THE SECOND PART OF Reports and Cases OF LAW, Argued and Adjudged in the time of Queen ELIZABETH, from the Eighteenth to the Three and thirtieth Year of her Reign.
I. Kirkman and Reignold's Case. Mich. 30 Eliz. In the Common Pleas. Rot. 30.

THE Case was, That a Lease was made unto two,Leases. 1 Cro. 182. Ha­bendum to them, and to two others for four lives, and the longer liver of them; It was resolved by the whole Court, That the two named in the Habendum did not take any thing; and that if the first two in the Premis­ses of the Deed die, that there shall be no occupancy; For the lives of the two in the Habendum was intended an Estate to them, and not a limitation of the Estate of the first two: And so it was resolved, 28 Eliz. in the King's Bench, Rot. 509.Hubbart and Windsmore's Case. in Hubbart and Windsmore's Case.

II. Thatcher and Damport's Case. Mich. 32 and 33 Eliz. In the King's Bench. Rot. 19.

THatcher recovered against Damport as Administrator of one Zouch, 1 Cro. 145. 215. ib. Error. The Defendant put in Bail, and afterwards Iudgment was gi­ven against the Defendant in this manner: Ideo videtur Justiciariis, quod querens recuperet debitum suum versus, &c. and thereupon a Scire facias was sued against the Bail,Judgement against the Bail. and a good and lawfull Iudgment given a­gainst them; And they brought a Writ of Error to reverse the Iudg­ment given against them, and assigned Error, because Iudgment was entred against them before a good and lawfull Iudgment was given a­gainst the Defendant himself; For Videtur Justiciariis quod querens recu­peret, &c. is not any Iudgment; and the Court held, that the Iudg­ment [Page 2] given against the Bail, ought to be reversed, but that the other Iudgment should stand such as it is, neither affirmed nor disaffirmed, but the Bail should not cause the same Iudgment for their discharge to be entred, And afterwards came Thatcher and surmised the nullity of the said Iudgment, and prayed that Iudgment might be entred for him in forma juris, & habuit: And now upon this new Iudgment Dam­port brought a Writ of Error, and assigned for Error the entry of that new Iudgment, for before a Iudgment was entred, tiel queb. and That­cher proceeded upon it, and had a Scire facias against the Bail, and Iudgment thereupon given against the Bail: Also the Record was removed by Writ of Error, and this second Iudgment is merely erro­nious, for then there should be two Iudgments; and they should give Iudgment upon a Record, which was not before them.

Gawdy Iustice, The Writ of Error is to remove the Record, Si Judi­cium inde redditum sit, by which if Iudgment be not given, the Record doth remain unremoved, and then they may well enough give Iudg­ment; For the former pretended Iudgment was no Iudgment at all, and the Record is not removed, As 4 Eliz. Dyer 206. a Certiorari to re­move a Record, capt. in Curia nostra, whereas it was in Curia of the predecessor, the Record is not removed. The former Writ of Error was to remove the Record of the Scire facias against the Bail which might be removed, although the other Record did remain, for they are two distinct Iudgments. And such was the opinion of the other Iustices; And afterwards upon advice of the whole Court, the Iudg­ment against the Defendant himself was affirmed, but that which was given against the Bail was reversed, because given before Iudg­ment given against the Defendant himself.

III. Werdman and Yate's Case. Trinit. 32 Eliz. In the King's Bench.

Partition. 1 Cro. 155. 281. WErdman brought a Writ of Partition against Yates and others, who all appeared and confessed the Action, and afterwards brought Error, which was entred, Pasch. 27 Eliz. Rot. 43. and they as­signed Errors, and the opinion of the Court was against them, and they seeing it, did discontinue their Writ of Error, and now they sued a new Writ of Error out of the Chancery, Error. directed to the Lord Ander­son, being dated 19 Nov. 31 Eliz. containing, That whereas a Writ had been directed to him to remove such a Record, That all the Record is not yet removed; wherefore this was to remove the residue of the said Record; Vpon which Writ was sent hither a small parcell of the Re­cord, upon which the Plaintiffs sued a new Writ of Error out of the Chancery, Coram vobis residet, and that was Hil. 31 Eliz. and it was en­tred upon a new Roll of the same Term, and not upon the ancient Roll, and thereupon new Errors were assign'd in the judicial proces out of the body of the Record.

1. That the Plea was discontinued for Pone was awarded against three of the Defendants, and idem dies not given to the other two, nor any thing spoken of them.

2. Because there were not fifteen days betwixt the date of the Pone, and the Retorn of it, (scil.) the first day of the Retorn, i. the first day of Essoins, as ought to be by Law.

3. Iudgment was given that the Defendants should be amerced, where they appear upon the first Proces, and thereupon the Plaintiff sued a new Writ of Diminution, one to the Lord Anderson, and the o­ther to the Custos Brevium, And now came and pleaded all the matter aforesaid, viz. the former Writ of Error, the proceeding in it, and the [Page 3] discontinuance of it, and demanded Iudgment if the Plaintiff should have a new Writ of Diminution, upon which the Plaintiff did demurr: Coke, this second Writ of Error is not maintainable: For the first Writ sent to the Lord Anderson, could not be sued out of the Chancery, for it is not a Writ of Error, but a Writ of Diminution: For in the Re­gister there are but two Writs of Error, the first to remove Record, the second Quod coram vobis residet, 2 H. 7. 19. and in the Writ there is not any mