it was confessed of both sides, that he had an estate for life; and with that matter the Iury was not charg­ed, and they are not to enquire of it, and so it was found against the Demandant, for which cause the Receit was granted. 7 H 6. 20. The parties were at issue upon a dying seised, which is found by verdict, but the Iury further find, that the other party made continual claim; this continual claim shall not be regarded in the point of Iudgment, be­cause it was pleaded in avoidance of the descent. Windh. Iustice con­trary, Forasmuch as it appeareth unto us upon the verdict, that the Plaintiff hath not cause of Action, and therefore he shall not have Iudgment; As in Detinue,No advantage of impunity for Wast shall be taken, where the same is not pleaded though found by verdict. Judgment. Hob. 53. Owen. 91. The Plaintiff counteth of a bailment by his own hand; the Defendant pleadeth, that he doth not detain, &c. the Iury find the Detinue, but upon a bailment by another hand: In this case, notwithstanding that the Detinue be found, yet the Plaintiff shall not have Iudgment: But Rhodes, Periam, and Anderson in the principal case were of opinion, Iudgment should be given for the Plaintiff, for in no case the party shall have advantage of such a Liberty of impunity of Wast, if he do not plead it; And the Iurors are not to meddle with any matter which is not in issue: And if it be but matter of surplusage it is to no purpose. And afterwards Iudgment was given for the Plaintiff.

LXXXVII. Bracebridge and Baskerviles Case. Mich. 29 & 30 Eliz. In Communi Banco.

AN Action of Debt is brought against three Executors,Debt against Executors. one of them pleads in Bar a Recovery against himself in the Kings Bench: The other two plead plene administr. Against the first plea the Plaintiff did aver covin; and upon the second plea they are at issue: The first issue is found for the Plaintiff, and as to the other plea, it was found, that the Defendants have in their hands thirty pounds of the goods of their Testator not administred. Note, the debt in demand was one hundred pounds, upon which the Plaintiff had Iudgment to recover the goods of the Testator, and thereupon had execution. Now the Plaintiff brought a Scire facias against the said Executors, supposing that many other goods of the Testator have come unto their hands after the Iudgment, and prayed execution thereof: upon which the De­fendant did demur in Law. Vide 2 [...] H. 6. 40. 41. In debt against Exe­cutors of forty marks, the Defendant pleaded, that he had fully ad­ministred, and it was sound, that the Defendant, at the day of the Writ brought, had of the goods of the dead twenty marks and no more, and gave damges five marks. There the Plaintiff had Iudg­ment for the twenty marks of the goods of the dead, and the five marks of their own goods: And as to the other twenty marks, that the Plaintiff should be amerced: 33 H. 6. 24. Where Executors plead that they have nothing in their hands, which is found accordingly: After­wards [Page 68] goods of the Testator came to the hands of the Executors: Now the Plaintiff upon a surmise shall have out of the same Record a Scire facias to have execution of the said goods:Scire facias, to have Execu­tion of Assets come to Exe­cutors hands, after [...]iens enter maynes plead­ed. But see 4 H. 6. 4. con­trary, for there it is said, that upon the matter the original is deter­mined, and so no Record, upon which a Scire facias can be grounded: And see Fitzh. abridging the Case Scire facias, 25. by the verdict and the Iudgment the Original is abated: Vide 7 E. 4. 9. by Moile, according to 33 H. 6. and so 46 E. 3. 9. by Belknap. And the Lord Anderson demanded of the Prothonotaries the manner of the entry of the Iudgments given in such Cases, who said, that their Entry is in this manner: (i. e.) Quod querens recuperet, that which is expresly found by the verdict, but nothing of the residue, for of that no mention is made at all. And the Court seemed to be of opinion, that where, upon nothing re­maining in their hands, pleaded, It is found that some part of the sum in demand is in the hands of the Executors, there the Plaintiff upon a surmise of goods come to the hands of the Executors shall have a Scire facias; 3 Cro. 272. Hob, 199. 1 Cro. 318. 319 592. 8 Co. 134. contrary, where upon such issue, it is found fully for the Defendants, that they have nothing in their hands.

LXXXVIII. Fordleys Case. Mich. 29 & 30 Eliz. In Communi Banco.

Tender plea­ded. 9 Co. 79. Dy. 25. a. 1 Inst 207. Post. 69. 70. a. FOrdley brought debt upon an Obligation, the Condition was, that if the Defendant, viz. the Obligor deliver unto the Plaintiff the Obligee, at a such a day and place, twenty pounds or ten Kine, at the then choice of the Obligee, &c. that then, &c. The Court was clear of opinion, that the Defendant in pleading the performance thereof ought to tender to the Plaintiff as well the twenty pounds as the ten Kine, and for default thereof Iudgment was given against the Defendant. See the Number Roll T. 29 Eliz. 1. part. 324. vide 14 E. 4 4. b.

LXXXIX. Barker and Pigots Case. Mich. 29 & 30 Eliz. In Communi Banco.

EDward Barker brought Debt against Rich. Pigot Executor of the Will of E. Executrix of the Will of R. The Defendant pleaded, that he had fully administred the goods of his Testator E. upon which they were at issue,Debt. which was found for the Plaintiff. And it was moved in arrest of Iudgment, that here is not any issue joyned, which answers to the Action, for the Action is brought against the Defendant in the quality of the Executor of an Executor, and the verdict extends to the Defendant, but is Executor of the said E. for it is found by it, that the Defendant hath fully administred the goods of his Testatrix, without any enquiry of the Administration of the goods of the first Testator R. in which capacity the Defendant is charged. So as here the Writ charges the Defendant in the quality of an Executor of an Execu­tor and in respect of the first Testator, and the issue and verdict doth con­cern the last Testator:Execution must follow the nature of the Action. And the whole Court was clear of opinion, that although that now after verdict Fee-tail be saved, and no Iudgment shall be given upon it, yet here the Court shall give Iudgment as up­on a Nihil dicit, in which case the Execution of the Iudgment, shall not fall upon the goods of the last Testator according to the verdict, but shall follow the nature of the Action which was brought against the Defendant as Executor of an Executor.

XC. Thacker and Elmers Case. Mich. 29 & 30 Eliz. In Communi Banco.

THacker recovered in an Assize of Novel disseisin against Elmer certain Lands in Hackney, and had execution:Re-disseisin, and the Judg­ment in it. 1 Cro. 323. Elmer entred upon Thacker and ousted him, and Redisseised him. Thacker re-entred, and afterwards brought a Redisseisin; And it was moved, whether Thacker against his Entry might have a Redisseisin: And the opinion of the whole Court was, that he might well maintain the Writ, for he is not thereby to recover any Land; but the Defendant of that Redisseisin being convict­ed, shall be fined and imprisoned, and render double damages: Vide Book of Entries 502. the Iudgment in a Redisseisin is, Quod recuperet seisi­nam suam of the Land.

XCI. Blaunchflower and Fryes Case. Mich. 29 & 30 Eliz. In Communi Banco.

BLaunchflower brought debt upon a Bond against Elinor Frye, as Exe­cutrix of one Andrew Frye her late Husband, who pleaded,Debt. that this Writ was brought 9 July, 27 Eliz. whereof she had notice the first of October after, within which time one Lawrence had brought an Original Writ against the said Elinor as Administratrix of the said Andrew: And after the bringing of the Writ, the Bishop of Bath and Wels committed Administration of the goods of the said Andrew to the said Elinor, which Elinor confessed the Action, upon which Iudgment was given for the said Lawrence, beyond which she had not goods, upon which the now Plaintiff did demur in Law. And by Anderson, the Recovery pleaded in bar shall not bind the Plaintiff, because it appeareth unpon the plea of the Defendant, that the Administration was committed after the Writ purchased, which matter if the Defendant had pleaded,Administration granted, pen­dant the Writ. Lawrence could not have had Iudgment to recover. As where there are three Executors, and debt is brought against two of them, if they do not plead that matter in abatment of the Writ, but plead, &c. or confess the Action, so that the Plaintiff hath Iudgment to Recover, that Re­covery shall not bind a stranger who hath cause of Action against them, but that he may well falsify it; and yet it was said that in such Case, the Defendant by the obtaining of the Letters of Administration had made the Writ good against her, vid. 13 H. 4. Fitz. Executors, 118. Ad­ministration committed before the Writ purchased shall abate the Writ brought against the Defendant as Executor, but such Admini­stration obtained, depending the Writ shall not abate it, vid. 21 H. 6. 8. 2 R. 3. 20. Another matter was moved by Anderson, because the Defendant had pleaded a Recovery by confession had against her without Aver­ment that it was a true Debt, in which Case Covin is presumed. Wind­ham and Periam were of opinion, that the matter of Covin ought to come in on the part of the Plaintiff, which Anderson denyed, vid. 9 E. 4. 13, 14. 33. t [...]e Cardinalls Case.

XCII. Basset and Kerns Case. Roll. Tit. Electi­on. Debt by Exe­cutors. 1 Cro. 819 In Communi Banco Intrat. Mich. 26 & 27 Eliz. Rot. 12.

BAsset the Executor of Moris Sheppheard brought debt upon a bond against Kerne, the Case was: That Kerne was bound to Moris in a Obligation [Page 70] upon Condition, that the said Kerne should pay to the said Morris his Executors,1 Roll. 446. Tit. Condition. &c. at the choice and election of the said Morris, within a month after the death of the Lady Kerne, thirty pounds, or twenty Kine,Election. to which the Defendant pleaded that the Plaintiff within the month after the death, &c. did not make any choice or election, upon which the Plaintiff did demur in Law: And the Court was clear of o­pinion, that it was a good Plea in Bar, for the Obligor is not boun­den to make a tender of both, viz. of the mony and the Ri [...]e; but the Obligee himself is bounden at his peril to make election within the time limited; As if I be bounden to you, to make unto you such fur­ther assurance within such a time by Fine or Feoffment as you shall chuse, it behoveth you to make election of your assurance, Fine, or Fe­offment; and in the principal Case, the election of the Plaintiff ought to precede the tender of the Defendant: vid. the Lord Lisles Case, 18 E. 4. 15. 17. 20. 21. Where the Defendant was bound to the said Lord to shew his Evidences touching such a House to the said Lord or his Council, the election was to the Defendant to whom he would shew them; and there by Brian, if I be bound to you to marry your Daughter, or to go to York on your Businesses upon request, before you require me to mar­ry your Daughter I may do it, or go to York, which Coke granted, vid. 13 E. 4. 4. Where the condition is in the disjunctive, before the day of performance the Election is to the Defendant, but if at the day he make default, the Election is to the Obligee; vid. 9 E. 4. 36, 37. And by Windham, if I be bound unto you in an Obligation of ten pounds, to pay to you such a day ten pounds in Gold, or Silver, if you do not make your election before the day, yet the duty remains payable, for the thing to be paid is parcel of the penalty, quod fuit concessum; And as to the prin­cipal Case, the Court was clear of opinion, that upon this matter the Plaintiff should be barred. See before this Term, Forteleyes Case.

XCIII Searches Case. Mich. 29 & 30 Eliz. In Communi Banco.

Antea 68. Habeas Corpus. A Habeas Corpus issued forth out of the Court of Common Pleas, to the Steward and Marshal of the House, &c. for one Wil. Search, which was returned in this manner, viz. quod Domina Regina per litteras suas Patentes suscepit, in protectionem suam regiam, Johannem Mabbe, and his sureties, and of her further grace by the said Letters, voluit, that if any person should arrest, or cause to be arrested the said John Mabbe or any of his sureties, that then the Marshal of her House, or his lawful Deputy might arrest every such person, and detain them in Prison un­til such person should answer before the Privy Council for the con­tempt; And that the said William Search caused one John Preston one of the said sureties of the said John Mabbe to be arrested, &c. And upon that return, the said William Search was discharged; And also because that after the said discharge the parties caused the said William Search to be arrested again for the same cause, that is, by colour of the said protecti­on; An Attachment was granted against them.

Note, that the same Term, Mich. 29 & 30 Eliz. Another Habeas Corpus was directed to the Steward and Marshal of the Marshalsey, for one Howel, Habeas Corpus. who made return, that the said Howel was committed to his custody, per mandatum Francisci Walsingham Militis Principalis Secretarij, & unius de privato concilio Dominae Reginae, and that return was by the Court holden insufficient, because the cause upon which he was com­mitted, was not set down in the return; and therefore day was given to [Page 71] amend the return, and now they returned the Writ in this manner, ss. infra nominatus Johannes Howel commissus fuit, &c. ex sententia & mandato totius concilii privati Dominae Reginae; Ita quod corpus ejus habere non possumus, &c. And that return was also holden by the Court to be insufficient, for (by what­soever person, or by what means soever he was committed) the conclu­sion of the return ought to be, Corpus tamen ejus paratum habeo, and if it shall seem good to the Court, that the Prisoner shall have his Priviledge, and shall be dismis't, he shall be discharged, but if not, then he shall be remanded. And the Court took a difference, where one is committed by one of the Privy Council, for in such case the cause of the committing ought to be set down in the return; But contrary where the party is committed by the whole Council, there no cause need to be alleadged.

XCV. Bret and Audars Case. Mich. 29 & 30 Eliz. In Communi Banco.

BRet brought Debt upon an Obligation against Audar, Debt upon a Bond to per­form Award. Owen. 7. the Condition of which Obligation was, that the Defendant should stand to the Award, &c. And the Arbitrator awarded, that the Defendant should pay unto the Plaintiff ten pounds, without naming day or place; And as to that the Defendant pleaded, that he was always ready, and yet is, &c. without shewing any tender: And it was moved, That although that would have been a good Plea in debt upon an Arbitrament, as the Case is, 7 H. 4. 97. See 21 E. 4. 40, 41, 42. Yet now by the Obligation and the Condition of it, the sum is payable in another manner than it was before, see the pleading of the Case, 21 E. 4. In Debt upon an Obligation to perform the Award; That the Award was made be­tween the Terms of Pasch. and Trinity, and he, the eighth of Septem­ber after, tendred the twenty pounds, and the Plaintiff refused it. And the Lord Anderson put a difference between the Case, in 22 H. 6. 57.Tender. and the Case at the Bar, for in our Case the Obligation doth precede the duty which accrueth by the Award subsequent, but in the former Case the duty did precede the Obligation which was made for the fur­ther assurance of the duty: And here the Defendant ought to have pleaded the tender, and see 14. E. 4. 4. A. is bound unto B. that, where he hath granted to the said B. a Rent-charge out of such Land, now if the said B. shall enjoy the said Rent according to the form and effect of the said Grant, that then, &c. there he needs not to plead any tender, for the Rent is not payable in other manner than it was before; contra­ry if the Condition had been for the payment of the Annuity: And of that opinion was the whole Court, that he ought to have pleaded a ten­der. Another matter of the Award was, that the said Audar should yield up, surrender & relinquish to the Plaintiff all such Houses and Tenements which he had in his possession by reason of the custody of the said Plain­tiff: As to that the Defendant pleaded, that he had yielded up, &c. All such Houses, &c. generally without shewing which in certain; And for that cause the Court was clear of opinion, that the Plea was not good; which see 9 E. 4. 16. If I be bounden upon condition to enfeoff the Obligee of all Lands, & Tenements, which were to I.S. in pleading the performance of that Condition, I ought to shew what Lands and Tenements in cer­tain, for they pass out of me by the Feoffment; See also 12 H. 8. 7. 13 H. 8.Non damnifica­tus, generally, where no Plea. 19. Another point of the Award was, That the said Audar should acquit and discharge, and save harmless the Plaintiff of such an Obliga­tion, to which the Defendant pleaded, that Querens non fuit damnifi­catus, and that Plea was holden insufficient, for he ought to have shew­ed, how he had discharged him, and it is not sufficient to answer only to the damnification, as if I be bounden to convey unto you the Manor [Page 70] [...] [Page 71] [...] [Page 72] of B. in pleading the performance of the condition, it is not sufficient to shew, that I have conveyed the said Manor, but to shew by what man­ner of conveyance, viz. by Fine, or Feoffment, &c. 22 E. 4. 43. If the con­dition be to discharge the Plaintiff, &c. then the manner of the discharge ought to be shewed, but if it be to save harmless only, then non damnifi­catus generally is good enough, 40 E. 3. 20. 38 H. 6. 39. The condition of an Obligation was, that the Obligor should keep without damage the Obligee, of such a sum of mony against B. to whom he was bounden for the payment of it, and the said Obligor pleaded that at such a day, &c. the said B. at his request delivered the Obligation to the Plaintiff in liew of an acquittance, without that, that the Plaintiff was damni­fied by the said Obligation, before the delivery of it; and it was holden by the Court, that if the Defendant had pleaded, that he had kept the Plaintiff without damage, and had not shewed how, that the Plea had not been good. See 22 E. 4. 40. The Lord Lisles Case. And after­wards Iudgment was given for the Plaintiff.

XCVI. Heydons Case. Mich. 29 & 30 Eliz.

RAlph Heydon pretending title to certain Land, entred into it, and made a Lease of it to try the title: Vpon which his Lessee brought an Ejectione firmae, in which the parties were at Issue; And now at the day of the Enquest, the Iurors were called, and but five of them ap­peared, whereupon, the Defendant came and shewed to the Court, that the said Heydon by his Friends and Servants, had laboured the Iury, not to appear, and that for the further vexation of the Defendant who had four Verdicts in affirmance of his title, that the said Heydon to procure the Iury not to appear, had surmised to them, that he and the Defendant were in course of an agreement, whereas in truth no such communication of agreement had any time passed betwixt them: And all this was openly deposed in Court, as well upon the oath of the Defendant himself as upon the oath of one of the Iurors, upon which the Court awarded an Attachment against the said Heydon, to an­swer the contempt; And also granted to the Defendant, that he might sue a Decem tales with proviso, for his own expedition.

XCVII. Smith and Kirfoots Case. Mich. 29 & 30 Eliz. In Communi Banco.

Debt upon Ar­bitrament. SMith brought Debt upon an Arbitrament against Kirfoot, and declar­ed that the Defendant and he, imposuerunt se in arbitrium, ordinationem, & judicium Johannis Popham ar. arbitratoris indifferenter electi, de jure, titulo, & in­turesse in quibusdam Messuagijs, &c. Who taking upon him the burthen of the Arbitration, ordinavit, that the said Defendant should pay unto the Plaintiff ten pounds, in plenam satisfactionem, &c. and thereupon he brought his Action; It was moved by Walmesley Serjeant, that the Declaration is not sufficient, for it appeareth that the Arbitrament set forth in the Declaration is utterly void; because whereas ten pounds is awarded to the Plaintiff, nothing is awarded to the De­fendant, and so the Award unequal, and so void. But the Court was clear of opinion, that notwithstanding that such an Arbitrament be void in Law, yet it may be for any thing that appeareth, that the a­ward is good enough:1 Cro. 904. [...] Cro. 354. 355. For the Plaintiff is not to shew in his Declaration all the Award, but such part only of it which doth entitle him to the [Page 73] thing, &c. and if the Defendant will impeach the Award for any thing, that is to come in on his part, vide. ac. Book of Entries, 152. 123. vide. For the Arbitrament, 39 H. 6. 12. by Moile, 7 H. 6. 41.

XCVIII. Arundel against Morris. Mich. 29 & 30 Eliz. In Communi Banco.

RIchard Arundel sued an Audita Querela against Morris, and it was compre­hended in the Writ; That Morris had recovered against him a cer­tain Debt, and that he was taken by a Capias ad satisfaciendum; Audita Quere­la. at the suit of the said Morris, by Hickford Sheriff of the County of Gloucester; who let him go at large, &c. And they were at issue, upon the voluntary escape, & it was found for the Plaintiff. It was objected in arrest of Iudgment, that the Writ of Audita Querela is not good, for the words are, that the Plaintiff, captus fuit virtute brevis nostri judicialis; whereas this word (judicialis) is not in the Register; but only brevis nostri de capiendo. But by the whole Court, the Writ is good, for the word (judicialis) is but a word of surplusage, and shall not make void the Writ: And afterwards Iudgment was given for the Plaintiff.

XCIX. Brook against King. Mich. 29 & 30. Eliz.

IN Debt upon an Obligation by Brook against King, the Defendant pleaded that the Bond was endorced, with such condition, viz. Debt. That it the said Defendant King shall procure one I.S. to make reasonable re­compence to the Plaintiff for certain Beasts which he wrongfully took from the Plaintiff, that then, &c. And he said in facto, That the said I. S. had stolen the said Beasts from the Plaintiff,Condition a­gainst Law. and thereof he was endict­ed, &c. and so the condition being against the Law, the Obligation was void, upon which the Plaintiff did demurr in Law. And it was argued by the whole Court: That where the condition of an Obligation shall be said against the Law, and therefore the Obligation void, the same ought to be intended where the condition is expresly against the Law in express words, and in terminis terminantibus, Post. 103. and not for matter out of the condition, as it is in this case; And Iudgment was given for the Plaintiff.

C. Hawks against Mollineux. Mich. 29 & 30 Eliz. In Communi Banco.

IN a Replevin by Hawks against Mollineux who avowed for Damage­fesant; The Plaintiff in Bar of the Avowry, pleaded that Sir Ger­vase Paston Knight, was seised of a Messuage and twenty Acres of Land; And that always those whose estate,Replevi [...] Yelv. 185. Prescription. &c. have used to have Common in the place where, &c. for all their Cattel commonable in this manner, viz. If the said Land be sowed by assent of the Commoner, then no Common, until the Corn be mowed, and when the Corn is mowed, then Common until the Land shall be sowed again by assent of the Com­moners: And this Prescription was found by Verdict, and exception was taken to this prescription because against common right, so as a man cannot sow his Land without the leave of another. But the ex­ception was disallowed by the Court; for the prescription was holden to be good by the whole Court, for by the Law of the Land, the Owner of the Land cannot plow the Land where another hath Common; but here is a benefit to each party, as well for the Owner of the Land a­gainst the Commoner, as for the Commoner against the Tenant of the Land, for each of them hath a qualified Interest in the Land.

CI. Baldwin and Cocks Case. Intr. Pasch. 29 Eliz. Rot. 1410. In Communi Banco.

Replevin. Owen 52. Post. 225. 1 Inst. 225. 2. BAldwin was Plaintiff in a Replevin against Cocks, and upon the plead­ing the Case appeared to be this, That Sir Richard Wayneman was seised of the place where, &c. and leased the same to one Truepeny and one Eliz. Reade for term of 21 years, if the said Truepeny and Eliz. or any child or children betwixt them begotten should live so long; Eliz. within the term died without issue; If now the term for 21 years be determin­ed was the Question. And the Lord Anderson conceived, that the estate for years is not determined by the death of Elizabeth. And it was argu­ed by Shuttleworth Serjeant, that upon the matter the term is determin­ed: And he put the Case of the Lord Bray, 3 Eliz. Dyer 190. Where the Lord Bray sold unto four great Lords the marriage of his Son and Heir, to the intent to be married at the appointment and nomination of the said Lords, the Lord Bray died, one of the said Lords before any marri­age,5 Co. 9 1 Brown. 31. 46, 47. 80. 101. 2 Br. 83. 148. or appointment, or nomination, died, the Son is married by the appointment, &c. of the surviving Lords; That marriage is not within the intent of the Covenant, and adjudged that upon that marrriage no use shall accrue. And also he cited this Case adjudged in the Kings Bench. The administration is committed to one durante minore aeta [...]e of two Infants, one of them becomes of full age, the power of the Ad­ministration is determined, which Walmesley Serjeant granted, for it is but an authority; but here in the Case at Bar is a matter of inter­est. And by Anderson all the construction of this lease and grant rests up­on this point, if this word (Or) either shall be taken as disjunctive as it is in its nature, or as a conjunctive; and if it be taken as a disjunctive, if it make the whole sentence in the disjunctive as if the limitation had been, if the Husband or Wife or any Child, &c. And Fenner, put this Case out of 17 E. 3. as he cited it. Land is given to I. S. in Fee so long as A. B. hath issue of his body. A. B. dieth without issue, his Wife priviment en [...]ent, Now the estate is determined, and upon birth of the issue after shall not revive, which Rhodes and Anderson denied, for in many Cases the Law shall respect the existency of the child in the mothers belly: And see 7 Eliz. Plow. 289. where a Copulative shall be taken in the dis­junctive, as a covenant with B. to make a lease for years of such Lands to the said B. and his Assigns,Exposition of words in deeds. 244. Post. 251. 1 Roll. 444. the same shall be construed, or his Assigns. And it was clearly agreed by the other parties, that if the words had been, If Truepeny, Elizabeth, or any child or children, &c. so long, &c. upon the death of any of them the interest is determined: And by Rhodes, Periam and Windham in the principal Case, the lease shall endure as long as any of the persons named in the Proviso shall live, and so seemed to be the meaning of the parties. And Anderson haesitavit in the words of the limitation, i. the Habendum to the said Truepeny and Eliz. for 21 years a festo Sancti Johannis Baptist. post terminum annorum (the expiration of a former term) if the said Truepeny and Elizabeth, or any child &c. And he conceiv­ed, that the limitation did go to the commencement of the lease only, and not to the expiration or determination, as if the lease should not begin if they all were not alive at the commencement of the lease: And all the other Iustices were clear of the contrary opinion, for by them this limitation shall go, and shall be referred to the determinati­on of the Lease, and not to the commencement of it.

Anderson, If any cause should be, for which the lease should endure untill the years be encurred, notwithstanding the death of the Husband or Wife, it was because the lease was intended a common advancement to both, [Page 75] for it should be in vain to name the Wife in the lease, if the lease should cease by the death of the Husband. And afterwards after many argu­ments on both sides, it was adjudged, that by the death of Elizabeth, the lease was not determined, for the disjunctive before (Child) makes all the limitation in the disjunctive.

CII. Zouch and Bamfields Case. Mich. 29 & 30 Eliz. In Communi Banco.

THe Case between the Lord Zouch and Bamfield was now argued by the Iustices. And Rhodes the puisne Iustice argued,1 And. 165. 3 Co. 88. that the Lord Zouch the Demandant should be barred. Four Exceptions have been taken to the bar: First, because it is not shewed in the bar that the moyety of those sixty messuages, &c. of which he pleads the Fine, was parcel of the Manor at the time of the Fine levyed; for the pleading is, that the Grandfather of the Demandant was seised of the said Ma­nor, unde medietas praedictorum 60. messuagiorum, &c. a tempore cujus contrar. me­moria, &c. was parcel, and so seised de manerio praedict. unde, &c. Finis se leva­vit; and he conceived that the pleading, notwithstanding that was good enough; for he hath said as much in effect, contrar. cujus memoria homi­num non existit, in the present tense, which amounts to this, that men cannot remember, &c. but that this moyety was parcel of the said Ma­nor: As 10 H. 7 12. In an Assise of Common, the Plaintiff makes his title, that he was seised of a Messuage and Carve of Land in D. to which the said Common is appendant, and that he and all his Ancestors, and all those whose estate he hath, &c. have used to have Common, &c. Exception was taken to the title, because the Plaintiff doth not shew in his title, that he is seised of a Messuage, &c. for if he hath aliened the Messuage the Common passeth, so if he be disseised, &c. but the Excep­tion was not allowed, for it appeareth upon the words of the title, that the Plaintiff is seised: i. all those whose estate he hath in the pre­sent tense, which words do shew and declare possession and seisin in the Plaintiff, the time of the plea pleaded; so in this case, the substance of the words, in which the defect is assigned, is ut supra; That men cannot remember, but that this moyety was parcel of the Manor, and then the words after, unde, &c. reddidit Manerium praedict. unde, &c. shall have the same construction as before. Periam conceived, that the Bar is nought for the cause aforesaid, for it is not so pleaded, that we can adjudge upon it, that the said moyety was parcel of the Manor at the time of the Fine levy­ed, and then the Fine cannot extend unto it. And the reason alledged by my brother Rhodes shall not help that matter, for the said words can­not be construed otherwise, but that no man can remember but the said moyety was parcel, but not that it is parcel, or at the time of the Fine levyed was parcel. Vide 32 H. 6. 24. In Trespass the Defendant pleaded, That A. was seised of the Manor of D. whereof the place, &c. is parcel, he ought to say expresly, that the place where was parcel of the Manor at the time of the trespass supposed. Windham conceived, that the plea was good, and that it appeareth well upon this plea, that the said moyety was parcel of the said Manor at the time of the Fine levyed, for he pleads, that the Grandfather of the Demandant was sei­sed of the Manor of N. Unde medietas praedictorum, &c. a tempore cujus contrar. memoria hominum non existit, & sic scisitus existens, Finis se levavit; sic scisitus; i. e. sei­sed of the Manor in such sort, as the Manor is set forth before, and that is good pleading, especially by way of bar, which if it be good to a common intent, is well enough; and the word (unde, &c.) so often repeated after shall be idle and to no purpose if the Law shall not give such a construction. Anderson to the same purpose. And he much [Page 76] relyed upon the reason of Windham, and so seised. Another Exception was taken to the Bar,Averrment. because in pleading of the Fine, it is not averred, that the Conusor at the time of the Fine levyed was of full age, out of prison, &c. And as to that Rhodes took the difference between the plead­ing upon the Statute of 1 H. 3. where these disabilities are within the purview of the said Statute, and upon the Statute of 4 H. 7. where in the body of the Statute no mention is made of them, but afterwards in an especial Exception by it self; and he cited the opinion of the Iusti­ces, especially of the Lord Dyer in the Case reported by Plowd. 5 Eliz. 365. betwixt Stowel and the Lord Zouch. Periam to the same intent, and upon the same reason, and further he said that although the Statute of 32 H. 8. contains in its purview the same disabilities; Yet this Fine is plead­ed upon the Statute of 4 H. 7. and therefore the pleading of the same shall not be directed nor waged by the Statute of 32 H. 8. which doth not alter the pleading of a Fine which was before, nor the reason of it; for it is not properly a Statute, nor do Fines receive any strength or virtue by it, but is but a construction of the said former Statute. And he put the Case betwixt Hide and Umpton; where Umpton mean betwixt the Statutes of 32 and 34 H. 8. Declared his Will of all his Lands, which devise if it be good for two parts of the Land devised it was doubted, or that the devise should be void for the whole; afterwards came the Stat. of 34 H. 8. and cleared the doubt, for to that intent it was made; and in the said Statute there is a Proviso, that the said Statute shall not ex­tend to the Will or the Devise of Tho. Umpton, or shall be prejudicial or hurtful to any person or persons for any Lands &c. contained or specified in the said Will or Devise, but that the said Will and Devise shall stand, remain and be in the same case, in force and effect in the Law, as the same was before the making of this Act. Now, notwithstanding that Proviso, the Will of Umpton was holden good but for two parts, for so the Statute of 34. H. 8. construed the Statute of 32 H. 8. So in our Case, the Statute of 32 H. 8. of Fines construes the Statute of 4 H. 7. to extend to Fines levyed by Tenant in tail, therefore the estate tail shall be adjudged in Law to be bound by the Statute of 4 H. 7. and not by 32 H. 8. which is rather a Iudgment upon the said Statute of 4 H. 7. than any new Statute. Windham to the same intent, and he relyed upon the reason aforesaid. And further said, if one will plead a Lease made by Tenant in tail upon the Statute of 32 H. 8. he need not to a­ver the full age of the Lessor, and yet that quality of full age is within the purview of the said Statute. First all Leases to be made, &c. by any person being of full age, &c. and so is the common use of pleadings. And of the same opinion was the Lord Anderson for the said Exception, for the reasons, and upon the difference aforesaid. Another Exception was taken to the Bar, because it is not alledged, that the said Fine was engrossed in the same Term in which it was levyed. And as to that, it was holden by Rhodes, that in pleading of a Fine it needs not to shew any engrossing of it; and so are many Presidents, vide Plowd. Com. Smith and Stapletons Case, 15 Eliz. 428. Where a Fine was plead­ed, Quaedam finalis concordia facta fuit in Octav. Sancti Hillarii 35 H. 8. & postea a die Pasch. in quindecem dies 36 H 8. concessa & recordata, &c. Super quem finem pro­clam. secundum formam Statuti factae fuer. viz. prima proclam. 7. Maii. Term. Pasch. 36 H. 8. without any mention of the engrossing of it: And see the Case betwixt Stowel and the Lord Zouch, where the Fine is pleaded as it is pleaded in the Case at Bar, quiquidem finis in forma praedict. levatus (and that fine was levyed Pasch. 30 H. 8.) ingrossatus fuit, & postea in Curia praedict. secun­dum formam Stattui, &c. lectus, & proclamatus fuit, viz. prim. proclam. Term. Pasch. 30 H. 8. And so upon the matter it is sufficient to shew, that the Fine was engrossed the same term in which it was levyed, for the Fine is pleaded to be levyed Term. Pasch. qui quidem Finis ingrossatus fuit, & postea pro­clam. viz. prim. proclam. Termino Pasch. which was the same Term it was [Page 77] levyed: And so, admit, that in pleading it ought to be shewed that the Fine was ingrossed in the same Term in which it was levyed, &c. Now it appears here to us by necessary consequence, that the Fine was in­grossed accordingly. And also the Ingrossment is pleaded as the Sta­tute is penned, for the words of the Statute of 4 H. 7. are, after the en­grossing of every Fine, the same Fine to be openly read and proclaimed in the same Court, the same Term, and so the words of our plea here pursue the words of the Statute; for the said Statute doth not require by express words, that the Fine be engrossed the same Term, but the same is to be conceived by matter of construction and implication, and according to such manner of speech this plea is pleaded. And of the same opinion was Windham, and upon the same reason Anderson conceived, that the Tenant in pleading of the Fine ought to shew in express words, that the Fine was engrossed the same Term in which it was le­vyed; for whosoever in pleading a plea will take the benefit of the Sta­tute ought precisely to follow the Statute in all points; and it is clear, that if the Fine be not engrossed, according to the Statute, that then it is not any bar by the Statute, and therefore it ought to be expresly al­ledged according to the Statute, and not by implication only.

Another Exception was taken to the Bar (as was remembred by Windham) i. pro ut per finem hic in Curia de recordo remanen-plenius apparet; with­out saying, & per proclamation. inde, &c. But that Exception was dis­allowed by Periam and Windham, for the Fine had been good and well pleaded, without any such conclusion, pro ut, &c. And also the proclama­tions are endorsed upon the Fine, and then they appear upon the Fine, according to the words of the said conclusion. And so by Windham are many Presidents, and so in the said Case between Stowel and the Lord Zouch cited before, pro ut per finem illum hic de record. remanen. plane liquet. And See 1 Eliz. Plowden 224. between Willion and Barkly, a Fine plead­ed without any pro ut, &c. Anderson took an Exception to the Bar at the beginning of it, i. Quod medietas 60 Messuagiorum, &c. parcel. medietatis 70 Messuag. praedict. that that is no good pleading; for one moyety can­not be parcel of another moyety, for every moyety is entire.

Rhodes took Exception to the Replication, because the Demandant in avoidance of the Fine, that at the time of the Fine levyed Bamfield was seised, & semper postea, & hucusque, &c. of the moyety in Demesn, and doth not traverse the seisin of the Conusor at the time of the Fine le­vyed, for here two contrary pleas stand before us in equity of truth; aeque vera, aeque falsa, aeque dubia, and a traverse would have made an end of all, and reduced the matter to certainty: And by Periam, the Bar is not answered, for every Bar ought to be traversed, confessed, or avoid­ed, See 6 H. 7. 5, and 6. where it is said by Hussey and Fairfax, where matter in fact is alledged by way of Bar it ought to be traversed, if it be not for the mischeif of tryal, as in case of Basterdy, where a thing is alledged to be done beyond the sea; or to leave the matter in Law to the Court, without putting the same to the Iudgment of the Lay-people, &c. See also 5 H. 7. 12. Where it is holden, that a thing mate­rial alledged in the Bar ought to be directly traversed, or confessed, or avoided in fact or in Law, or conclude the other party by matter of estop­pel: And that two affirmatives cannot make a good issue; But the mat­ter alledged in the Replication scil. that Bamfield was seised at the time of the Fine levyed shall be holden for void, and the matter alledged in the Bar, scil. that the Counsor was seised, as not answered; for it shall be taken true, until it shall be avoided and destroyed by matter in Law, traverse, &c. Vide Librum. So he in default of traverse, the Bar is not answered but argumentative, scil. Bamfield was seised, ergo, the Conu­sor was not seised: And it is a common learning that in every Repli­cation there ought to be certainty as to that: See the Case betwixt Ful­merston and Steward 2 Ma. 103. that a Bar ought not to be answered by argument: [Page 78] And as to the certainty which is requisite in a Replication. See the Case betwixt Wimbish and Talboies, Plow. Com. 4 E. 6. 42. where the Plaintiff shewed in his Replication his title as Heir, but because he did not shew, how heir, for want of such certainty in the Replicati­on, the Plaintiff could never have Iudgment, although the Iustices for the matter in Law then in question were clearly resolved for the Plaintiff; and here in this Replication the incertainty is such, that the Court doth not know to which to give credit, to the Plaintiff, or to the Def. and the bare matter of the Replication is not sufficient; For in avoidance of a Fine, to say, that a stranger to the Fine, at the time of the Fine levyed, was seised, was never received, but that, partes Finis ni­hil habuerunt, that was the ordinary plea. Windham to the same intent; that which the Demandant hath alledged in avoydance of the Fine, is but matter of Argument and implication. And we ought in this Case first to be insured of the matter of fact; scil. Whether Zouch or Bamfield were seised, and the Court doth not know to which to give credit, 39 H. 6. 49. in Debt by an Executor, the Defendant pleaded, that the Testa­tor made the Plaintiff and one A. his Executor, wich A. is living, and the Plaintiff pleaded, that the said A. died within such a Ward before the Writ brought, &c. and adjudged no plea, without traverse, with­out that, he was dead, for here are 2 affirmatives, whereon a good issue cannot rise, which see 32 H. 6. 23. The Def. in a Replevin avows for a Rent service, the Plaint. pleads, out of his Fee, the Avowant saith, with­in his Fee, he ought to traverse, without that it is out of his Fee, and for default of the traverse the pleading of both parties; as to the several allegations of the seisin in Bamfield and Zouch may be true, for they both might be Ioynt-tenants of the said moyety at the time of the Fine le­vyed, in which case, as to the moyety of the moyety it is good enough. And yet when in pleading it is alledged, that A. was seised, &c. If the other party plead, that A. had nothing but joyntly with B. he ought to take a Traverse, without that, that A. was sole seised, and yet sole seisin is not expresly alledged; but when the other party pleads, that A. was seised, it ought to be intended a sole seisin. Which See 1 E. 4. 9. 37 H. 6. 31. And it was never a plea admittable against a Fine, to say, that the Conusor had nothing at the time of the Fine levyed, which see 41 E. 3. 14. and also 38 E. 3. 13. 8 H. 6. 27. In Trespass the Defendant pleaded the Fine of the Ancestor of the Plaintiff, who said, at the time of the Fine levyed he himself was seised, without that that partes ad finem aliquid habuerunt, which see 46 E. 3. 14. and a Fine ought to be avoided by not seisin of the parties to the Fine, and not by the seisin of a stran­ger to the Fine; and there is not any Book in the Law that alloweth such an averment of seisin in a stranger to the Fine, without answering to the seisin of the parties to the Fine, but 13 H. 8. In Assise, the Tenant pleaded a Fine upon Render of the Ancestor of the Plaintiff, to which the Plaintiff said, that before the Fine, at the time of the Fine, and af­terwards continually, he himself was seised, and the same was held no plea against such a Fine upon a Render, notwithstanding the privity of blood; contrary, against a Fine, which proves a gift precedent.

Anderson to the same intent. The Replication for want of Traverse is incurable, for we as Iudges do not know what to do, because that the truth of the matter in fact doth not appear unto us, and so neither the matter in Law; for every plea ought to be traversed, or confessed, and avoided, otherwise nothing appears to us, and we cannot know whether the Conusor or Bamfield were seised at the time of the Fine le­vyed, for otherwise the matter in Law cannot rise; and yet I well know, that although a traverse may be spared in respect of a matter in Law which should be choaked and put out of the Book by the traverse, or for the mischief of the tryal as aforesaid, where a thing is alledged to be done beyond sea. 19 E. 4. 6. In debt the Defendant pleaded, that the Plain­tiff was born at Denmark, under the obedience of the King of Denmark, [Page 79] the Plaintiff by Replication said, that he himself was born at D. in Eng­land in the County of York, there he shall not take a traverse without that, that he was born at Denmark, for there such tryal connot be, but in such case the Defendant by way of Rejoynder shall say, that the Plaint. was born at Denmark, without that that he was born at D. in the Coun­ty of York: And it is true, a supposal of a Writ or Count may be answer­ed to an Affirmative; but a matter alledged by express words cannot.

Rhodes, admitting now that the Bar be naught, and the Replication faulty, as it is, then I conceive, that if the point of the Action be con­fessed by the Bar, the Court shall give Iudgment upon the Bar, and shall not meddle with the Replication; but if it be not confessed by the Bar, that then there shall be a Repleader. And I do conceive, that a Repleader may be awarded upon a Demurrer in Law: which see Plowd. 1 Ma. in the Case betwixt Browning and Beston 138. In Trespass the Plain­tiff doth suppose the Trespass in two places, scil. in Bermestreet and in South­wark in the County of Surrey; as to the Trespass in Southwark the Defen­dant doth justifie by special matter of a Lease, without answering any thing to the Trespass in Bermestreet. The Plaintiff doth reply, and makes his title by a Lease more ancient than the Lease to the Defen­dant; upon which the Defendant doth demurr in Law. Now the defect in the Bar appearing, the Court awarded a Repleader. And 9 H. 6. 35. in a Replevin the Defendant avowed for damage fesant. The Plain­tiff made title by Common. The Defendant pleaded a Release of the Common by deed, which was not a perfect deed, upon which the Plain­tiff did demurr in Law: And the Replication, in which the imperfect Release was, was holden naught, but because there was a defect in the Bar to the Avowry by the title of Common, the Court awarded, that the parties should replead, not in respect of the vitious plea upon which it was demurred, but in respect of the defect in Bar: And so in this Case Periam said, that nothing should be awarded in this Case but where an Issue is joyned, for an Issue is always joyned upon a point certain. But upon a demurrer all the parts of the pleading, the Count, the Bar, &c. are referred to the Court, as well for the form as for the mat­ter. The Book which hath been vouched to the contrary out of 9 H. 6. I have procured search to be made for the Roll, but it cannot be found, and it is inconvenient, that after a demurrer a Repleader should be granted, for then Causes should never have an end: And as to the Case betwixt Browning and Beston, the Repleader there was permitted by the assent of the parties, rather then awarded by the Rule of the Court.

Windham to the same intent, that no Repleader shall be in this Case, and he said, that in the time of the Lord Dyer the opinion of the Court was so: And as this case is, the plea a Bar being good, and the De­murrer being upon the Replication, no Repleader should be, for a Re­pleader shall never be granted, where the plea upon a Demurrer is not good; but if the Bar be not good, and the Defendant doth demurr up­on the Replication, there a Repleader may be. And as to Browning and Bestons Case he conceived, that the parties did plead de novo, but not re­plead, for if it had been a Repleader, then the parties should begin to plead where the first defect was, as if the defect be in the Bar, there the Repleader shall begin, but the Declaration shall stand: But in the said Case of Browning and Beston, the Plaintiff pleaded all de novo, as a new Count, &c. and yet the first defect was in the Bar, and therefore he con­ceived, that there it was not a Repleader, but that the parties by assent did plead de novo.

Anderson was of opinion, that as this Case is, no Repleader shall be, and yet he held the Repleader might be upon a Demurrer as well as upon an Issue joyned; For a Demurrer joyned is an Issue to be tryed by the Iudges, &c. and such was the opinion of Manwood chief Baron. And the Iudgment in the Case betwixt Browning and Beston is not that the parties [Page 80] shall plead de novo, but that they shall replead. See there folio 138. a. and in that Case there might well be a Repleader, for there the truth of the matter in fact is confessed in the pleading, but in the Case at Bar it is otherwise, for the pleading is so obscure, that we do not know the truth of the matter, and the right of the matter doth not appear unto us.

And by Periam, as to that which hath been said, that upon the demur­rer upon the Replication, the seisin of Bamfield at the time of the Fine is confessed. Sir, its not so, for no more shall be holden confessed by a demur­rer, but that which is duly and sufficiently pleaded, and because the sei­sin of Bamfield is not sufficiently pleaded, therefore not confessed; and for proof of that learning, see the Case betwixt Wimbish and Talboies; and the Case betwixt Hill and Graunge: 1 Mar. Plowd. 171. and see the Case betwixt Partridge and Croker; and so was opinion of the Lord Anderson, who re­lyed much upon the Case, where it is said, that in pleading a plea, all matters in fact well and materially alledged by a general Demurrer are confessed to be true.

Rhodes. Now we are to see, if by the Statute of 27 Eliz. cap. 5. This de­fect in the Replication may be salved, and I conceive, that this Statute doth extend to all imperfections which happen by the Act; Misprision, or negligence of the Clarks or Counsel; for the Clyent propounds his Cause to the Clark and his Counsel to manage in the course of his suit, and if the Clark or Counsel err therein, or in that which to them belongeth, the Csyent as to that shall be releived by the Statute; but if there be any defect in the matter, so as the matter will not serve, it is otherwise. As 5 H. 7. 1. In the Roll of a plea there were divers spaces (for the year and day) void and blank, in another Term, the Iudges could not amend them, but now by the said Statute they may. So co­lour in Assise wanting is helped by this Statute, so the usual averment, & hoc paratus est verificare, &c. left out, the Court hath power to amend it, and so by him the Court by this Statute hath power to amend that defect in Trespass.

Antea 43, 44. Periam to the contrary. And that this default of Traverse is not a­mendable by the said Statute, for it is enacted by the said Statute, that upon a Demurrer the Iudges shall give Iudgment as the right of the cause and matter in Law shall require; but in our case, as the pleading now is, no right of the cause or matter in Law appeareth according to which we can judge, for we upon this pleading cannot tell whether the Conusor or Bamfield was seised at the time of the Fine levyed, for upon the Demurrer upon the Replication the seisin of Bamfield is not confessed, because it is not well alledged: And if it had been well alledged, yet it had not been confessed, because that the Tenant who demurrs upon the Replication, hath in his Bar expresly alledged, that the Conusor was seised: An Original Writ of Debt against one as Executor in the debet and detinet could not be amended by 8 H. 6. but now by the Statute of 27 Eliz. it may. See 22 E. 4. 21, 22. So nominare for praesentare in a Quare Im­pedit shall be now amended by this Statute; And in a Writ of Formedon, discendere for remanere shall be amended by the said Statute of 8 H. 6. 44 E. 3. 13. vide. 11 H. 7. 1, 2 3. In Assise, upon whom the Plaintiff, where it should be upon whom the Defendant entred; And if the Averment usual as above was miss-set down, it was amendable, but if it were utterly left out, not, but now in both Cases it is amendable, so, de­fendit vim & injuriam quando, &c. if it be left out, it is amendable, for all these matters lye in the Conusance of the Clark, but in our Case, the right of the cause and matter doth not appear unto us, for if Bam­field was seised at the time of the Fine levyed, then as the Deman­dant and his Counsel pretend, the Law is with the Demandant, and if the Conusor and not the Demandant, then the Law is with the Tenant, as his Counsel hath argued, so as the right of the cause consists and depends upon the truth of the seisin, which matter doth not appear unto us: And if we enter in course of amend­ment, [Page 81] we do not know if the Demandant would have traversed, with­out that that the Conusor was seised, which shall not be a good Tra­verse, or absque hoc, quod partes ad finem aliquid habuerunt, &c. which although it be a good Traverse in Law, yet we do not know if the truth of the cause will serve to maintain such matter, and because without altering matter we cannot amend the Plea. Windham to the same purpose; For by the Statute of 27 Eliz. we ought to judge in this case, as the right of the cause and matter in Law shall appear; but in this case neither the right of the cause nor the matter in Law appeareth unto us, according to which we can judge, for we know not to which of the parties to give credit, touching the seisin of the Conusor, or Bamfeild at the time of the Fine levyed, for as to our judicial knowledge, both Pleas are to us equally dubious; And he agreed the Cases put before touching amend­ment of matters upon default of the Clark, scil. de hoc ponit se super patri­am, left out, so colour in Assize, and Trespass wanting, so, & hoc paratus est verificare, all which matters are amendable by the Statute of 27. Eliz. But he said, that if in Trespass the Defendant doth justify by a Lease for years, without shewing the place where the Lease is made, it is not amendable, for it is matter which lyeth in the notice of the party only, and not in our judicial knowledge: And as to the Case of 5 H. 7. 1. of the places left, he conceived it is not amendable in another Term by this Statute, for that is material, and the filling of those spaces the parties themselves shall supply and not the Court, for the Court shall never amend, where their amendment makes alteration of the sub­stance of the pleading, or of the Verdict, as 20 H. 6. 15. In Trespass, the Plaintiff declared of a continuando usque diem impetrationis brevis, viz. 18. die Martii, where the Teste of the Writ was, 2 die Januarij, the Defen­dant pleaded to Issue, which was found for the Plaintiff, and that Mis­prision of the Teste or date of the Writ could not be amended. And no amendment upon this Stat. of 27 Eliz. two things are to be considered.

First, that the Iudges, in such amendment, medle not with mat­ter, nor alter the substance.

Secondly, that they do not amend but according to their judicial knowledge.

Anderson, to the same intent, for as it hath been said before, the truth of the Case doth not appear unto us according to which we can judge, and I conceive that upon any amendment upon this Statute, we can­not take out one Roll and put in another, and as our case is we cannot amend this defect without taking out the whole Roll, and therefore in the Case of Leonard, which was late Custos brevium here, where in a Replevin he avowed for a Rent-service, and upon especial Verdict the Case was, that Sir Henry Isley held of the said Leonard by Fealty, and the Rent mentioned in the Avowry, and was attainted of high Trea­son, and the King seised and granted the Land to the Plaintiff, upon whom Leonard avowed for the Rent-service, and I and my companions were agreed, that the rent, notwithstanding the seisure and grant of the King remained distrainable of common right, but Leonard could not have return of the Cattel, because he had avowed for a Rent-service, & now it appeareth to us upon the Verdict, that he had right to so much rent, but not to such a Rent, but a Rent-seck distrainable of common right, so a Rent in another degree; and we also agreed, that the Avow­ry was not amendable, for then upon such amendment, we ought to take out a whole Roll, which was not intended by this Statute: And he conceived also, that in debt against Executors in the Debet & detinet, such a Writ shall not be amended by this Statute, and he conceived, that his exception to the Bar, quod ad medietatem, 60. Messuag. &c. parcel. medi­etatis, &c. is relieved by this Statute, for the meaning appeareth: And also the exception, that it is not expresly shewed that the Fine was en­grossed in the same Term in which it was levied. And Periam moved [Page 82] another matter,Co. 1 Inst. 71. b. 72. a. if now the parties demurring in Law as to part of the Land in demand, and being at Issue upon the residue, if the Court shall adjudge the matter in Law, before the Issue be tried, or not, 32 H. 6. 5 & 6. In Trespass for taking of his Cattel, the Defendant as to parcel pleaded not guilty, and as to the remnant pleaded another Plea, upon which the parties did demur, and there they proceeded to trial before the matter in Law determined, and found for the Plain­tiff, and he had Iudgment thereupon for the damages, but the costs were suspended until, &c. And the Defendant brought his Writ of Error. 48 E. 3. 15. In an Action of Wast, as to parcel the Defendant pleads, no Wast, and as to the rest pleaded matter in Law, upon which there was a demurer joyned; It was holden, that the Issue should not be tried until the matter in Law be determined: But it was said by Ful­thorpe in Trespass, if the Defendant to parcel plead the Enquest, and to other parcel matter in Law, in such case he should proceed to trial presently, and damages should be taxed of the whole, as well of that upon which there was a demurrer in Law, as of that of which the Is­sue was joyned, ad quod non fuit responsum. See also 11 H. 4. 228. In Tres­pass, the Defendant pleaded to Issue for part, and for the residue did de­mur in Law, Process for the trial issued before the matter in Law de­termined; And Periam conceived that the Court might proceed in such Case, the one way or the other: As to the matter in Law, whether the issue in tail upon this Fine should have the Averment, he conceived, that he should not have the said Averment, for that it should be very peri­lous to the Inheritances of the subjects. And he argued much upon the dignity of Fines out of Bracton and Glanvil, whom he called Actores, non Au­thores Legis; & that Fines at the common Law were of great authority until the Statute of West. 2. And afterwards by the Statute of 34 E. 3. of non-claim, from whence they became to be of so little value in Law, that they were accounted no other than Feoffments upon Record, so as thereby no assurance was of Inheritances but a general incertain­ty until the Statute of 4. H. 7. by which Statute they were restored to their ancient power and virtue: After which Statute many shifts were devised, to creep out of it: So as the Statute of 32 H. 8. was made to take away all questions and ambiguities which were conceived upon the said Statute of 4 H. 7. And therefore we who are Iudges ought to frame our Iudgments for the maintaining of the authority of Fines, for so the possessions and inheritances of the Subjects shall be preser­ved; And that is the reason, that if a stranger levy a Fine of my Land in my name, that I have not any remedy but a Writ of Deceit against him who levyes the Fine, so if a Feme-covert levyeth a Fine of her Land as a Feme-sole, the same shall bind her after the coverture, if the Husband do not enter upon the Conusee during the coverture and in­terrupt the possession gained by the Fine: And 17 E. 3. and our Books are very plentiful to this purpose that the Law doth aerge admit of such allegations against such Fines: A Fine was pleaded in Bar of Land in A. B. and C. he against whom it was pleaded was not received to aver a­gainst the supposal of the Fine, that there was no such Town or Ham­let as A. 46 E. 3. 5. A woman Tenant in tail, had Issue a Daughter, who was inheritable to the tail, the Daughter took a Husband, & they both living the Mother, and during her seisin, levied a Fine of the Land en­tailed to a stranger, sur conusans de droit, come ceo, &c. who rendred the Land to the Husband and Wife in specil tail, the Husband died having Issue, the Wife took another Husband, had Issue, and died, the Husband to entitie himself to the Land as Tenant by the curtesy, would in pleading have averred the seisin of the Mother at the time of the Fine levyed, and he could not, and yet he was a stranger to the Fine, but he was privy to the estate, and his claim was by her who levyed the Fine, 6 E. 3. 46. Fitz. Averment 40. In a Writ of Entry, sur dissei sin, the Fine of the [Page 83] Ancestor of the Demandant was pleaded in Bar by the name of W the Demandant in avoidance of it would have said that the name of his Father was R. to have avoided the Fine, but to that he was not received. And 3 E. 3. 32. scil. Averment, 42. In a Formedon, the Tenant pleaded Ne dona pas, The Demandant by Replication said, That a Fine was levied of the same Lands, between the Father of the Demandant, and one T. by which Fine the Father of the Demandant did acknowledge to T. the Lands come ceo, &c. and the said T. gave by the said Fine to the Father of the Demandant the Land in tail. Where it is said by Stone, that since the gift is proved by as high a Record, a man shall not aver against such matter in avoidance of the said Fine, &c. and yet the party against whom it was was a stranger to the Fine: And see 38 E. 3. 7. The Lord shall not be received against a Fine levied by his Tenant to aver the dying seised of his Tenant in his Homage. And as to the Issue in tail, he con­ceived, that the Averment doth not lie for him, for the Issue in tail is as much privy, as the Heir of a Tenant in Fee-simple. And see 33 E. 3. scil. Estoppel 280. In a Formedon, the Tenant voucheth, the Demand­ant Counter-pleaded, that the Vouchee nor any of his Ancestors had any thing in the Land in demand after the seisin, &c. to which the Tenant said, that to that the Demandant should not be received, for the Fa­ther of the Demandant after the gift levied a Fine to the Ancestor of the Vouchee of the said Land in demand, sur conusans de droit come ceo, &c. and the same was holden a good bar to the Counter-plea.

And it was said by the Iustices, That although the Statute of West. 2. of Donis conditionalibus, doth not avoid the Fine as to the fore-closing of the Issue in tail of his Formedon, yet it remaineth in force as to the res­training of the heir in tail to aver a thing against the Fine as well as against the heir in Fee-simple; and in all Cases, where he against whom a Fine is pleaded claims by him who levieth the Fine, he shall not have the same Averment, but where he claims by a stranger to the Fine, there he shall have it well enough; see 33 H. 6. 18. If my Father Te­nant in tail, or in Fee, grant the Land by Fine, and afterwards I make Title to the same Land by the same Ancestor, and the Fine is pleaded against me, I shall not be received to say that those who were parties to the Fine had not any thing at the time of the Fine levied, but such a one an estranger whose estate, &c. but it is a good Plea for me to say, that after the Fine such a one was seised in Fee, and did enfeoff me, vid. 22 E 3. 17. before 33 E. 3. Estoppel 280. And Dyer 16 Eliz. 334. The Father is Tenant for life, the Remainder in Fee to his Son and Heir, levieth a Fine to a stranger, sur conusans de droit come ceo, &c. with warranty, and takes back an estate by the same Fine, in that case it was holden that the heir should not be received to aver continuance of the possession and seisin, either ante finem, tempore finis, or post finem, in the Tenant for life, for it is a Feoffment upon Record, and makes a discontinuance of the Remainder and Reversion. The only Book in our Law to maintain the Averment is 12 E. 4. 15. by Brian, who although he was a reverend Iudge in his time, yet he erred in this, that if Tenant in tail be dis­seised, and levieth a Fine unto a stranger, sur conusans de droit, come ceo, &c. that the Issue in tail may well say, that partes ad finem nihil habuerunt, but Coke and Lit. were clear of a contrary opinion and see in the same year, fol. 12 by Fairfax and Littleton, that if Tenant in tail, where the Remainder is over to a stranger, levieth a Fine sur conusans dodroit, come ceo, &c. he in the Remainder may aver continuance of seisin against that Fine, for he is not party, nor heir to the party, &c. And the Stat. of 4 H. 7. goes strongly, to extort such Averment out of the mouth of the Issue in tail, for the words concerning the same point are, saving to every person or persons, not party, nor privy to the said Fine, their ex­ception to avoid the said Fine, by that, that those which were parties to the said Fine nor any of them had ought in the Land at the time of the [Page 84] said Fine levied: And it is clear, that the Issue in tail is privy to his Ancestor whose heir to the tail he is, which see agreed, 19 H. 8. 6. 7. And he vouched the Case of one Stamford late adjudged, Land was given to the eldest Son in tail, the Remainder to the Father in tail, the eldest Son levied a Fine, sur conusans de droit come ceo, &c. and died without Issue in the life of his Father, and afterwards the Father died; the second Son shall inherit; but if the eldest Son had survived the Father, and afterwards died without Issue, the second Son should have been barred.

Periam to the same intent: It should be very dangerous to the In­heritances of the Subjects to admit of such Averments, and by such means Fines which should be of great force and effect should be much weakned, and he put many Cases to the same purpose as were put be­fore by Rhodes Iustice, and he shewed how that Fines, and the power of them were much weakned by the Statute of non-claim, whereof fol­lowed (as the preface of the Statute of 4 H. 7. observeth) the Vniver­sal trouble of the Kings Subjects, and therefore by the said Statute of 4 H. 7. Fines, for the good and safety of the Subjects were restored to their former Grandure and authority, which should be construed by us who are Iudges, strongly and liberally for the quiet and establishment of present possessions, and for the barring and extinguishing of former rights, and so did the Iudges our Predecessors; which see in the Argu­ment of the said Case between Stowel and the Lord Zouch: So see such liberal construction, 19 Eliz. Dyer 351. Where if Land be given to Hus­band and Wife in special tail, and the Husband alone levieth a Fine and dieth having Issue, the Issue is barred: And it hath lately been ad­judged by the advice of all the Iudges of England, upon the Statute of 1 Ma. viz. All Fines levied, whereupon Proclamations shall not be day­ly made by reason of Adjournment of any Term, shall be of as good force and strength to all intents and purposes, as if such Term had been holden and kept from the beginning to the end thereof, and not adjourned, and the Proclamations shall be made in the following Term, which reason in construction of the said Statute, the Iudges in the case of the Cooks of London, 20. Eliz. have observed, which see Plowden 538. For although Successors are not mentioned in the said Statute of 4 H. 7. but only Heirs, yet the Iudges did construe the said Statute to extend to them that they should be bounden as well as the Heirs; for it is in the like mischief, and the said Statute was made for the publick good, and for the repose of the Inheritances of the Subjects of this Realm, and therefore the same ought to be largely extended in the meaning and sense of it, and for the benefit of the Possessors of the Lands, and to the destroying of former rights which were not claim­ed. It hath been said, that this Fine is but a Fine by conclusion, and not in verity; and therefore not within the Statute. But without question, Fines by conclusion are within the Statute. And that is clear by the Saving, scil. to all persons other than parties to the said Fines, &c. And Periam was against the opinion in Stowells Case by Sanders 356. A Disseisor maks a Feoffment in fee upon condition, the Feoffee levies a Fine with Proclamation, five years pass, the condition is broken, the Disseissor re-entreth, and Periam conceived that in such Case the Disseissee is bounden, for by the Fine, and five years non-claim, the right of every stranger is barred, and when the Disseissor entreth for the condition broken, the Fine is not annoyed, but rather confirmed, and former rights shall not be revived. Windham to the same intent, and vouched the Books before remembred, and that the meaning of the Statute of 32 H. 8. made upon the Statute of 4 H. 7. was to bind the Issue in tail as strongly as the heir of Tenant in Fee-simple was bound at the common Law, and that Fines by conclusion are as fully within the purview of that Statute as Fines in verity, for Fines by con­clusion are Assurances; And as to the objection against our Fine, that it [Page 85] is not rite levatus because that partes ad finem nihil habuerunt, &c. the same is no reason, wherefore this Fine should not be rite levatus, for these words rite levatus, to the external form of a Fine are to be taken as to a Fine levied, coram Edmundo Anderson & socijs suis, where all the Iustices ought to be named, and so it seemed also to Periam and Anderson. Our case had little resemblance to the Case where Tenant in tail maks a Lease according to the Statute of 32 H. 8. if he be not seised at the time of the demise, it is void; for the Stat. speaks seised in tail: but so are not penned the Statutes of 4 H. 7. & 32 H. 8. as 4 H. 7. a Fine levied shall bind privies, & strangers, &c. & 32 H. 8. Fines levied of any Lands en­tailed to the Conusor or any of his Ancestors, and it is not a Fine in respect of the possession which passeth by the Fine, but in respect of the Concord and Agreement,

And Tenant in tail by these Statutes hath as great power to bind the right of the entail, although he cannot meddle with the possession, as the Tenant in Fee-simple at the common Law.

Anderson to the same intent, All the matter rests upon this point, if the Issue in tail be privy or not, for if he be privy, then clearly he is bounden. And as to that, the Issue in tail before the Statute of 32 H. 8. hath been always accounted privy. See 29 H 8. Dyer 32. Tenant in tail of the gift of the King levieth a Fine, the same shall bind his Issue, for they are privy. And he argued much upon the Cases cited by the other Iustices before, and especially upon the said Case of Stowel and the Lord Zouch; how that the Issue in tail is there holden privy; and that the Statute of Fines ought to be taken and construed to enfore the o­peration of Fines against former rights, and for the establishment of the present possessions and estates. And by him divers rights and persons are excepted by the said Statute, but this right in gross of possession, nor the Issue in tail, whose Ancestor being out of possession levieth the Fine is not excepted, therefore both of them comprehended in the Statute. And in his argument he stood much upon it, how dan­gerous a matter it should be, to receive such averments and allega­tions which go meerly in avoidance of Fines, for so every Fine might fall in the mouth of the Lay-Gens, which would be very inconvenient. And he concluded his Argument with this Case. Tenant in tail doth discontinue, and disseiseth his discontinnuee, and levieth a Fine, the discontinuee before the proclamations reentreth, the proclamations are made, Tenant in tail doth re-enter, and dieth seised; against this Fine his Issue shall not be remitted. See as to the averment 3 H. 627. 33 H. 6. 18. 42 E. 3. 20. 8 H. 4. 8. 12 E. 4. 19. by Fairfax and Needham, and fol. 15. by Brian and Choke. And afterwards Iudgment was given, that the Demandant should be barred.

CIII. Gunerston and Hatchers Case. Intr. Pasch. 24 Eliz. Rot. 2112. In Communi Banco.

CHarles Duke of Suffolk was seised of three parts of the Manor of D. and Poole was seised of the fourth part of the said Manor,Avowry. and af­terwards the Duke granted out of the said three parts a Rent-charge of five marks to Gunerston; and afterwards the said Duke of the said three parts did enfeoffe Hatcher in Fee, after which Poole conveyed his said fourth part of the said Manor to the said Hatcher in Fee, and after­wards Hatcher being seised, ut supra, reciting the said several purchases, especially the said fourth part devised to Katherin Hatcher at Will, and Gunerston distreined the Cattel of Katherin Hatcher for the arrearages of the said Rent, and in a Replevin avowed the distress: and by the opinion of the whole Court the Avowry was not maintainable, for the fourth part of the said Manor, which was in the possession of [Page 86] Poole, was not charged with the Rent; and although all the Manor be now in the possession of Hatcher, yet the Mannor is not so consolidated nor united by this unity of possession, but that the owner might well enough single out eandem quartam partem, and grant it, and the grantee shall hold the same discharged, as the said Poole held it; and the beasts of the said Katherin shall not be distreined; and so Iudgment was given against the Avowant.

CIV. Mich. 29 & 30 Eliz. In Communi Banco.

Voucher. Post. 291.IT was moved by Serjeant Walmesley, If a common Recovery be to pass at the Bar, and the Tenant is ready at the Bar and voucheth to warr. A. for whom one is ready at the Bar to appear for the vouchee by his warrant of Attorny; It was holden, that this appearance is meerly void, for in such case the vouchee ought to appear in person, because without summons; but where summons issueth, and the same is entred upon the Roll, there may the vouchee at the Return appear in person, or by Attorny, at his Election. And that was the clear opinion of all the Iustices, and also of the Prothonotaries.

CV. Keys and Steds Case. Mich. 29 & 30 Eliz. In Communi Banco.

IN a Formedon by Keys against Sted, the Case was, the Sted and his Wife were Tenants for life,Formodon. 2 Len. 9. the Remainder over to a stranger in Fee; and the Writ of Formedon brought against Sted only, who made de­fault after default, whereupon came his Wife and prayed to be recei­ved to defend her right; which was denied her by the Court, for this Recovery doth not bind her, and it is to no purpose for her to defend her right in that Action which cannot here be impearched; Whereup­on he in the Remainder came and prayed to be received, and the Court at first doubted of the Receit, forasmuch as if the Demandant shall have Iudgment to recover, he in the Remainder might falsify the Re­covery, because his estate, upon which he prayeth to be received, doth not depend upon the estate impleaded, scil. a sole estate, whereas his Remainder doth depend upon a joynt estate in the Husband and Wife,Falsifier of Recovery. not named in the Writ; But at the last, notwithstanding the said Ex­ception, the Receit was granted. See 40 E. 3. 12.

CVI. Liveseys Case. Mich. 29 & 30 Eliz. In Communi Banco.

Writ of Right.IN a Writ of Right against Thomas Livesey of the Mannor of D. & de duabus partibus Custodiae Forrestae de C. the Tenant did demand the view and he had it, and return was made, and now the Writ of Habere facias visum, was viewed by the Court, and it was, Visum Manerii & duarum par­tium Custodiae, &c. And it was holden by the Court not to be a sufficient view, for the Forrest it self ought to be put in view, scil. the whole For­rest,View. and not duae partes tantum, as where a Rent or Common is demand­ed, the Land out of which the Rent or Common is going ought to be put in view; and there a Writ of Habere facias visum de novo issued forth.

CVII. Germys Case. Mich. 29 & 30 Eliz. In Communi Banco.

GErmy brought Debt upon a Bond against A. as Executor,Debt. 2 Len. 119. and the Case was, That the Testator of A. by his Will did appoint cer­tain Lands, and named which, should be sold by his Executors, and the moneys thereof arising distributed amongst his Daughters when they have accomplished their ages of one and twenty years; the Lands are sold, if the moneys thereof being in the hands of the Exe­cutors until the full age of the Daughters shall be assets to pay the debts of the Testator? And by the clear opinion of the whole Court,Assets. Post. 224. the same shall not be assets, for that this money is limited to a special use.

CVIII. Mich. 29 & 30 Eliz. In Communi Banco.

IN an Action of Debt upon an Obligation, the Defendant saith, that the Plaintiff shall not be answered, for he is out-lawed, and shewed the Outlawry in certain, by the name of I. S. of D. in the County of, &c. The Plaintiff shewed, that at the time of the sute begun against I.S. upon whom the Out-lawry was pronounced, the said I.S. now Plaintiff, was dwelling at S. absque hoc, that he was dwelling at D. Vide 21 H. 7. 13. And it was holden a good Replication, to avoid the Out-lawry without a Writ of Error, by Anderson. 10 E. 4. 12. For if he were not dwelling at D. then he cannot be intended the same person: See 39 H. 6. 1.

CIX. Mich. 29 & 30 Eliz. In Communi Banco.

IT was agreed by the whole Court, and affirmed by the Prothono­taries, That if in Account the Defendant be adjudged to account, and be taken by a Capias ad computandum, and set to mainprize, pendent the Account before the Auditors, and doth not keep his day before them, that now a Capias ad computandum de novo shall issue forth against him.

CX. Glosse and Haymans Case. Mich. 29 & 30 Eliz. In the Common Pleas.

JOan Glosse brought an Action of Trespass, vi & armis, Trespass, vi & armis, a­gainst a Ser­vant for carry­ing away his Masters goods. Owen 52. Mor [...] 248. against John Hayman, who pleaded the general Issue, and the Iury found this special matter, That the Plaintiff was a Grocer in Ipswich, and there held a Shop of Grocery, & quod illa reposuit fiduciam in the Defendant, to sell the Grocery Wares of the Plaintiff in the said Shop: And further found, that the said Defendant being in the said Shop in form aforesaid, cepit & asportavit, the said Wares, and did convert them, &c. It was moved in Arrest of Iudgment, that this Action, vi & armis, upon this matter doth not lie, but rather an Action upon the Case. But the Court was clear of opinion, that the Action doth well lie, for when the De­fendant was in the Shop aforesaid, the Goods and Wares did remain in the custody and possession of the Plaintiff her self. And the Defendant hath not any Interest, possession, or other thing in them, and therefore if he entermeddle with them in any other manner, than by uttering of [Page 88] them by sale, according to the authority to him committed, he is a Trespassor; for he hath not any authority to carry the Wares out of the Shop not sold, but all his authority is within the Shop. And Rodes put the Case of Littleton 25. If I deliver my Sheep to another to manure his Land, or my Oxen to plow his Land, and afterwards he kills them, I shall have an Action of Trespass against him: And af­terwards Iudgment was given for the Plaintiff.

CXI. Martin and Stedds Case. Mich. 29 & 30 Eliz.

RIchard Martin, Alderman of London, brought an Action upon the Case against Stedd, and declared, That whereas the Queen by her Let­ters Patents dated, the 27. of August, anno 24. of her Reign, had grant­ed to the Plaintiff the Office of Master of the Mint, through all Eng­land, to exercise the said Office, secundum formam quarundam Indent. be­twixt the said Queen and the said Plaintiff conficiendam, and that in January following the said Indenture was made, by which it was agreed betwixt the said Queen and the Plaintiff, that the money, in posterum, should be made in such manner, &c. according to the true Standard; and declared, that he had duly and lawfully made all the money accor­ding to the said Standard: Yet the Defendant, machinans, &c. had slanderously spoken and given out speeches in these words, Mr. Martin hath not made the money as good and fine as the Standard, by an half penny in the ounce, and so he hath saved four thousand pounds. It was objected against this Declaration by Walmesley Serjeant, that here the Plantiff hath declared upon the Letters Patents, and the Office given by the Letters Patents ought to be exercised accor­ding to the Indenture, &c. And here appears upon the Declaration no Indenture, for no enrolment of such Indenture is shewed, and if it be not enrolled, then there cannot be any Indenture betwixt the Queen. &c. and then the Qeeen cannot have an Action upon it for want of enrolment. See 21 H. 7. 21. 1 H. 7. 28. and 31. 5 E. 4. 7. and also if there be not a sufficient Indenture, then the Plaintiff is not Master of the Mint, and then also there is not any new Indenture: And then the Plaintiff ought to make the money according to the the old Stan­dard, and then might the Defendant well justifie the words.

Another Exception was taken, because the Plaintiff is not at any damage, for the Queen cannot have against him but an Action of Co­venant upon the said Indenture, because the Defendant hath not made the money accordingly, which matter is not actionable, no more than if the Farmer of the Queen had brought this Action against one, for speaking that he had broken the condition or covenants of his Lease. And as unto these words, So that the Defendant hath saved four thou­sand pounds, those words are not actionable, for it may be he hath sa­ved this four thousand pounds to the Queen; and such construction the Iudges ought to make of such ambiguous words in such cases, scil. in optimam partem. It was adjorned.

CXII. Mounson and Wests Case. Mich. 29 & 30 Eliz. In the Common Pleas.

Challenge. 3 Len. 22 [...].IN an Action of Trespass between Mounson and West, the parties were at Issue, and now at the Return of the Pannel the Defen­dant challenged the Array, because it was made by Bartholomew Armin, [Page 89] who took to Wife the Cosin German of the Plaintiff, & ex ea had Issue living, the mother being dead: And upon this challenge the Plaintiff did demur in Law; And it seemed to the Lord Anderson, that it is not a principal challenge, but only to Favour. For the matter of the chal­lenge is not consanguinity, but only affinity: And so it seemed to Pe­riam. And Rhodes cited a case adjudged in the Kings Bench. Markham brought an Action upon the Case against Lee, who at the Nisi Prius chal­lenged the Array, because the Sheriffs wife was sister to the Plaintiffs Wife, and that was before the Lord Dyer at Nottingham, and that chal­lenge was holden there, not to be a principal challenge, upon which Er­ror was brought in the Kings Bench: And Error assigned in that, and for that cause the Iudgment was reversed: And by Windham the Writ of Venire facias is, quia nulla affinitate, &c. so as affinity is presumed in Law not indifferent. And by Anderson that is to be intended of the Iurors, and not of the Sheriff, 22 E. 4. 2. The Array was challenged, because that the Sheriff, &c. had married A. Daughter of Eliz. Sister of the Mo­ther of the Plaintiff, and that was holden a principal challenge 20 H. 7. 7. 26 E. 3. 21. And afterwards at another Term the Case being moved, Anderson, Rhodes and Windham were clear of opinion,Dy. 37. 191. 319. that it is a princi­pal challenge; but Periam haesitavit, and put a difference betwixt consan­guinity and affinity, for affinity is not a principal challenge, unless it be averred, that the Issue, &c. is inheritable to the Land. And Ander­son put the Case in 14. H. 7. 2. Where one challenged, because one of the Iurors had married the Mother of the Defendant, it was holden a prin­cipal challenge. And 15 H. 7. 9. where the challenge was for that the Bro­ther of the Wife of the Defendant had married the Daughter of the Sheriff.

CXIII. Sir Thomas Greshams Case. Mich. 29 & 30 Eliz. In the Exchequer.

SIr Tho. Gresham being seised of the Manors of Walsingham and Mil­cham in the County of Norfolk, 12 Eliz. Revocation of uses. enfeoffed B. and C. to certain uses, and that was with clause of Revocation upon the tender of forty shillings, and that after such Revocation he might limit new uses; and afterwards the year following, Sir Tho. Gresham made the like con­veyance of his Lands in the County of Suffolk to the said persons, to the like uses, upon like clause of Revocation upon the tender of forty shillings, Sir Thomas tendered to the said Feoffees one sum of forty shil­lings, to revoke the uses raised upon both the Feoffments; & afterwards raised divers uses of divers of the said Manors holden in Capite, Dyer. 372. and afterwards Sir Thomas died: And afterwards it was resolved by the opinion of the Iustices, that by that tender the uses were not revoked, but that the Revocation was utterly void, for two several sums of for­ty shillings ought to have been tendered, for they were several Inden­tures and could not be satisfied by one sum. After which by a private Act of Parliament, 23 Eliz. the said Revocation was enacted and ad­judged to be good and sufficient in Law. And now the Lady Gresham was called by process into the Exchequer for a Fine due to the Queen for the said alienation,Fine for Alie­nation. because that now the said uses newly raised were good, and the said Manor possessed according to the limitation of them, for now the Revocation is good, because done by the said Statute which recited the whole special matter, and that for want of a sufficient Ten­der, the Revocation was void in Law; and also reciting the new uses which were declared for the payment of his debts, and many honorable Legacies, & also for the security of those who had purchased underneath the said new uses: For remedy whereof it was enacted, & quod praedict. Revocationes bonae & sufficientes in lege habeantur, reputentur, & recognoscantur. And [Page 90] it was argued by Coke, that upon the matter, no Fine is due, for all those new uses took their essence and effect by that Act of Parliament, to which the Queen her self is a party, and the principal Agent, and therefore against her own Act she shall not claim a Fine, &c. And also the alienation without licence is a wrong and trespass; and an Act of Parliament cannot do wrong, and if partition be made betwixt Par­ceners by Act of Parliament, no Fine is due to the Queen, which was in ure 23 Eliz. for by Parliament then a Partition was made be­twixt the Co-heirs of the Lord Latimer, and I do not know that any Fine hath been demanded for it.

CXIV. Bret and Sheppards Case. Mich. 29 & 30 Eliz. In the Common Pleas.

Debt. BRet brought Debt upon a Bond against Sheppard, the Bond was endorced, upon condition, that where the Defendant was arrested at the sute of one A. if now the Defendant shall appear in the Kings Bench, where the process is returnable, that then, &c. And the De­fendant said in fact, that he had appeared, secundum formam & effectum conditionis supradict. & hoc petit quod inquiratur per patriam, & praedict. Brett si­militer: It was moved, that the parties should replead for this matter, upon which they are at Issue, scil. the appearance is not triable by Iu­ry, but by the Record: And the Court was clear of opinion, that the parties should replead for the cause aforesaid: And it was moved by the Lord Anderson, that if A. be bound to appear in the Kings Bench at such a day, and A. at the said days goe to the Court, but there no pro­cess is returned, then the party may go to one of the chief Clerks of the Court, and pray him to take a Note of his appearance: And by Nelson, we have an acient form of entry of such Appearance in such Cases, Ad hunc diem venit I. S. & propter indemnitatem suam & Manucaptorum suorum petit quod comparentia sua in Curia hic recordetur. And see for the same 38 H. 6. 17. And afterwards the Lord Anderson, inspecto Rotulo, ex assensu sociorum awarded a Repleader: And so by Nelson, it hath been done oftentimes here before, and put in ure: The same Law is, where at the day of appearance no Court is holden, or the Iustices do not come, &c. he who was bound to appear, ought to have an Appearance recorded in such manner as it may be; and if the other party pleadeth Nul tiel Record, it behoveth that the Defendant have the Record ready at his peril, for this Court cannot write to the Iustices of the Kings Bench, for to certifie a Record hither.

CXV. Baxter and Bales Case. Mich. 29 & 30 Eliz. In the Common Pleas.

Debt not ex­tinct by admi­nistration. BAxter brought Debt upon a Bond as Executor of I. against Bale; who pleaded that the Plaintiff after the death of the Testator was cited to appear before the Ordinary or his Commissary to prove the Will of the said I. and at the day of his appearance he made default, up­on which the Ordinary committed Letters of Administration to the Defendant, by force of which he did administer, so the debt is extinct, &c. but the whole Court was clear of opinion, that the debt was not extinct, for now by the probate of the Will the administration is de­feated, and although the Executor made default at the day which he had by the Citation before the Ordinary, yet thereby he is not absolute­ly debarred, but that he may resort to the proving of the Will when­soever he pleaseth; But if he had appeared and renounced the Exe­cutorship [Page 91] it had been otherwise; and the debt is not extinct by the Ad­ministration in the mean time.

CXVI. Mich. 29 & 30 Eliz. In the Common Pleas.

IN a Franchise the parties are at Issue upon a matter triable out of the Franchise. And it was moved, if now the Record should be sent into the Common Pleas, and there tryed, and after trial sent back into the Franchise: Which Periam and Anderson utterly denied; and by Periam, there is no reason that we should be their Ministers to try Is­sues joyned before them: And it is not like,2 Len. 37. where in a Liberty or Fran­chise a Forrein Voucher is to warrant Lands, in such cases we shall determine the Warranty; but that is by a special Statute of Glocester cap. 12. And Nelson Prothonotary said, that such an Issue was tryed here of late. Quod nota.

CXVII. The Earl of Arundel, and the Lord Dacres. Case. Mich. 29 & 30 Eliz. At Serjeants Inne.

PHilip Earl of Arundel, and the Lord William Howard his Brother mar­ryed the Daughters and Co-heirs of the late Lord Dacres: And now came Francis Lord Dacres as heir male of the said Family, and claim­ed the Inheritance, &c. And after long sute betwixt both parties, they submitted themselves to the award of Gilbert Lord Talbot, and of Arthur Lord Grey of Wilton, and Windham and Periam Iustices; And before them at Serjeants Inne, the matter was well debated by the Council learned on both sides; and as unto Greistock Lands, parcel of the Lands in questi­on, the Case was. That Tenant in tail makes a Feoffment in fee unto the use of himself for his life, the Remainder in tail to his el­dest Son, with divers Remainders over, with a Proviso, that if any of the Entailees do any act to interrupt the course of any entail limit­ed by the said Conveyance, that then the use limited to such person should cease, and go to him who is next inheritable; And afterwards Tenant in tail dieth, his eldest Son to whom the use in tail was first limited entreth, and doth an Act against the said Proviso, and yet held himself in and made Leases, the Lessees enter, the Lessor dieth seised, his Heir being within age, and in ward to the Queen; It was holden by Shutleworth Serjeant, Yelverton, Godfrey, Owen, and Coke, who were of Council with the Heirs general of the Lord Dacres, that here is a Remitter, for by this Act against the Proviso, the use,Remitter. and so the posses­sion doth accrue to the enfant Son of him, to whom the use in tail was limited by the Tenant in tail: Then when the Tenant in tail after his said Feoffment holds himself in, this is a disseissin; for a Te­nancy by sufferance cannot be after the cesser of an estate of Inheri­tance; But admit that he be but a Tenant at sufferance,H [...]b. 255. Dy. 54. yet when he makes Leases for years, the same is clearly a disseisin, and then upon the whole matter a Remitter, and although the Enfant taketh by the Statute, yet the right of the tail descending to him afterwards by the death of his Father doth remit him, as if Tenant in tail maketh a Feoffment in fee to the use of himself for life, the Remainder in tail to his eldest Son inheritable to the first intail, notwithstanding that the eldest Son takes his Remainder by the Statute, and so be in [...] force thereof, yet when by the death of his Father, the right of the Entail descends to him, he is remitted.

CXVIII. Butler and Ayres Case. Mich. 29 & 30 Eliz. In the Common Pleas.

Dower. BUtler and his Wife brought a Writ of Dower against Thomas Ayre, Son and Heir of Bartholmew Ayre, first Husband of the said Margaret Wife of the Plaintiff, and demanded Dower of Lands in A. and B; the Tenant pleaded, never seised que Dower, and the Iury found that the said Bartholmew was seised during the Coverture, de omnibus tenementis infra script. preterquam, the Tenements in (sic ut dicta Margareta dotari potuit) Exception was taken to this Verdict; because that this preterquam, &c. doth confound the Verdict. To which it was said by the Court, that the preterquam is idle, and surplusage, for it is of another thing than that which is in demand, and the seisin of the first Husband of Lands in A. and B. is confessed, and the (preterquam) works nothing: Another matter was objected, because here the Iury have assessed damages, as in case where the Husband died seised,Dy. 370. the which dying seised is not found by the Verdict: In which Case it was said by the Court, the Demandant might pray Iudgment of the Lands, and release damages; or the De­mandant may aver that the Husband died seised, and have a Writ to enquire of the damages, quod omnes Pregnotarii concesserunt.

CXIX. Michel and Hydes Case. Mich. 29 & 30 Eliz. In the Common Pleas.

Dower.DOwer by Michel and his Wife against Lawrence Hyde, who appear­ed upon the grand Cape; And it was because that the said Hyde in truth was but Lessee for years of the Land of which &c. in which case he might plead non-tenure, if now he might wage his Law of non-sum­mons, so as the Writ be abated: for by the wager of Law he hath taken upon him the Tenancy, and affirmed himself to be Tenant, 33 H. 6. 2. by Prisoit, to which it was said by Rhodes, and Windham Iustices, that here the Tenant being but Lessee for years is not at any mischief, for if Iudg­ment and Execution be had against him, he notwithstanding might afterwards enter upon the Demandant. Another matter was moved, That where the Writ of Dower was, de tertia parte Rectoriae de D. and up­on that the grand Cape issued, Cape in manum nostram tertiam partem Rectoriae, and the Sheriff by colour of this Writ took the Tythes severed from the nine parts, and carried them away with him: And it was agreed by the said Iustices, that the same is not such a seisure as is intended by the said Writ, but the Sheriff by virtue of such Writ ought generally to seize, but leave them there where he found them. And the Court was of opinion to commit the Sheriff to Prison for such his misdemeanor.

CXX. Hamington and Ryders Case. Mich. 29 & 30 Eliz. In the Common Pleas.

RIchard Haming. Executor of Isabel Haming. brought Debt upon an Obli­gation against Ryder, Debt. Savil Rep. 74. Owen Rep. 6. 1 Co. 52. 1 And [...] 162. the Case was, that Kidwelly was seised, & leased for years to John Hamington Husband of Isabel, and afterwards John Haming­ton being so possessed, by his will devised, that the said Isabel should have the use and occupation of the said Land for all the years of the said Term as she should live and remain sole, and if she died or married, [Page 93] that then his Son should have the residue of the said Term not expired; John died, Isabel entred,Devises. to whom the said Lawr. coveyed by Feoffment the said Land in Fee, and in the Indenture of the said Conveyance Lawr. covenanted that the said Land from thence should be clearly ex­ouerated, de omnibus prioribus barganijs, titulis, juribus & omnibus alijs oneribus quibuscunque, Isabel took to Husband, the Son entreth: If now the Co­venant be broken was the question. It seemed to Anderson at the first motion, that this possibility which was in the Son at the time of the Feoffment, was not any of the things mentioned in the Covenant, scil. former bargain, title, right, or charge; But yet it was conceived by him that the word bargain did extend to it, for every Lease for years is a contract, and although that the Land at the time of the Feoffment was not charged, yet it was not discharged of the former contract: And by Windham, if I be bounden in a Statute-staple, and afterwards I bargain and sell my Lands, and covenant (ut supra) here the Land is not charged, but if after the condition contained in the defeazance be broken, so as the Conusee extends, now the Covenant is broken; And by him, the word (charge) doth extend to a possibility, and this possibi­lity might be extinct by Livery as all agreed; but not translated by grant,Ante 33. 3 Len. 43. Covenant. or extinguished by release, as it was lately adjudged in the Case of one Carter. At another day, it was argued by Walmesley, and he much relied upon the words (clearly exonerated) utterly discharged, or altogether exonerated, and without doubt it is a charge which may happen, and if it may happen, then the Land is not clare exonerated: And also for­mer bargains do extend to it, and the Term is not extinct by the acceptance of the Feoffment aforesaid of Kidwelly, and although, that at the time of the Feoffment it was but a possibility, and no certain interest, yet now upon the marriage of Isabel, it is become an actual burthen and charge upon the Land; and he cited a Case adjudged, 8 Eliz. A man seised of Lands grants a Rent-charge to begin at a day to come before which day he bargains and sells the Lands, and covenants that the said Lands are discharged of all charges, in that case when the day when the Rent ought to begin is incurred, the Covenant is clearly broken, for the Lands were not clearly exonerated, &c. At another day the Case was moved at the Bar. And Anderson openly in Court decla­red, that he and all his companions were agreed, that the Land at the time of the Feoffment was not discharged of all former Rights, Titles and charges; and therefore commanded, that Iudgment should be entred for the Plaintiff.

CXXI. Howel and Trivanians Case. Hill. 30 Eliz. In the Kings Bench.

HOwel brought an Action upon the Case against Trivanian in the Common Pleas, and declared,Assumpsit. that he delivered certain goods to the brother of the Defendant, who made the Defendant his Exe­cutor, and died, after which the Plaintiff came to the Defendant, and spake with him concerning the said goods, upon which communication and speech the Defendant promised the Plaintiff, that if the Plaintiff could prove, that the said goods were delivered to the Testator,2 Roll. 594. that he would pay the value of them to the Plaintiff: And the Declaration was in consideration, that the said goods came to the hands of the Testator, and also afterwards the goods came to the Defendants hands, and upon non Assumpsit pleaded, It was found for the Plaintiff, and Iudgment given: And afterwards Error was brought in the Kings Bench, and Error assigned, because that the Plaintiff had not averred in his Declaration, that he had proved the delivery of the said goods to the said Testator,1 Cro. 105. for the words of the promise are, si probare potuisset: And also it was assign­ed [Page 94] for Error, that here is not any consideration upon which this pro­mise could receive any strength, for the Defendant hath not any profit or advantage thereby, scil. by the bailment of the said goods to the Bro­ther of the Defendant; And also it is a thing before executed, and not depending upon the promise, nor the promise upon it: As the Case re­ported by the Lord Dyer 10 Eliz. 272. The Servant is arrested in Lon­don, and two men to whom the Master is well known, bail the said Servant, and after the Master promiseth to them for their friend-ship, to save them harmless from all costs and damages, and in an Action upon the Case brought upon that promise, the Plaintiff was barred, for here is not any consideration, for they bailed the Servant of their own head without the request of the Master, and the matter which is alledg­ged for consideration is executed before the Assumpsit, and the promise was not before the enlargment, and the said bailment was not at the instance,Claytons Rep. 45. 1 Cro. 756. or request of the Master. And the Case of one Hudson was cited, adjudged in the Kings Bench: The Defendant in considera­tion that he was Administrator, and natural Son of the Intestate, and that the goods of his Father have come to his hands, promiseth to pay the debt to the Plaintiff. And in an Action upon the Case upon that promise, the Defendant pleaded he made no such promise, and it was found that no goods came to the hands of the Defendant; And it was holden, that the consideration that he was Administrator and Son to the Testator, was not of any force to maintain the Action, and after­wards in the principal Case the Iudgment was affirmed. And it was moved by Coke that Iudgment should not be given against the Exe­cutor of his own goods if he had not goods of the Testator, for the charge doth not extend beyond the consideration, i. e. That the goods of the Testator came to the hands of the Defendant. But Wray Iustice was of opinion, that Iudgment shall be of his proper goods, as in Case of confession. Kemp Secondary, if the Action be brought upon Assumpsit of the Testator, Iudgment shall be of the goods of the Testator; but of the promise of the Executor, of his own goods; but the Original Iudgment which is now affirmed was general.

CXXII. Savel and Woods Case. Hill. 30 Eliz. In the Kings Bench.

1 Cro. 71. 3 Len. 203. 265. Post, 128.THe Case was; That a Parson did Libel in the spiritual Court a­gainst a Parishoner for Tythes of such Lands within his Parish, the Defendant came into the Kings Bench and surmised, and that he and all those whose estate he hath in the Lands out of which the Tythes are demanded, have used to pay every year five shillings to the Parish Clark of the same Parish for all the Tythes out of the same place: And it was argued by Coke, that that could not be, for a Parish Clark is not a person corporate, nor hath succession: But if he had prescribed, that they had used to pay it to the Parish Clark to the use of the Parson, it had been good: Also he ought to shew, that the Parson ought of right to find the Parish Clark, &c. And he cited the Case of Bushie the Parson of Pancras, who libelled in the Spiritual Court for Tithes, The Defendant to have a prohibition did prescribe, that he, and all those, &c. had time out of mind, &c. used to pay to the Vicar, &c. and at last a Consultation was awarded because it was triable in the Ecclesiasti­cal Court, for both parties as well Vicar as Parson are spiritual per­sons, and the modus decimandi is not in question, but cui solvend. And at another day, it was agreed by the Iustices, that of common right, the Parson is not tied to find the Parish Clark, for then he should be said the Parsons Clark and not the Parish Clark: But if the Parson be tied to find such a Clark,Challenge. and such a sum hath been used to be paid to the Parish Clark in discharge of the Person, the same had been a good prescription, and so by way of composition; and by Clench [Page 95] Tythes are to be paid to spiritual Persons, but a Parish-Clark is a Lay-person: And afterwards the Court granted a Consultation.

CXXIII. Higham and Reynolds Case. Hill. 30 Eliz. In the Kings Bench.

IN an Action of Trespass the Plaintiff declared, that the Defendant 1 Maii 28 Eliz. cut down six posts of the house of the Plaintiff at D. The Defendant doth justifie, because that the Free-hold of the house, 10 Aprilis 27 Eliz. was to I. S. and that he by his commandment the same day and year did the Trespass, &c. upon which the Plaintiff did de­mur in Law, because the Defendant did not traverse, without that that he was guilty before or after. And the opinion of Wray was, that the traverse taken was well enough, because the Free-hold shall be in­tended to continue, &c. Vide 7. H. 7. 3. But all the other three Iustices were of a contrary opinion to Wray: But they all agreed, that where the Defendant doth justifie, by reason of his Free-hold at the day suppo­sed in the Declaration, there the traverse (before) is good enough: And afterwards Iudgment was given against the Defendant.

CXXIV. Knight and Footmans Case. Hill. 30 Eliz. In the Kings Bench.

IN Trespass by Knight against Footman, the Case upon the pleading was, that one Margaret had issue two Sons, Richard and Thomas, Surrender of Copy-hold Land. and surrendred to the use of Richard for life, and afterwards to the use of Thomas in Fee; they both, Thomas being within age, surrender to the use of one Robert [...]ap John in Fee, who is admitted; Richard dieth,Co 1 Inst. 248. Thomas dieth, having issue A. who is also admitted, and enters into the Land, and if his entry be lawful, or that he be put to his plaint in the nature of a Dum fuit infra aetatem was the Question. And Wray was clear of opinion that it was: And if a man seised of Copy-hold Land in the right of his Wife, or Tenant in tail of a Copy-hold doth surrender to the use of another in Fee, the same doth not make any discontinu­ance, but that the issue in tail and the Wife may respectively enter;1 Cro. 372. 380. 391. 483. 717. More 596. and so was it holden in the Serjeants Case, when Audley, who afterwards was made Chancellor of England, was made Serjeant; and afterwards it was adjudged, that the entry of the Enfant was lawful.

CXXV. Sir Wollaston Dixies Case. Mich. 29 Eliz. In the Exchequer.

AN Information was in the Exchequer against Sir Wollaston Dixie, upon the Statute of Vsury, & upon not guilty pleaded,Information upon the Sta­tute of 13. Eliz of Usury. The Infor­me [...] gave in evidence an usurious Contract upon a bargain of Wares: The opinion of the Court was, that the Information being exhibited for the loan of money, that the Evidence was not pursuing nor lead­ing to the Issue. And yet the Iury against the opinion of the Court upon that evidence found the Defendant guilty. And it was moved in arrest of Iudgment, that the Evidence did not main­tain the Information, nor prove the Issue, ex parte Querentis, and it was said, there are three things within the Statute, i. three words, i. bargain, loan, and cheivizance, and these three are several things, [Page 96] and therefore, if the Information be conceived upon loan, and the In­former giveth in Evidence a corrupt bargain for cloth, as it is in this Case, the same doth not maintain the Information; So if the Informa­tion be granted upon usurious contract by way of mortgage, and giv­eth in Evidence an usurious loan, ut supra. But if the Information had been conceived generally, upon an usurious agreement, and giveth in E­vidence a loan, the same is good enough, for every loan is an agreement.

Manwood, There cannot be any loan without bargain, nor any for­bearing without bargain, for he contracts or bargains to do it, viz. to lend, or forbear: Bargain of forbearing is where the first day of pay­ment, is not kept and the parties have agreed for a further day for pay­ment, &c. And it appeareth in this Case, that it was a bargain to for­bear a sum of mony which should have been paid before; And the Infor­mation here is upon a bargain by way of loan, where was a bargain for forbearing. Fuller, this word (Bargain) in the Statute cannot be intended a bargain for wares or such things, and so distinct from the other two things, &c. If in Information upon loan, an usurious con­tract had been given in Evidence, that would not maintain the Infor­mation: And it was moved in this Case, if the time of the loan or for­bearance of the money shall be accounted according to eight & twenty days to every month, or by the months in the Kalender, viz. January, February, &c. And it seemed to some according to the days, as in case of the Statute of 23 Eliz. of Recusants; and others conceived contrary in both Cases. And Fuller said, That in the Case of policy of Assurance made to warrant a Ship, one was bound to warrant a Ship for twelve months; & the truth was, she did not perish within the time of the twelve months, being accounted according to eight and twenty days, but being accounted by the Kalender, as January, Feb. &c. it perished, &c. and it was said and holden, that he had not forfeited his Bond. Gent Baron. If I lend one a hundred pounds without any contract for Interest, and af­terwards at the end of year he gives me twenty pounds for the loan thereof, the same is within the Statute, for my acceptance makes the offence▪ without any bargain or contract. And by Clarke Baron, the place where the Defendant accepted excessive Interest ought to be shewed in the Information, but not the place where the contract for the loan or forbearance was made, for the same is not needful. See the Case betwixt Stradling and Morgan, Plowd. 200. for the setting down of the place in the Declaration, where the Extortion was committed: The Information here is by way of corrupt bargain and loan. The Defendant took at Dertford such a sum, where the taking is layed, apud Dertford, but no place of the corrupt bargain or of the loan. And by Gent. If I lend to Beesie for a year, and afterwards he takes further forbearance of another year beyond the rate, the same is within the Statute: but in all Cases, the place where the corrupt bargain was made ought to be certainly alledged: Manwood Baron, the Information is not good for the incertainty of the place, where the corrupt bargain was made; and although there are many Presidents on the Informes part, it is not to purpose, for they were admitted without exception, and then they passed sub silentio, and so of no force. There are three things, or rather degrees of offences within the Statute. In usury, within the Statute, there ought to be corrupt loan, cheivisance, or shift, 1. corruption, 2. he ought to take more than eight pound for one hundred pounds, 3. it ought to be for lending or forbearing. There was a Case in this Court in the time of this Queen, that the Defendant had taken more than ten pounds in the hundred pounds, but in the Information no corruption in the bargain was alledged; and therefore Iudgment was given against the Infor­mer: But in the Case at Bar corruption is set forth in facto, and therefore as to that the Information is good enough: As unto the for­bearing & giving of days of payment the same is alledged in the Infor­mation, [Page 97] but not according to the Statute, for the Statute is in the dis­junctive, but the Information is in the copulative; here in our Case the issue is Not guilty, under which general issue all the points of the Statute are included and ought to be tried; as unto the corruption the same is not sufficiently laid, for no place is assigned where the corrupt bargain was made, ergo no visne for it to be tried, ergo, no trial can be, ergo, no issue for it, ergo, this point of the Statute doth not come in issue, nor can it be tried upon the general issue, Not guilty. Also he held, that all the Offence ought to be within the year, for if one make a corrupt bargain for this year, and ten years after he takes excessive usu­ry, the same is not within the Statute to inform upon it. And in truth there is no such offence without corrupt bargain, so as he con­ceived, that the word (Lending) is a strange word, but where the Statute is forbearing or giving day of payment, & in the Information it is giving and forbearing in the copulative, that is good enough, for the one word enforceth the other, and is not double. Also the In­formation hath not shewed whose money it is, and therefore it is not good: And afterwards Iudgment was given against the Informer; and a Writ of Error thereupon brought in the Erchequer Chamber. And it was argued by Popham Attorney General, that Iudgment ought to have been given for the Queen and the Informer, for the shewing of the place where the corrupt bargain was made needs not to be al­ledged in the Information, for the offence punishable by the Statute is the receipt of excessive usury, and not the contract: And it was the Case of one Bird, 20 Eliz. where the Plaintiff shewed the place of the Receipt, and not of the contract, and yet had Iudgment for the Queen, without any exception to it before Iudgment, or Error after, for the contract is but inducement to the receipt, and it shall be tried where the taking was; therefore it is not necessary to shew the place of the bargain: And it was adjorned.

CXXVI. Saliard and Everats Case. Mich. 30 Eliz. In the Exchequer.

THomas Saliard and Hen. Everat being Recusants convicted,Recusants. Owen. Rep. 37. and not having paid twenty pounds for every month, a Commission issued forth to enquire of their Goods and Lands in the County of Suffolk, to levy there­on the Debt and penalty due to the Queen. And now the Commission being returned, the parties appeared, and by their Council shewed, that some of their Lands returned in the Commission are Copy-hold, and prayed as to those, Manus Dominae Reginae amoveantur, and that upon the Statute of 29 Eliz. cap 5. concerning Recusants: viz. that upon default of payment of penalties, &c. which process issued out of the Exchequer to take and seize all the goods, and two parts as well of all the Lands, Tenements and Hereditaments, Leases and Farms of such Offender, as of all other the Lands, Tenements, and Hereditaments, liable to such seisure, or to the penalties aforesaid, by the true meaning of this Act, leaving the third part, &c. And Popham Attorney General moved, If a Recusant hath more than a third part of his Lands in Copy-hold land, if this Copy-hold as to the surplusage shall be liable to the penalty. Manwood chief Baron conceived, that the Copy-hold is liable in this Case by the Statute, although not directly by express words, yet within the intent of it, and that by reason of these words all other the lands, &c. liable to such seisure, &c. Walmes. Serjeant, Copy-hold is not liable to a Statute Merchant or Staple; also if the Queen hath the Copy-hold, how shall the Lord have the services which the Queen cannot do? Also a Copy-hold is not an Hereditament with­in this Statute, which extends only to Hereditaments at the common Law, and not by custom: Also in Acts of Parliaments which are enacted [Page 98] for forfeiture of Lands, Tenements, and Hereditaments, by those words they shall not forfeit Copy-holds. Clark Baron, this Statute was made to restrain Recusants from taking the benefit of their Li­vings, and Copy-holds are their Livings as well as Free-holds, and by this Statute, the Queen shall not have every estate in the Copy-hold Land, but only the taking of the profits; but the scope of the Statute was to impair the Livings of Recusants, and that by driving of them for want of maintenance to repair to the Church.

Walmesley, If the Statute had given to the Queen to seise two parts of their livings, then the Statute had extended to Copy-holds. Man­wood, when a Statute is made to transfer an estate by name of Lands, Tenements, and Hereditaments, the Copy-hold is not within such Statute; but if the Lords Signiory, his Customs and Services, are not to be impeached, or taken away by such Statute, then it is other­wise; for such Statute doth not make another Tenant to the Lord; And by him Copy-holder shall pay Subsidies, and he shall be assessed ac­cording to the value of his Copy-hold as well as of his Freehold, and in this Case, the Queen is to have the profits of the Lands only, but no estate. At another day, the case was argued for the Recusants by Snag Serjeant, and he said, that these words Lands, Tenements, and Hereditaments are to be construed, which are such at the Common Law, not by Custom: If I give to one all my Lands, Tenements, and Hereditaments in D. my Copy-holds do not pass, and Statutes which are made to take away Possessions and Hereditaments out of persons ought to be strictly taken, and not by Equity: The Statute of 13 Eliz. of Bankrupts enacts, that the Commissioners may sell the Lands and Tenements of the Bankrupts; if the Statute had not made a further provision, the Commissioners could not sell Copy-hold Lands, but there are express words in the Statute for that purpose, i.e. as well copy as fee: Also the Staute of 13 Eliz. cap. 4. of Auditors and Receivers of the Queen doth not extend to Copy-holds: And it should be a great prejudice to the Lords of such Copy-holds, that the Queen should have the Land. Popham, the intention of the Law somtimes causes a liberal construction of a Statute in the letter of it,What Sta­tutes extend to Copy-holds. somtimes a strict and precise exposition, and here it appeareth, that the intention of the Statute was, that the Queen should have all the goods of the offen­der, and two parts of the Lands, &c. Leases and Farms, and the Re­cusant but the third part of all his Lands only; And therefore the Re­cusant is not to have any other thing but only that which is allotted to him by the Statute, and that is the third part, which is all the mainte­nance which the Law allows him; and then if Copy-holds be not within this Statute, a Recusant who hath great possessions in Copy-holds, and hath no Free-hold should be dispunishable, and hath his full main­tenance, against the meaning of the Statute: And he said that many things are within the meaning of a Statute, [...]y. 5. 6. Co. 3. Inst. 109 Yel. 60. 12 Co. 12. which are not within the words, as Bonds, Obligations and Specialties made to Recusants, shall pass to the Queen by this Statute by force of the word, goods, ac­cording to the meaning of the Statute, and all personal things are within the Statute, &c. profits of the Lands, Advowsons, and the like; and the very scope of the Statute was to take away from Recu­sants all personal things whatsoever, and two parts of real things, as Leases, Farms, Lands, Tenements, &c. with the intent that with the superfluity of their goods and possessions, she should not maintain Ie­suits, and Seminary Priests, people more dangerous than the Recu­sants: And by him, Lands in ancient demesne are liable to the penalties by the Statute; although not by express words; So if a Re­cusant hath Lands extended by him upon a Statute acknowledged un­to him, that Interest is not properly a Lease, or Farm, yet it is Land within this Statute liable, &c. And if I be Tenant by Elegit, or Sta­tute, [Page 99] &c. of Lands in D. not having other Lands in the said Town, and I grant all my Lands in D. my Interest ut supra, shall pass; con­trary, If I have other Lands there: And I grant, that if I have Co­py-hold Lands in D. and none other, and I grant all my Lands in D. Copy-hold Land shall not pass by such assurance; because that Copy-hold cannot pass but by surrender; If I put out a Copy-holder out of his Lands, the same is a Disseisin to the Lord of whom the Copy-hold is holden: And if I levy a Fine of such Lands and five years pass, not only the Lord is bounden as to his Free-hold and Inheritance, but also the Copy-holder for his possession, for the intent of the Sta­tute of 4 H. 7. was to take away controversies, & litibus finem imponere, 5 Co. 124. and contention may be as well for Copy-hold as for Land at the common Law. One hath a Lease for years to begin at a day to come, he who hath the Free-hold thereof is disseised, the Disseisor levieth a Fine, five years pass, he who hath the Free-hold is bound by it, but not he who hath the Interest for years in futuro, as it hath been lately adjudged; But he said, That if that point were to be handled again, the Law would be taken to the contrary; but it is clear that a Lease in possession shall be bound by such Fine: And as unto any prejudice to the Lord it is clear, that notwithstanding that the Queen hath the Copy-hold Land, yet the Lord shall have the Rent during the possession of the Queen, which is the most valuable part of the services of the Copy-holder. The Statute of 1 E. 6. of Chantries, doth extend to Copy-hold, by the general words, Lands, Tenements, and Hereditaments, for other­wise the Proviso which excepts Copy-holds were not necessary: And in our Statute, the words are Lands, Tenements, and Hereditaments, which are forceable words, which proves that our exposition to extend it to Copy-holds is proper and agreeable to the Statute, and this in the first branch of it; for Copy-hold is some Land, Tenement, or Here­ditament; the clause in this branch of the Statute is, and also all other the Lands, Tenements, and Hereditaments liable to such seisure, &c. the same is to be meant of such Lands which are bound with clause of revocation, of which is spoken in the former part of this Statute. He who departs out of the Realm against the Statute of 5 R. 2. shall forfeit his goods, and thereby his debts also: The King grants omnia bona & catalla felonum, Debts of Felons shall pass; Ergo Copy-holds also,2 L [...]n. 56. Post. 201. 202. by the name of Lands, Tenements, &c. as well as debts by the name of goods. In our Case, the meaning of the Statute was, that the Queen should have two parts of the whole estate of the Recusant, be it Copy-hold, Ancient demesne, &c. If upon the Statute of Bankrupts, a Copy-hold estate be sold to the King, the King shall pay the Rent, but shall not do any of the services, and in so much the Lord shall be prejudiced; patiatur etiam & hic, rather than Recusants should not be punished; and it is not a strange thing in Law, that the Lord of a Copy-holder should be prejudiced for the offence of his Tenant; as where a Copy-holder is outlawed, the King shall have the profits of his Copy-hold Lands, and the Lord hath not any remedy for his Rent.

CXXVII. Stebbs and Goodlacks Case. Pasch. 30 Eliz. In the Kings Bench.

BEtwixt Stebbs & Goodlack, the Case was, the Parson of Letcome in the County of Berks, libelled in the Spiritual Court for Tithes,Fraud shall not avoid payment of Tithes. the Defendant shewed, that the custome of the Town of Letcome is, that the Parson shall have for his Tithes the tenth Land sowed with any man­ner of corn, and he shall begin his reckoning always at the first Land which is next to the Church, &c. The Parson shewed that the Defen­dant, by fraud and covin sowed every tenth Land which belonged to the Parson, ut supra, very ill and with small quantity of corn, and did not dunge or manure it as he did the other nine parts, by means where­of, [Page 100] whereas the other nine every of them yielded eight Cocks, the tenth yeilded but three Cocks, and for this matter the Parson libelled in the Spiritual Court and confessed the custome, but for abusing of the cus­tom prayed to have his Tythes in kind; the Defendant prayed a pro­hibition, and the Parson afterwards a consultation: And the opinion of Wray Iustice was that the custom was against common reason, and so void, but if it be a good custom, then the Parson shall have the Acti­on upon the case.

CXXVIII. Rumney and Eves Case. Pasch. 30 Eliz. In the Kings Bench.

Copy-holder.IN Ejectione firmae by Jane Rumney against Lucie Eve, it was holden, that if customary Land do descend to the younger Son by custom, and he enters and leaseth it to another, who takes the profits, and after is ejected:Poph. 39. 4 Co. 22. That he shall have an Ejectione firmae without any admittance of his lessor or presentment that he is heir. For which the Defendant shewed, that there were thirty years incurred betwixt the death of the Father, and the making of the Lease, so that here is supina negligentia, which shall disable his person to make any demise, quod fuit concessum. In answer of which it was said, that the Lessor at the time of the death of his Ancestor was but of the age of two years, and that after his full age no Court had been holden for a long time, and that at the first Court that was holden, which was of late, he prayed to be admitted, but the Steward refused to admit him; and the same was holden a good excuse of his negligence: And it was holden, that the Plaintiff ought not to shew that the Lease is warranted by the custom,1 Cro. 469. 483. 717. 728. Ante 16. but that shall come of the other side; and so it had been lately adjudged, which Wray granted: And by him, if a Copy-holder surrender in extremis to the use of himself for life, &c. If he shall be well again, the surrender shall stand,4 Len. 30. 31. 8 Co. 100. for he hath reserved an estate to himself. It was further holden in this Case, that if a Copy-holder dieth, his Heir within age, he is not bound to come at any Court during his non-age to pray ad­mittance, or to tender his Fine: Also if the death of the Ancestor be not presented, nor proclamations made, he is not at any mischeif, al­though he be of full age.

CXXIX. Saint-John and Petits Case. Pasch. 30 Eliz. In the Kings Bench.

IT was covenanted betwixt Saint-John and Petit, that Saint-John should present Petit to the Church of A. and that afterwards Petit should lease the Parsonage to Saint-John, or to any other person named by him, and that the said Petit should not be absent by eighty days, and that he should not resign; and Petit was bound to perform these Covenants, & Petit is presented to the Benefice: Saint-John brought an Action upon the Obligation, pretending, that he could not enjoy his lease by reason of the absence of the said Parson, &c. And the Lease was made to the Curate at the nomination of Soint-John. The Parson said, that the Ob­ligation is void by the Statute of 14 Eliz. cap. 11. See the Statute, All Leases, &c. made by any Curate shall be of no better force, than if it had been made by the beneficed Parson himself. Tanfeild by 13 Eliz. 20. When a Parson leaseth to his Curate, who leaseth over, The Sta­tute doth not make the Lease void by any absence of the Parson, but of the Curate by forty days. Quaere. For that it seemeth, that by the Statute of 14 Eliz. the Curate cannot lease, &c.

CXXX. Gates and Halliwels Case. Pasch. 30 Eliz. In the Kings Bench.

BEtwixt Gates and Halliwel the Case was, one having two Sons,3 Len. 55. de­vised, that his eldest Son with his Executors should take the pro­fits of his Lands until his youngest Son should come to the age of two and twenty years, and that then the said youngest Son should have the Land to him and the Heirs of his body: It was holden clear­ly by the whole Court, that the eldest Son should have Fee in the in­terim until the youngest Son came to the said age.

CXXXI. Prowse and Carys Case. Pasc. 30 Eliz. In the Kings Bench.

PRowse brought an Action upon the Case against Cary for words: That the Plaintiff did subborn, procure, and bring in false Witnes­ses in such a Court at Westminster, &c. The Defendant pladed, Not guilty: And it was found, that he did procure and brought in false Witnesses, but was acquitted of the suborning. It was objected,1 Cr. 296. 554. 607. That the Action doth not lie, for it may be, that the Defendant did not know that he would depose falsly: Thou art a forger of false Writ­ings are not actionable, and so it was adjudged, for it may be under­stood of Letters of small importance; but that Exception was not allowed, for it shall be taken in malam partem, and cannot be spoken of any honest man.

CXXXII. Pasch. 30 Eliz. In the Kings Bench.

A. Was bounden in an Obligation to B. upon condition, that if A▪ deliver to B. twenty Quarters of Corn the nine and twentieth of February next following, datum presentium, that then, &c. and the next February had but eight and twenty days: And it was holden, that A. is not bounden to deliver the Corn, until such a year as is Leap-year, for then February hath nine and twenty days, and at such nine and twentieth day he is to deliver the Corn, and the Obligation was holden good.

CXXXII. Allen and Palmers Case. Pasch. 30 Eliz. In the Kings Bench.

THe Case was, a Copy-holder did surrender his Lands to the use of a stranger for life,Copy-holder surrenders where his heir shall be in by purchase. 2 Roll. 416. Co. 1 Inst. 226. and afterwards to the use of the right Heirs of the Copy-holder, who afterwards surrendred his Reversion to the use of a stranger in Fee, & died, and the Tenant for life died, and the right Heir of Palmer the Copy-holder entred; And by Cook nothing remained in the Copy-holder upon the said surrender, but the Fee is reserved to his right Heirs, for if he had not made any such second surrender, his Heir should be in, not by descent but by purchase. And the common difference is, where a surrender is to the use of himself for life, and afterwards to another in tail, the remainder to the right Heirs of him who surrendreth, there his Heirs shall have it by descent; contrary where the surrender hath not an estate for life or in tail limited to him, for [Page 102] there his Heir shall enter as a purchasor, as if such use had been limit­ted to the right Heirs of a stranger. And by him, if a Copy-holder sur­render to the use of his right Heirs, the Land shall remain in the Lord until the death of the Copy-holder, for then his Heir is known, &c. See Dyer 99. The Husband made a Feoffment to the use of his Wife for life, and afterwards to the use of the right Heirs of the body of the Hus­band and Wife begotten, they have issue, the Wife dieth, the issue can­not enter in the life of his Father, for then he is not his Heir. See Dyer 7 Eliz. 237. The Husband is sole seised in Fee, and levieth a Fine of the Land to the use of himself and his Wife, and the Heirs of the Husband, and they render the Land to the Conusor for the life of the Husband, the remainder to B. for life, the remainder to the right Heirs of the Husband: The Husband dieth, B. dieth: Now the Wife shall have the Land for the life of the Wife, for she shall not lose her estate by that render; and this remainder to the right Heirs of the Husband is void, and the Land and estate in it is in him as a Reversion, and not as a Remainder. And a man cannot tail a Remainder to his right Heirs whilest he is living, unless it begin first in himself. See Br. 32 H. 8. Gard. 93.

CXXXIV. Pearle and Edwards Case. Pasch. 30 Eliz. In the Kings Bench.

THe Case was, that the Defendant had leased Lands to the Plain­tiff rendring Rent for certain years,Assumpsit. Consideration. 1 Cro. 94. and after some years of the Term expired, the Lessor in consideration that the Lessee had occupied the Land, and had paid his Rent, promised the Plaintiff to save him harmless against all persons, for the occupation of the Land past, and also to come: And afterwards H. distrained the Cattle of the Plaintiff being upon the Lands, upon which he brought his Action▪ Golding, Here is not a sufficient consideration, for the payment of the Rent is not any consideration, for the Lessee hath the ocupation of the Land for it, and hath the profits thereof; and also the consideration is past. Cook, The occupation, which is the consideration, continues, therefore it is a good Assumpsit, as 4 E. 3. A Gift in Frank-marriage after the espou­sals, and yet the marriage is past, but the blood continues, so here; and here the payment of the Rent is executory every year; and if the Lessee be saved for his occupation, he will pay his Rent the better. God­frey, If a man marrieth my Daughter against my will, and afterwards in consideration of that marriage I promise him one hundred pounds, the same is no good consideration,2 Len. 111. which Clench Iustice denied. And afterwards the Plaintiff had Iudgment to recover his damages.

CXXXV. Wakefords Case. Pasch. 30 Eliz. In the Kings Bench.

Extinguish­ment of Copy-hold by Re­lease.THe Earl of Bedford Lord of the Manor of B. sold the Free-hold Inte­rest of a Copy-holder of Inheritance unto another, so as it is now no part, but divided from the Manor, and afterwards the Copy-holder doth release to the purchasor. It was holden by the Court, that by this Release the Copy-hold Interest is extinguished, and utterly gone; but if was holden, that if a Copy-holder be ousted, so as the Lord of the Manor is disseised, and the Copy-holder releaseth to the Disseisor nihil operatur.

CXXXVI. Docton and Priests Case. Pasch. 30 Eliz. In the Kings Bench.

IN Trespass for breaking of his Close,1 Cro. 95. it was found by special ver­dict, that two were Tenants in common of a house, and of a close [...]djoyning to the house, and they being in the house make partition without deed of the house and the close, see 3 E. 4. 9. 10. Partition with­out deed upon the Land is good enough: Vide 3 H. 4. 1. And it seems by 3 E 4. Partition made upon the Land amounts to a Livery: Vide 2 Eliz. Dyer 179. Partition by word out the County void, 19 H. 6. 25. Betwixt Tenants in common not good without deed;2 Roll. 255. 47 E. 3. 22. being upon the Land it is good without deed: Two Ioynt-tenants make partition by word, & make partition in another County, the same is no partition, for as to that matter the common Law is not altered by the Statute, but as to compel such persons to make partition. Wray Iustice concei­ved, that the partition here being without deed was not good, al­though made upon the Lands: Vide 18 Eliz. Dyer 35. And at another day Wray said,Dy. 179. that partition by Tenants in common without deed wheresoever it is made is good; but in this case it appears, that the parties who made the partition were in the house (for they were Te­nants in common of the Messuage and a close adjoyning to it) and made partition, that one should have the house,6 Co. 12. and the other the close, so as they were not upon the close when they made the partition, and then it was void for the close, and if for the close then also for the house. And Iudgment was given accordingly.

CXXXVII. Cook and Songats Case. Pasch. 30 Eliz. In the Kings Bench.

IN an Action upon the case by Cook against Songat, the Plaintiff de­clared, Quod cum quaedam Lis and controversie had been moved be­twixt the Plaintiff Lord of the Manor, &c. and the Defendant claim­ing certain Lands parcel of the said Manor, to hold it by copy; and whereas both parties submitted themselves to the Iudgment and Ar­bitrament of I. S. Counsellor at Law, concerning the said Land, and the title of the Defendant to it: The Defendant in consideration that the Plaintiff promised to the Defendant, that if the said I. S. should ad­judge the said Copy to be good and sufficient for the title of the De­fendant, that then he would suffer the Defendant to enjoy the said Land accordingly without molestation: The Defendant reciprocally promised the Plaintiff, that if the said I. S. should adjuge the said Co­py not sufficient to maintain the title of the Defendant, that then he would deliver and surrender the possession of the said Land to the Plaintiff without any sute: And shewed further, that I. S. had awarded the said Copy utterly insufficient, &c. yet the Defendant did continue the possession of the Land, &c. And by Godfrey, here is not any consider­ation: But by Gawdy, the same is a good and sufficient consideration, because it is to avoid variances and sutes: And Iudgment was given for the Plaintiff.

CXXXVIII. Pawlet and Lawrences Case. Pasc. 30 Eliz. In the Kings Bench.

GEorge Pawlet brought an Action of Trespass against one Lawrence, Parson of the Church of D. for the taking of certain Carts load­ed with Corn, which he claimed as a portion of Tythes in the Right of his Wife; and supposed the Trespass to be done the seven and twentieth of August, 29 Eliz. & upon Not guilty it was given in evidence on the Defendants part, that the Plaintiff delivered to him a Licence to be married, bearing date the eight and twentieth of August, 29 Eliz. and that he married the Plaintiff and his said Wife the same day, so as the Trespass was before his title to the Tythes: And it was hol­den by the whole Court, that that matter did abate his Bill: But it was holden, that if the Trespass had been assigned to be commit­ted one day after that, it had been good; but now it is apparent to the Court, that at the time of the Trespass assigned by himself, the Plaintiff had not Title, and therefore the Action cannot be maintain­ed upon that evidence, for which cause the Plaintiff was Non-suit.

CXXXIX. Sir John Braunches. Case. Mich. 30 Eliz. In the Kings Bench.

Forfeiture.IN the Case of Sir John Braunch, it was said by Cook, that if a Copy-holder be dwelling in a Town long distant from the Manor, a ge­neral warning within the Manor is not sufficient, but there ought to be to the person notice of the day when the Court shall be holden, &c. For his not coming in such case cannot be called a wilful refusal:Copy-holder. So if a man be so weak and feeble that he cannot travel without danger, so if he hath a great Office, &c. these are good causes of excuse: It was also holden, that if a Copy-holder makes default at the Court, and be there amerced, although that the amercement be not estreated, or levyed, yet it is a dispensation of the forfeiture. Gawdy Iustice, If the Copy-holder be impotent, the Lord may set a Fine upon him, and if he will not pay the Fine, then it is reason that he shall forfeit his Land. Egerton Sollicitor, Warning to the person of the Copy-holder is not necessary, for then, if the Lord of a Manor hath one Copy-holder of it dwelling in Cornwal, and another in York, &c. the Lord ought to send his Bayliff to give notice of the Court to them, which should be very inconvenient, and by him continual default at the Court doth amount to a wilful refusal. And by the whole Court, general warn­ing within the Parish is sufficient,1 Cro. 353. 505. 506. for if the Tenant himself be not Resient upon his Copy-hold, but elsewhere, his Farmer may send to him notice of the Court: And it was further given in evidence, that Sir John Braunch had by his Letter of Attorney appointed the Son of his Farmer his Attorney to do the services for him due for his said Copy-hold: And it was holden that such a person so appointed, might essoin Sir John, but not do the services for him, for none can do the same but the Tenant himself.

CXL. Wilkes and Persons Case. Mich. 30 Eliz. In the Kings Bench.

JOhn Wilkes and Margery his Wife, and Thomas Persons brought Tres­pass, Quare clausum fregit, herbam suam messuit, & foenum suum asportavit, Trespass. ad damnum ipsius Johannis, Margeriae, & Thomae; And exception was taken, that it was not the Hay of the Wife, nor she was not damnified by it, but her Husband: Wray Iustice, the Declaration is good enough,1 Cro. 96. Re­cord. for al­though it be not good for the Hay, yet clausum fregit & herbam messuit, makes it good: And Iudgment was given for the Plaintiffs.

CXLI. Atkinson and Rolses Case. Mich. 30 Eliz. In the Common Pleas.

IN an Action upon the case by Atkinson against Rolfe, the Plaintiff de­clared, that the Defendant in consideration of the love which he [...]ore unto A. his Father, did promise that if the Plaintiff would procure a discharge of a Debt of I. S. which his said Father owed to the said I. S. that he would save the Plaintiff harmless against the said I. S. And de­clared further, that he had discharged the Father of the Defendant from the said Debt, and is become bounden to the said I. S. in an Obli­gation for the payment of the said Debt, upon which Obligation the said I. S. hath sued the Plaintiff, and hath recovered, and had execution accordingly, and so hath not been saved harmless, &c. It was objected, that the Declaration was not good, because the Plaintiff hath not shewed in his Declaration, that he had given notice to the Defendant of the said Obligation, or of the suit brought against him; but that was not al­lowed, but the Declaration was holden to be good, notwithstanding the exception. Shuttleworth. if I be bound to make to you such an assur­ance as I. S. shall devise, I am bound at my peril to procure notice:Notice. but if I be bound to you to make such assurance as your Counsel shall advise, there notice ought to be given unto me. It was adjorned.

CXLII. Bear and Underwoods Case. Mich. 30 Eliz. In the Common Pleas.

IN a Replevin it was agreed by the whole Court, that the Plaintiff cannot discontinue his suit without the privity of the Court; for as Leonard, Custos brevium, said, the Entry is, Recordatur per curiam; Discontinuance of suit in court. And if the Plaintiff would discontinue without moving the Court, the Defen­dant may enter the continuance if he will. It was also holden, that where an Original is discontinued, the Defendant shall not have costs; but if the Plaintiff be non-suit the Defendant shall have costs, by 32 H. 8. 15. But after a discontinuance in a Latitat, the Defendant shall have costs by the Statute of 8 Eliz. cap. 2. And in this case it was agreed, that the Plaintiff may be non-suit after a Demurrer, and so he was.

CXLIII. Jerom against Neal and Clave. Pasch. 30 Eliz. In the Kings Bench.

GEorge Jerom, and Avice his Wife brought an Action of Trespass of As­sault and wounding of the Wife,Assault and Battery. and the Action was laid in Midd. and brought against Neal and Cleave, who pleaded that Salisb. is an antient City, & that within the same, there is this custom, that if any make an [Page 106] Affray and assault any Officer of the said City, or any other person, if he upon whom such assault is made, complain unto the Mayor of the said City, that the Mayor for the time being may send for him who made the Affray as a Iustice of Peace, to make him to answer to it, and shewed further, that the said Jerom made an Affray within the said City; of which complaint being made to the Mayor, the said Mayor sent the Defen­dants being Constables to bring the said Jerom to him, by virtue where­of, they went to the House of the Plaintiff, and signified to him the com­mandment of the said Mayor, and would have brought the Plaintiff to him, and the Wife of the Plaintiff did assault them, and they moliter put their hands upon the said Wife,Imprisonment not good. which is the same assault, battery, and wounding, &c. upon which it was demurred in Law. Coke for the Plain­tiff; This custom is not good or reasonable: See Magna charta 29. Nullus liber homo capiatur, vel imprisonetur, &c. nisi per legale judiciam parium suorum vel per legem terrae, therefore shall not be taken or imprisoned upon a bare sug­gestion, and see 24 E. 3. Br. Com. 3. where a Commission issued to take all which were suspected notoriously for Frionies and Trespasses, al­though they are not endicted, and the same was holden against the Law, and therefore it was revoked, and see the Statute of 5 E. 4. 9. 25 E. 4. 13. 28 E. 4. 13. 28 E. 3. 3. 37 E. 3. 18. & 42 E. 3. 3. 2. To be a Iustice of Peace doth not lye in Prescription. For one Iustice of Peace was before the Statute of 1 E. 3. and then the Commencement being known, prescrip­tion cannot be of it. 3. Admit, that the Mayor was Iustice of Peace, yet he cannot determin any thing out of the Sessions. 4. The Prescrip­tion is, that the Mayor might send for him, and doth not say within the City, and it shall be an unreasonable Prescription to say, that the Mayor might send for him in such Case, in any place within England. 5. It is not shewed that they of Salisbury have a corporation, so as they might be enabled to prescribe. 6. The wounding is not answered, for moliter injicere manus cannot be taken for a wounding; it may well answer the battery, &c. Fleetwood Recorder of London, if the Statute of Magna Charta should be observed, no Felon is duly handled at Newgate, and here we have not pleaded by way of Prescription, but of usage; consuetudo and usage are all one.1 Cro. 268. And afterwards Iudgment was given for the Plaintiffs, for the Plea in Bar was holden to be naught, because the wounding is not answered; and the Custom is too general, and also for the 4th exception.

CXLIV. Sir Julius Caesars Case. Pasch. 30 Eliz. In the Kings Bench.

FLeetwood came to the Bar and shewed, that Julius Caesar Iudge of the Admiralty had libelled against an Officer of the Mayor of Lond. Simon Nicholas, for measuring of Coals at Wiggins Key, in the Parish of St. Dun­stan in the East, and it was upon the Thames, and prayed a prohibition, be­cause such measuring of Coals had always appertained to the Mayor of London; for the Statute of 28 H. 8. 15. gave Iurisdiction to the Ad­miralty in Case of robbery and murder: And that prohibition was grounded upon the Statutes of 13. & 15 R. 2. 2 H. 4. 11. And it was said, that this measuring whereof, &c. was in the body of the Coun­ty; And note, that the said Julius Caesar, being Iudge of the Admiralty had put in this Bill, ex officio judicis, upon which it was said by Wray Iustice, that it was hard that he should be both Plaint. and Iudge, and that his Iurisdiction should be tryed before himself, and afterwards, it was moved by Egerton Solicitor, who said he had spoken with the Lord Admiral, who told him that the Mayor of Lond. used to take a Fine for measurage, and had made an office of it, and that he conceived, the same is extortion, and being made upon the water, he conceived he is punishable in this Court, for by the same reason the Mayor might take a Fine for the measuring of Corn, Clothes, &c. Wray and [Page 107] Gawdy Iustices; If it be extortion in the Mayor, there is no remedy for it in the Court of Admiralty: But in the Kings Court. Gawdy; It shall be redressed here in a Quo warranto.

CXLV. The Town of Sussex. Pasch. 30 Eliz. In the Kings Bench.

THe Town of Green in Sussex was amereed for the escape of a Felon,Amercement. and the said Amercement was grounded upon an inquisition taken before the Coroner, by whom the escape was found; and it was moved for the Town, that here is not any such escape found,Escape. for which the Town ought to be amerced, for it is found, that he who escaped, 10 die Januarij, 30 Eliz. circa horam quartam post meridiem, with a Pitchfork mortally struck one A. which A. of the said stroak died at eight in the Evening of the same day, and that then the other escaped, for which escape be­ing made in the Night, the Town by the Law ought to be amerced, for it is not Felony, until the party dieth, which see 11 H. 4. and Coles Case, Pasch. 23 Eliz. 401. And therefore the Town nor any other was chargeable with the offendor before that the party was dead. Wray; It should be hard, that the Town should be amerced upon this matter, for although the Town in discretion might have stayed the offender before the death of the party, yet it is not bound so to do: And the Court took time to advise of the Case.

CXLVI. Jerom and Knights Case. Pasch. 30 Eliz. In the Kings Bench.

JOan Jerom brought an Action upon the Case in the nature of Conspi­racy against one Knight, and declared,Conspiracy, 1 Cro. 70. that the said Knight had mali­tiously caused the Plaintiff to be endicted of Felony, and to be arrained upon it, and that she was legitimo modo acquietat. &c. And the Case was, that the Defendant came into the Court where the Sessions was hold­en, and complained of the Plaintiff for the said Felony, for which the Iustices there comanded her to cause an Indictment to be drawn, &c. Coke upon the Books of 27 H. 6. 12. 35 H. 6. 14. 27 H. 8. 2. Fitz. 115. It appeareth, that if one come voluntarily into the Court and discover Felonies, and if it be true which he saith, or if he come in Court and draw an Indictment by the command of the Iustices, or if he be bound by order of Law, to cause the party to be Indicted, or to give in Evidence, although he do it falsely, yet he shall not be punished for the same in Conspiracy, or in an Action upon the Case; But if he come gratis with malice in him before, and maliciosly and falsely cause the party to be Indicted, so as falsity and malice are the ground of it, &c. it is otherwise. Gawdy Iustice; How shall it be tried, if he doth it with malice or not? Coke, It may be enquired of, for malice makes the difference be­twixt Murder and Manslaughter; and in such case it is to be enquired, and here he came to do the same without Process or cohersion in Law. But if he will safely do such office, his direct course is to come to a Iustice of Peace, and to shew to him, that his Goods are stolen, and that he doth suspect such a one, and then upon examination he shall be bound to come and give in Evidence against the party, &c. and in such case although that his Evidence he false, yet he is not punishable:Owen 158. At another day, it was said by Coke in the same case, ut supra. If a man be bound to give Evidence against any person, although he give false Evidence, no Action lieth: Also if one come into Court gratis, and dis­closeth a Felony, and gives Evidence, if no malice proceed against the party, it is not punishable; and here fore thought malice is alledged, and put in the Declaration, to which the Defendant hath pleaded not guilty; And now he is found guilty. See the Statute of Westminster, [Page 108] 2. Cap. 12. Si inveniatur per inquisitionem quod aliquis sit abettator per malitiam, &c. Wray Iustice; It should be hard to charge one with this Action, where he hath his goods stolen from him, and therefore causeth an Indictment to be drawn against one who he suspects of it, who shall be found guilty, who should be punished for it; for many Malefactors notwithstanding that the Evidence against them be full and pregnant, in favour of life are acquitted, whereas by Law they ought to be hanged; and it is not reason,Upon an Ac­quital of Grace, no Conspiracy lieth. that upon such an acquital of grace and mercy, he should have this Action; if such person had used any words of malice before the Ses­sions, an Action upon the case would have lain: And afterwards Iudg­ment was given for the Plaintiff, Trin. 27 Eliz. 750. Ratford, and after­wards a Writ of Error was brought, Trin. 29 Eliz. Rot. 669. In the Original Action the Writ and Declaration were that the Defendant, malitiose in­tendens querentem in nomine, vita, fama, & bonis defraudare quandam Billam Indicta­menti scribi fecit, & eam exhibuit to the grand Enquest, & ibidem false deposuit omnia in ea contenta esse vera, which by Coke is full matter of conspiracy; for the drawing of an Indictment is not the office of a witness, but if it were by the commandment of the Court, or of one Iustice of Peace, it should be otherwise, for there he goes by course of Iustice, 21 E. 3. 17. If one conspire with another, and afterwards he procures himself to be one of the Indictors, his oath shall not excuse his malice before. Gawdy, If the party had taken upon him to proceed against the party upon any good presumtions, he might have pleaded it, as to say, he found the party in the house suspiciously, &c. but because he doth not plead any such matter, but generally not guilty, and the Writ and Declaration stand not answered specially, nor controlled with the Verdict, there is no reason but that the Iudgment should be affirmed; And afterwards, the Iudgment was affirmed, and it was said by Wray, that here the words in the Writ and Declaration are all one as the words in a Writ of conspiracy, and the Defendant hath not shewed any special matter to enduce him to the proceedings.

CXLVII. Ferrers Case. Pasch. 30 Eliz. In the Kings Bench.

HUmphry Ferrers brought an Action upon the case, and declared, that he is seised of an ancient messuage in the Town of Tamworth, Prescription. and that he and all his Ancestors, whose heir he is, owners of the Messu­age, &c. have used time out of mind, &c. to erect Herdells, in aperta platea of Tamworth juxta Messuagium praedict. every Market day, to make Penns there for Sheep, and that he, &c. have used for such penning of Sheep, there to take divers sums of mony of such persons who would Penn their Sheep there; and further declared, that the Defendant had broken and pulled down his Herdels, per quod proficuum suum inde amisit; And up­on this Declaration, Godfrey did demur in Law, 1. The Plaintiff hath not shewed in his Declaration, specially where he hath used to erect his Herdels, but generally in aperta platea, without shewing in his own Land, or in the Land of another; if in the Land of another, it is no good title, for although that those who fish in the Sea may prescribe to set Stakes on the Land adjoyning to the Sea, to hang their Nets to dry after they have done Fishing, and that is through the whole County of Kent 8 E. 4. for their prescription is for the common Wealth, but the same is not so here, but only for a pri­vate gain; also no prescription is good, but where some profit comes to him who prescribes for it, which see in the case of the Abbot of Buck­fast, 21 E. 4. 4. 21 H. 7. 20. Also the Declaration is, that the Plaintiff hath taken diversas denariorum summas, and see the Prior of Dunstables case, [Page 109] 11 H. 6. 19. 19 R. 2. Action surle Case 51. But the certainty of the sums do not appear in this Declaration, so as the reasonableness of the custom might be known: Also it appeareth here upon the Declaration, that Trespass, vi & armis, should lye and be brought, for the Declaration is, that the Defendant did break and pull down the Herdels which can­not be without express force, as 42 E. 3. 24. Trespass upon the case a­gainst a Miller, and declared that the Plaintiff used to grind at the said Mill without Toll, and that he sent his corn to the said Mill to be ground, and there the Defendant came and took two Bushels of his said corn; And the Writ was upon the prescription to grind sine multura, and that the Defendant, praedict. querent. sine multura molire impedivit, and by Award of the Court the Plaintiff took nothing by his Writ, for he hath declared that the Defendant hath taken Toll, and therefore he ought to have a general Writ of Trespass. Beaumont, to the contra­ry; A Market is as well for the common Wealth as a Fishing: Also he is at the costs for providing of Herdels, and the erecting of them, so (as he hath declared) he hath taken divers sums of mony for it; and as to any sum not certain, it is well enough, for peradventure sometimes he hath taken a penny, sometimes two pence, as the parties could a­gree: And as to the exception of vi & armis, the same is not material, for the Plaintiff doth not rely upon the pulling down of the Herdels only, but upon the loss of the mony also, which he should have had if the Defendant had not broken his Herdels: And afterwards Iudg­ment was given for the Plaintiff.

CXLVIII. Beverly and Bawdes Case. Pasch. 30 Eliz. In the Kings Bench.

BEverly brought a Writ of Error to reverse an Out-lawry pronounced against him at the suit of one Bawdes, and shewed,Error. that he was out­lawed by the name John Beverly of Humby in the County of Lincoln Gent. And that within the said County there are two Humbyes, scil. Magna Hum­by, & Parva Humby, and none without addition; To which it was said, of the other side, that the truth is that there are two such Towns, and that Humby Magna is known as well by the name of Humby only, as taken for the name of Humby Magna: And upon that they are at Issue: And it was moved,Tryal by In­quest of what County or place. if the Inquest to try this Issue shall come de corpore comitatus, or from Humby Magna. And by Cooke, it shall be tryed by an In­quest of Humby Magna; and he confessed, that if the Issue had been, No such Town; then the Inquest ought to be of the body of the County, but here is another Issue to be tryed, 22 E. 4. 4. In Trespass done in Fulborn and Hinton in the County of C. The Defendant said, that there is no such Town nor Hamlet of Hinton within the same County. Iudg­ment of the Writ. See there by Briggs the tryal shall be, de corpore comi­tatus. See 14 H. 6. 8. Over-dale and Nether-dale, and none without addition, and so at Issue tryed by them of the body of the County, 35 H. 6. 12. And by him, wheresoever an Issue may be tryed by an Inquest out of a special Visne, there it shall never be tryed by the body of the County. As the case before, 22 E. 4. Trespass in two Towns A. and B. The Def. as to A. pleads, there was no such Town, and as to B. pleaded another plea. Now the whole Inquest shall come out of B. for the Inquest in one Town may try any thing within the same County, which see Fitz. Visne, 27. 22 E. 4. 4. And here in our case the Issue is, if Humby Magna be as well known by the name of Humby only, as by the name of Humby Magna. And therefore the same may well be tryed by Inquest out of the Town of Humby Magna. But by Wray Iustice, this Issue doth amount to no such Town, for the perclose of the plea is, and no Humby with­out addition; and the book cited out of 22 E. 4. is not ruled, but [Page 110] is only the opinion of Brian. and afterwards it was awarded, that the tryal was well. Another matter was objected, because it is not shewed in the Writ of Error betwixt what parties the first Writ did depend, for otherwise how can the Plaintiff in the Writ of Error have a Scire facias ad audiendum Errores, if none be named in the Writ of Error against whom it shall issue. And Godfrey affirmed, that upon search of Presidents it was both ways, so as it is at the pleasure of the Plaintiff to do it or not. And Kemp Secondary shewed divers Presidents to that purpose: And afterwards the Out-lawry was reversed.

CXLIX. Cibel and Hills Case. Pasch. 30 Eliz. In the Common Pleas.

Debt for a Nemine pene. A Lease was made of a certain House and Land rendring Rent, and another sum, Nomine poenae; and for the Nominae poenae the Lessor brought an Action of Debt: The Lessee pleaded, that the Lessor had entred into parcel of the Land demised,Roll. Tit. Ex­tinguishment upon which they were at Issue, and found for the Plaintiff: and now the Lessor brought Debt for the Rent reserved upon the same Lease: to which the Defendant pleaded, ut supra, scil. an Entry into parcel of the Land demised: And issue was joyned upon it; And one of the Iury was challenged, and withdrawn, because he was one of the former Iury: And the Issue now was, whe­ther the said Cibel the Lessor, expulit & amovit & adhuc extra tenet, the said Hills. And to prove the same, it was given in Evidence on the Defen­dants part, that upon the Land demised there was a Brick-kill, and and thereupon a little small cottage, and that the Lessor entred, and went to the said cottage and took some of the Bricks and untiled the said cottage:Suspension of Rent by entry upon part of the Land. But of the other side it was said, that the Lessor had re­served to himself the Bricks and Tiles aforesaid, which in truth were there ready made at the time of the Lease made, and that he did not untile the Brick-kill house, but that it fell by tempest, and so the Plain­tiff did nothing but came upon the Land to carry away his own goods: And also he had used the said Bricks and Tiles upon the reparation of the house. And as to the Extra tenet, which is parcel of the Issue, the Lessor did not continue upon the Land,Hob. 326. Rolls ubi supra. Post. 172. but went off it, and relinquish­ed the possession: But as to this last point, it seemed to the Court, that it is not material if the Plaintiff continued his possession there or not, for if he once doth any thing which amounts to an Entry, although that he depart presently, yet the possession is in him sufficient to sus­pend the Rent, and he shall be said, extra tanere the Defendant the Les­see, until he hath done an Act which doth amount to a Re-entry. And afterwards to prove a Re-entry, it was given in Evidence on the Plain­tiffs part, that the Defendant put in his Cattel in the Field where the Brick-kill was, and that the Cattel did estray into the place where the Defendant had supposed that the Plaintiff had entred. And by Anderson Iustice, the same is not any Re-entry to revive the Rent, because they were not put into the same place by the Lessee himself, but went there of their own accord. And such also was the opinion of Iustice Periam.

CL. Pasch. 30 Eliz. In the Common Pleas.

TEnant in tail covenanted with his Son to stand seised to the use of himself for life, and afterwards to the use of his Son in tail, the Remainder to the right Heirs of the Father: The Father levyed a Fine with proclamation and died. It was moved by Fenner, if any [Page 111] estate passed to the Son by the Covenant, for it is not a discontinu­ance, and so nothing passed but during his life, and all the estates which are to begin after his death are void. Anderson, The estate passeth until, &c. and he cited the case of one Pitts, where it was adjudged, that if Tenant in tail of an Advowson in gross grant the same in Fee, and an Ancestor collateral releaseth with warranty and dieth: That the same is a good Bar for ever.

CLI. Staffords Case. Pasch. 30 Eliz. In the Common Pleas.

THe case was,Attachment up­on a Prohi­bition. More. 599. that the Parson of the Church of B. did libel in the Ecclesiastical Court for Ttithe-milk of eight Kine depasturing within such a Field within his Parish: The Defendant said, that he and all those, &c. had used time out of mind, &c. to pay every year a certain sum of mony to the Parson, &c. for the Tithes of the same Field; which plea the Iudges of the Ecclesiastical Court would not allow, and therefore the party had now a Prohibition and an Injunction against the Iudges, Doctors, Proctors, &c. And afterwards the same Parson libel­led again for the same Tithes against the same Parishioner; and in both libels there was no difference, but that in the later libel it was for a less number of Kine, and now the Parishioner upon this matter prayed an Attachment upon the Prohibition, which was granted unto him by the Court, for otherwise a Prohibition should be granted to no purpose.

CLII. Samford and Wards Case. Pasch. 30 Eliz. In the Common Pleas.

SAmford brought a Ravishment of Ward against Ward, Ravishment of Ward. and counted hat one A. Ancestor of the Infant, whose Heir he is, was seised of cer­tain Lands in Fee, and held the same of the Bishop of Winchester in Socage, and died, his Heir within the age of 14 years; and that the custody of the Infant did belong unto him as his prochein Amy; by force of which he seised him and was possessed, &c. The Defendant saith, that the Land was holden of him by Knights service, absque hoc, that it is holden of the Bishop of Winchester as the Plaintiff hath counted. And upon the Issue was joyned. And it was moved by Serjant Puckering on the Plaintiffs part, that the truth of the Case was, that all the Land descended is holden in Socage, and no part in Knights service, but that part of it is holden of another in Socage: And prayed the opinion of the Court, if that matter shall trench to the Issue as the same is joyned: And the Court was of opinion, that it did not: for if all be holden in Socage, it is not material if part of it be holden of another, so as it be holden in Socage.

CLIII. Stamp and Hutchins Case. Pasch. 30 Eliz. In the Common Pleas.

THe Case was, the Obligor makes his Executors and dieth;1 Cro. 120. the Executors become bounden to the Obligee for the payment of the said Debt, and the Obligee doth deliver back the Obligation of the Testator to them; and afterwards another Creditor of the Testator sues the Executors, who pleaded, that they have fully administred, upon which they are at issue, and the said especial [Page 112] matter was found by verdict. And by Shuttleworth and Walmesley, The Iury have found for the Plaintiff, and that the Defendants have not fully administred: And yet they agreed the case of 20 H. 7. 2. The Ex­ecutors paying to the Creditors of the Testator a Debt with their own goods, they may retain so much of the goods of the Testator; but that case is not like to this, for here the Executors have not made any pay­ment or satisfaction of the Debt, nor disbursed any mony, &c. nor other things, but only have made an Obligation, to pay a sum of mony at a day to come, before which day it may happen that the Obligation be cancelled or released; but it may more fitly be compared to the case of 27 H. 8. 6. where an Executor had compounded with a Creditor of the Testator for the payment of 20 l. for a debt of 40 l. and had an Acquit­ance testifying the payment of the 40 l. where it was holden, that the other 20 l. is Assets. And by Rhodes, this making of an Obligation by Executors,Administration. Assets. (although the Obligation, in which the Testator was boun­den, be delivered to the Executors and cancelled) is not any admini­stration nor payment of the said debt due: So if the Executors pledge the goods for the payment of such a debt, yet they shall be accounted As­sets until payment be made, which Periam denied. And Periam and all the other Iustices held clearly,Retainer by ad­ministrations. that if in such case the Executors make a sufficient Obligation to the Creditor of the Testator, and sufficiently discharge the Testator without fraud or covin, that they may retain the goods of the Testator for so much: and the goods retained shall not be said Assets: And this case is all one with the case of 20 H. 7. for here they have discharged the Testator, and the Executors do remain charged with the same to the Creditor; and it is so fully administred, as if the Executors had expresly paid the debt. And it is not like to the case of 27 H. 8. cited before, for there, although they have discharged the Testa­tor, yet they have not charged themselves, otherwise it is in the prin­cipal case; and although they have appointed ulteriorem diem, for the pay­ment of the said debt, yet the same is not material: But the Lord An­derson conceived, that if the Creditor doth deliver unto the Executors the Obligation as an Accquittance or discharge, and in consideration thereof they promise to pay the debt, the same is not any administrati­on as to the said debt. And by some of the Serjants, If the plea stand good to prove fully administred, then Executors in such case may make an Obligation to pay the debt 40 years after, and so defraud the other Creditors, which is not reasonable: If a Feoffment in Fee made upon condition to pay certain mony at such a day, and at the day the Feoffees make an Obligation to the Feoffor for the payment of it, the same is no performance of the condition. And by Periam, If the Executor be taken in Execution for the debt of the Testator, he may retain so much of the goods of the Testator amounting to the sum for which he is in Execution, and it shall be accounted Assets in his hands. Anderson, If he to whom the Testator was endebted in 20 l. be endebted to the Execu­tors in so much, and the Executor in satisfaction of the debt of the Tes­tator releaseth his debt, the property shall be altered presently of the whole goods in the hands of the Executors, so where the Debtor makes the Creditor his Executor. And Iudgment was given for the Executors.

CLIV. Bears Case. Pasch. 30 Eliz. In the Common Pleas.

Formedon. A Formedon in the Discender was brought by Samuel Bear, James Bear, and John Bear of Lands in Gavel-kind; and the Warranty of their An­cestor was pleaded against them in Bar, upon which they were at Issue. [Page 113] If Assets by discent. And it was found by special verdict, that Thomas, Father of the Demandants, was seised in Fee of the Lands supposed to be descended to the Demandants, being of the nature of Gavel-kind, and devised the same to the Demandants, being his Heirs, by the cus­tom, and to their Heirs equally to be divided amongst them:Devise of Lands in Gavel-kind Owen. 65. Dy. 350. 1 Cro. 431. More 594. 558. Sty. 434. 3 Cro. 330. 443. 695. 696. And if the Demandants shall be accounted to be in of the Lands by descent, or devise, was the question; for if by devise, then they shall not be As­sets. Anderson, Let us consider the devise by it self without the words (equally to be divided amongst them.) And I conceive, that they shall be in by the devise, for they are now Ioynt-tenants, and the survivor shall have the whole, whereas if the Lands shall be holden in Law to have descended, they should be Parceners, and so as it were Tenants in common. And although the words subsequent, equally amongst them to be divided, makes them Tenants in common, yet that doth not a­mend the matter; and so also was the opinion of Windham and Rhodes Iustices.

CLV. Nash and Edwards Case. Pasch. 30 Eliz. In the Kings Bench.

IN an Ejectione firmae by Nash against Edwards, 1 Cro. 100. it was found by special verdict, that one Dover Ancestor of the Plaintiff, whose Heir he is, being seised of certain Lands holden in Socage, devised the same by word to his three Sisters; And a stranger being present recited to the Devisor the said words of his Will; and he did affirm them:3 Len. 79. And af­terwards the said stranger put the said words in writing for his own remembrance, but did not read them to the Devisor, who afterwards died. And it was moved, If this devise being reduced in writing, modo & forma, be good or not. Spurling conceived that not, for the Statute intends a Will in writing,Devises. but not such writing as is here without privity or direction of the Devisor, and it is not like to the case of Brown and Sackvil, 6 E. 6. Dyer 72. For the Notes were written by the command­ment of the Devisor, but here it doth not appear that the meaning of the Devisor was, that the devise should be put in writing: And devises in Law are favoured, as the case in the Chancery was, that Sir Rich­ard Pexhal devised certain Lands to his Wife, and the Scrivener in­serted of his own head a condition, scil. (that she should be chast) which was disallowed by the Devisor himself, for which after his death, the condition, although it was put in writing, was void. And by the whole Court the devise is void. And by Wray, 2 Len. 35. if he appoint A. to write his Will, and it is written by B. it is void; but if after he had written the Will if he had read it to the Devisor, and he had confirmed it, it had been a good Will, which Gawdy granted: And afterwards Iudgment was given, that the Plaintiff should recover.

Stone and Withypolls Case. Trin. 30 Eliz. Rot. 771. In the Kings Bench.

STone brought an Action upon the Case against Dorothy Withypol the Executrix of W. Withypol her Husband,1 Cro. 126. Owen. 94. 9 Co. 94. & declared that where hersaid Husband for certain yards of Velvet of the value of fourteen pounds, & pro diversis alijs mercimonijs, was endebted to the Plaintiff in the sum of ninety two pounds, and made the Defendant his Executrix & died, that after his death he came to the Defendant, and demanded of her the said debt, who gave to him such answer, Forbear me until Micha­elmas, and then I will pay it you, or put you in sufficient security for the [Page 114] true payment thereof: And declared further, that at Michaelmas afore­said, the Defendant did not pay, nor hath found any security, and shewed a request, to which the Defendant said that the said Testator at the time of the said Contracts for the Velvets and other Wares, was within age:Assumpsit. And upon that Bar the Plaintiff did demur in Law. Egerton Solicitor, for the Plaintiff. As I conceive these Contracts made by the Plaintiff are not meerly void, so that if an Action of Debt, or upon the Case, had been brought against the Testator himself, he could not have pleaded upon the matter Nihil debet, or Non Assumpsit, or Non est factum, but he ought to avoid the matter by special pleading, and therefore here it is a good consideration; and I conceive that if the Testator at his full age had assumed to pay the debt, that that promise would have bound him, 9 Eliz. it was the Case of the Lord Grey, his Father was endebted to diverse Merchants upon simple Contracts, and died seised of diverse Lands which descended to his Son and Heir in Fee, the Creditors demanded their debts of the Heir, who answered unto them, if my Father were endebted unto you, I will pay it, and upon that promise an Action was adjudged maintainable, although the Heir by the Law was not chargeable; and also here the Defendant is to have ease, and shall avoid trouble of Suits, for perhaps if she had not made such promise, the Plaintiff would have sued her presently, which should be a great trouble unto her, and therefore it is a good considera­tion. Cooke contrary, No consideration can be good, if not, that it touch either the charge of the Plaintiff, or the benefit of the Defen­dant, and none of them is in our case, for the Plaintiff is not at any charge, for which the Defendant can have any benefit, for it is but the forbearance of the payment of the debt, which she was not compellable to pay, and as to the suit of the Chancery, the same cannot make any good consideration, for there is not any matter in the Case which gives cause of suit in Chancery, for they will not order a matter there which is directly against a Rule and Maxim of the common Law. As if a Feme Covert be bound, &c. and the Obligee bring her into the Chancery, and if a man threaten me, that if I will not pay to him ten pounds, he will sue me in Chancery, upon which I promise to pay it him, no Action will lye: And an Infant is not chargeable upon any con­tract, but for his meat, drink, and necessary Apparel, 19 Z. 4. 2. And in Debt upon such necessary Contract, the Plaintiff ought to declare spe­cially, so as the whole certainty may appear upon which the Court may judge, if the expense were necessary and convenient or not, and upon the reasonableness of the price, for otherwise, if the necessity of the thing, and reasonableness of the price doth not appear, the Chancellor himself would not give any remedy, or recompence to the party. Wray Justice conceived, that the Action would not lye, for the contract was void, and the Infant in an Action against him upon it may plead Nihil debet: And if an Infant sell goods for money and doth not deliver them, but the Vendee takes them, he is a Trespassor; but if the Infant had been bounden in an Obligation with a surety, and afterwards at his full age he in consideration thereof promiseth to keep his surety harmless, upon that promise an Action lyeth, for the Infant cannot plead non est factum, which see Mich. 28, & 29 Eliz. in the Case of one Edmunds: And afterwards it was adjudged against the Plaintiff.

CLVII. Charnock and Worsleys Case. Trin. 30 Eliz. Rot 833. In the Kings Bench.

Owen. 21. 1 Cr. 129. CHarnock and his Wife brought a Writ of Error against Worsley; the Case was that the Husband and Wife, the Wife being within age levyed a Fine, and the Wife upon inspection was adjudged within [Page 115] age, & it was moved, if the Fine should be utterly reversed, or as to the Wife only, & should stand against the Husband; & by Godfrey the Book of 50 E. 3. 6. was vouched where it is said by Candish, that where such a Fine is reversed, the Plaintiff shall not have execution till after the death of the Husband; and by Coke and Atkinson, a Fine acknowledged by the Husband and Wife, is not like to a Feoffment made by them, for in case of Feoffment something passeth from the Husband, but in case of a Fine all passeth out of the Wife, and the Conusee is in by her only: And Atkinson shewed a Precedent in 2 H. 4. where the Fine was re­versed for the whole, and also another Precedent, P. b. H. 8. Rot. 26. A Fine levyed betwixt Richard Elie Plaintiff, and N. Ford. and Jane his Wife De­forceants, the Wife being within age, and Iudgment was given quod finis praedict. adnulletur, & pro nullo penitus habeatur, and that the Husband and Wife should be restored, and thereupon a Writ issued to the Custos Brevium, to bring into Court the Foot of the Fine, and it was presently cancelled in Court. Wray, this is a strong Precedent, and we will not varse from it, if other Precedents are not contrary. Gawdy (who was the same day made Iustice) the Fine cannot be reversed as to one, and stand as to the other, and resembled it to the Case of Littleton 150. where Land is given to Husband and Wife in tail before coverture, and the Husband aliens, and takes back an estate to him and his Wife for their lives, they both are remitted, for the Wife cannot be remit­ted if the Husband be not remitted: And a Precedent was cited to the contrary, 7 Eliz. where the Case was that the Husband and Wife levyed a Fine, the Husband died, the Wife being within age the Wife took another Husband, and they brought a Writ of Error, and the Wife by inspection adjudged within age,Fine reversed as to one, to stand good a­gainst ano­ther. and the Fine was reversed as to the Wife and her Heirs. And it was argued by Golding, that here the Writ of Error ought to abate, for the Writ is too general, whereas it ought to be special, Ex querela A.B. nobis humillime supplicantis accepimus, &c. See the Book of Entries 278. Also the purclose of the Writ is, ad damnum impsorum, the Husband and the Wife, whereas the Wife only hath loss by it; and as to the Fine it self, he conceived that it should be reversed but as to the Wife; as if a man of full age, and a man within age, levy a Fine, in a Writ of Error brought, the Fine shall be reversed, as to the Infant only, and shall stand against the other; and he cited the Case of the Lord Mountjoy, 14. Eliz. Where a man seised in the right of his Wife ac­knowledged a Statute, and afterwards he and his Wife levyed a Fine, and he said that during the life of the Husband, the Conusee of the Fine should hold the Land charged with the Statute: Also in the Pre­cedent of 2 H. 4. the Iudgment is, that propter hunc & alios errores, the Fine should be reversed, and I conceive that another Error was in the said Writ, for which the Fine might be reversed in all viz. the Fine was levyed of two parts of the Manor of D. without saying in tres par­tes dividend. And see that where two parts are demanded in a Writ,3 Co. 58, 59. Modern Rep. 182. the Writ shall say so, Brief 244 Coke contrary, and as to the last matter I confess the Law is so in a Writ, but not in a Fine, for the same is but a Conveyance, for it I be seised of a Manor, and I grant to you two parts of the said Manor, it is clear, it shall be intended in three parts to be divided. And as to the principal matter, I conceive, when the Fine is levyed by the Husband and Wife, it shall be intended that the Land whereof, &c. is the Inheritance of the Wife, if the contrary be not shewed, and therefore if the party will have an especial Rever­sal, he ought to shew the special matter, as in Englishes Case: A Fine was levyed by Tenant for life, and he in the reversion being within age, bringeth a Writ of Error, now the Fine shall be reversed as to him in the Reversion, but not as to the Tenant for life, but here it shall be intended the Inheritance of the Wife, and that the Husband hath nothing but in the right of his Wife, and therefore she shall be resto­red [Page 116] to the whole, for nothing passeth from the Husband, but he is named with his Wife only for conformity, 11 H. 7. 19. A. takes to Wife an Inheretrir, who is attainted of Felony, the King shall not have the Land presently, by which it appeareth that all is in the Wife, and she shall be restored to the whole, and the Iudgment shall be according to the Presidents cited before: And as to the President cited 7 Eliz. the same is not to the purpose, for the second Husband was a stranger to the Fine, for it would be absurd to reverse the Fine as against him. Egerton Solicitor General; Presidents are not so holy, quod violari non debeant, as to be rules to other Iudges, in perpetuum; and I conceive that the Fine shall be reversed as to the Wife only, for the Fine is but a Conveyance, and the Husband may lawfully convey the Land of his Wife for his life; and if the Husband alone had levyed the Fine, the same had bounden the Wife during his life: If a woman Lessee for life taketh to Husband him in the Reversion, and they joyn in a Fine, the Fine shall stand as to the Inheritance of the Husband, but shall be reversed as to the Interest of the Wife. Coke, it shall be intended here, all the Interest and estate in the Land to be in the Wife, as 20 H. 7. 1. Where the Husband and Wife are vouched, it shall be in­tended by reason of the Warranty of the Wife only, and so the Counter-plea shall be of the seisin of the Wife and her Ancestors. Wray, when the Husband and Wife joyn in the Fine, it shall be presumed the Inheritance of the Wife, and if it be otherwise, it ought to be specially shewed; and as to that which hath been said, that if the Hus­band alone had levyed a Fine, it should have bounden the Wife dur­ing the life of the Husband, the same is true, but such Fine is but a discontinuance, but the right continueth in the Wife; but when the Husband and Wife joyn in the Fine, all passeth out of her, and if the Fine in such case for the Inheritance shall be reversed in all, to whom belongs the Free-hold, & to whom shall he be attendant? Gawdy, 12 H. 7. 1. In a Praecipe quod reddat against three, they vouch severally, the Voucher was not received, and yet they might have several Causes of Voucher, but the Law presumes they are Ioynt-tenants, and have a joynt cause of Voucher, if the contrary be not shewed: And afterwards Iudgment was given, quod finis predict. reversetur; and Wray said he had conferred with many of the other Iustices, who were of the same opinion. Gawdy, the Fine shall be reversed in all, for this is an Error in Law of the Court, F. B. 21. D. For by this Fine the Husband giveth nothing divided from the estate of the Wife, but all passeth from the Wife, and therefore all shall be reversed, and if the Fine should be reversed as to the Wife only, then the Fine levyed now by the Husband alone is a discontinuance, by which the Wife by the com­mon Law shall be put to her Cui in vita, and that is not reason. Also we cannot by this Reversal, make the Conusee to have a particular estate during the life of the Wife: And therefore the Fine is to be reversed for the whole, and as void for the whole to the Conusee.

CLVIII. Cage and Paxlins Case. Trin. 30 Eliz. In the Kings Bench.

1 Cro. 125. 3 Len. 16. DAniel Cage brought an Action of Trespass against Thomas Paxlin for Trespass done in a Close of Wood, called the Frith-Close, and in the Park, and for taking of certain Loads of Wood: the Defendant pleaded, that the Earl of Oxford was seised of the Mannor of W. of which the place where, &c. is parcel, and leased the same to J. S. for years, excepting all Woods, great Trees, Timber-trees, and Vnder­woods, [Page 117] &c. And covenanted with the Lessee and his Assigns, that he might take Hedg-boot, and Fire-boot super dicta premissa, and shewed further, that the said I. S. assigned his Interest unto the Defendant, and that he came to the said Close called the Frifth-Close, Lease of Lands except­ing the wood and cut the Wood there for Fire-boot, as it was lawful for him to do, &c. And note, that after the Lease aforesaid, the said Earl had assured the In­heritance thereof to Cage the Plaintiff. And it was argued by Godfrey, that the Lessee cannot take Fire-boot in the said Close, for the wood, &c. is excepted, and was never demised, and by the exception of the wood, the soil thereof is excepted: See 46 E. 3. 22. A. leased for life certain Lands reserving the great wood, by that the soil also is re­served, vi. 33 H. 8. Br. Reservation, 39, 28 H. 8. 13.3 Len. 16. And by the words of the Covenant, the intent of the Lessor appeareth, that the Lessee shall have his Fire-boot out of the residue of the Lands demised, for praemissa here is equivalent with praedimissa: And he cited the Case mov­ed by Mountaine cheif Iustice, 4 E. 6. in Plowden, in the Case betwixt Dive and Manningham, 66. A. leaseth unto B. a Manor for years, except­ing a Close, parcel of it, rendring a Rent, and the Lessee is bounden to perform all Grants, Covenants, and Agreements, contenta & ex­pressa aut recitata in the Indenture; if the Lessee disturb the Lessor, upon his occupation of the Close excepted, he hath forfeited his Ob­ligation, &c. But our Case is not like to that:Post. 122. And if I let the Man­or of D. for years, except Green-meadow, and afterwards I cove­nant that the Lessee shall enjoy the Premisses, the same doth not extend to Green-meadow. Snagg Serjeant to the contrary, and by him prae­missa, are not restrained to praedimissa, but to all the Premisses put in the former part of the Indenture of Demise, therefore the Lesse shall have Fire-boot in the one, and the other;2 Roll. 455. 2 Cro. 524. Post. 122. and he put a difference betwixt all Woods excepted, and all woods growing excepted, for in the one case the soil passeth, in the other not; And as to the Case cited be­fore in Plowden. 66. that is true, for exception is an Agreement: And he said that by that exception the soil it self is excepted, and these woods which are named by name of woods; contrary where a Close containeth part in woods, and part in Pasture; And by the exception of Timber-trees, and Vnder woods, all the other woods are excepted but not the soil: As if a man grant all his Lands in D. Land, Mea­dow, Pasture, and woods thereby passeth; by exception of this Close of wood, the soil also is excepted, and he conceived, that although all the woods be excepted, yet by the Covenant an Interest passeth to the Lessee,Select Case 155 Hob. 173. Dy. 19, 198, 314. 21 H. 7, 31. More 23. 1 Roll. 939. so as he may take Fire-boot without being put to his Action of Covenant: As 21 H. 7. 30. A. leaseth unto B. for life, and Coven­ants in the Indenture of lease, that he shall be dispunished of Wast, al­though the same be penned by way of Covenant, yet it is a good mat­ter of Bar, being all by one Deed: And afterwards Iudgment was given for the Plaintiff, as to that Close of wood called Frith-Close; but as to the Park, for the Defendant, for that Frifth-Close was all ex­cepted, scil. the wood and the soil: And these words, supra praemissa, shall be intended such things which were demised, and no other, and by this Covenant,Dy. 199. Hob. 173. 2 Cro. 172. Bridg. 117. the Lessee hath power to take the wood upon the other Lands, although that the wood be excepted, for the soile was demised, and he shall not be punished in Trespass, and put to his remedy, by Action of Covenant against the Lessor: And by Wray, there is not any colour against the Plaintiff for the Frith-Close, if not that the Defen­dant had averred, that there is not any wood upon the other Lands not excepted but demised; And this word, Praemissa, doth not extend by construction to this mentioned before, being excepted, but only to the things demised.

CLIX. Rivett and Rivetts Case. Trin. 30 Eliz. In the Kings Bench.

EDmund Rivett brought an Action upon the Case against Geoge Rivett, and declared, that where it was pretended by the Defendant, that one R. made his Will, and by the same devised certain Legacies to the Defendant, and the Plaintiff upon that had sued in the Prerogative Court of Canterbury for to disprove the said Will: And if he prosecutus fuisset, he might have disproved the said Will, and so defeated the De­fendant of his pretended Legacies:Assumpsit. Owen 133, 134. The Defendant in consideration that the Plaintiff, ultra non procederet, did promise to give to the Plain­tiff one hundred pounds; and averred, that he had surceased his said suit; And further declared, that licet the Defendant, ad hoc requisitusfu­erit tali die & anno, &c. It was moved in arrest of Iudgment, that here is not any consideration, for the Defendant hath not any means to compel the Plaintiff for to surcease his suit, for there is not any cross promise set forth in the Declaration; And although that he doth surcease his suit, yet he may begin the same again, and therefore the Plaintiff ought to have shewed in his Declaration a Release or other discharge of it, as the case was 3 Eliz. reported by Bendloe. A. was bound unto B. in twenty pounds, and afterwards A. promised B. that in consideration the said A. should not be damnified by reason of the said Bond, to give the said B. ten pounds, and upon that promise B. brought an Action up­on the Case, and shewed, that the Defendant was not damnified by reason of the said Bond. But it was adjudged, that the Action was not maintainable upon that matter, because that the Plaintiff did not shew in his Declaration, that he had released or otherwise discharged the Defendant of the said Bond, and so no consideration in the case.

Request.Another Exception was, because the request is not layed certainly, but generally, licet requisitus, and doth not say by whom he was requi­red, or what thing to do: And afterwards a Precedent was shewed, Trinit. 28 Eliz. rot. 523. betwixt Smith and Smith. An Assumpsit, in con­sideration that the Plaintiff should not implead the Defendant upon Bond; And the Plaintiff had Iudgment to recover. And as to the request it ws said by Kempe, that there are many Precedents, that a Request generally layed is sufficient: And afterwards in the principal Case Iudgment was given for the Plaintiff.

CXL. Wheeler and Twogoods Case. Trin. 30 Eliz. In the Kings Bench.

WHeeler brought an Ejectione firmae against Twogood, and it was found by special verdict, that the Earl of Oxford was seised of the Man­or of Hornely, in which were divers Copy-holds: And that the said Earl leased the said Manor to one Heywood for one and twenty years, to be­gin two years after. Except all casualties and profits of Courts, which severally did not pass the value of six shillings eight pence. And af­terwards the Earl bargained and sold the Reversion to Anthony Cage: And afterwards a composition was made betwixt Anthony Cage and the Lessee, by which the Lessee did grant and covenant to and with the said A. Cage, that he would permit the said Anthony Cage peaceably to hold the Courts and to take the profits to his own use, Proviso, that the said Lessee should have the Rents of the Copy-holders & Free-holders: And afterwards the Lessee granted over his Interest in the [Page 119] said Term. It was moved by Towse, that by this Exception the Court Baron is not excepted nor severed from the Manor, nor destroyed,Covenant amounts to a grant. for it is incident to the Manor, and this Covenant betwixt the Lessee and Anthony Cage amounts to a grant of the Court to Anthony Cage. See 44 E. 3. Fitz. Mannors de faits 144 & 29 E. 3. Burr. 280. and see 37 H. 8. & 1 E. 6. Br. Leases 60. That where I.S. Covenants, & concessit to I. N. that he shall have twenty acres of Land in B. for one and twenty years, it is a good Lease, for this word concessit is as strong as dimisit. And it was moved, that here the Earl leased for years to begin two years after, and the Lessee being in possession, doth continue it after the two years, and afterwards before any entry the Lessee assignes over his Interest, that the same is not a good grant, but only a Right: But by the whole Court the grant was holden good, notwithstanding the said Excep­tion: And it was holden also, that the Covenant (ut supra) was void; for although that Anthony Cage hath authority to hold the Courts, yet it ought to be in the name of the Lessee.

CLXI. Stretton and Taylors Case. Trin. 30 Eliz. In the Kings Bench.

STretton did inform against Taylor upon the Statute of Vsury:Information upon the Sta­tute of Usury. Retraxit by the Queens Attor­ney shall not bind the Infor­mer. 1 Cro. 138. & 583. Qui sequitur tam pro Domina Regina, quam pro seipso: And the Queens At­torney entred upon it, &c. non vult prosequi, and that was pleaded in Bar against the Informer for the whole: And by Wray, the same is not any Barr to the Informer. But Popham the Attorney general said, that by the favour of the Court he would maintain the authority of his place, which his Predecessors had enjoyed, for he said, it cannot be found by any Record in this Court, Common Pleas, or the Exchequer, that the In­former had proceeded where the Attorney General had made such an Entry, for we have not used to do it without great consideration; for if the Informer hath ceased to prosecute the Suit two or three Terms, then we used to enter a Non vult prosequi. For it is not reason that the Subject should be molested or attendant so long without just cause, and it is not against Law, that in personal Suits the act of one should prejudice the other: And the Queen is the principal party in this Suit, for the Replication shall be made in the name of the Queen only, and not of the Informer. And afterwards by Award of the Court it was ruled, that that Entry by the Attorney is not any Barr, quoad the In­former, so if the Queen be Nonsuit, so the Nonsuit of the Informer is no Barr against the Queen: And Wray said, that such was the opinions of Anderson and Gawdy Iustices, &c.

CLXII. The Queen against Lewis, Green, and others. Trin. 30 Eliz. In the Kings Bench. Intrat. Hill. 30 Eliz. Rot. 10.

AN Information for the Queen against Lewis, Green, and others:Grants of the King. 2 Roll. 51. 1 Co. 46. The Case was, King E. 6. was seised of the Manor of Stepneth, and twenty acres of Lands in Stepneth, called Stepneth Marsh, and of another Marsh also called Stepneth Marsh, and granted unto the Lord Wentworth and his Heirs the Manor of Stepneth, in the County of Midd. Nec non mariscam in Stepneth, appel. Stepneth Marsh in com. praedict. nec non omnia terr. & ten. eidem Manerio five premissis pertinent. And if twenty Acres, called Stepneth Marsh, not parcel of the said Manor pass, or not, was the Question: Cook, [Page 120] that they shall pass: Here this grant doth consist of three parts; 1. The grant of the Manor; 2. Nec non mariscum in Stepneth; 3. Nec non omnia terras & tenementa dicto Manerio sive praemissis pertinen. And by the second clause these twenty acres shall pass, be the same parcel or not; and the latter words cannot refer to that, for it is certainly expressed before. And the case lately agreed in the Court of Wards betwixt Bronker and Robotham was cited, which was, That the King being seised of the Manor of Sandridge and Newnam, parcel of the possessions of the Mona­stery of Saint Albans, and part of the Manor of Newnam extended into the Parish of Sandridge, and the King granted the Manor of Sandridge, nec non omnia terras & tenementa sua in Sandridge, dicto nuper Monasterio perti­nen. nec non omnia terras & tenementa sua dicto Manerio de Sandridge pertinen. By which grant, although that the latter clause doth restrain it to the Manor of Sandridge, yet the general words of the second clause shall ex­tend to make pass all the whole Manor of Newnam, which extended into the Parish of Sandridge, & a Decree was in the said Court accordingly.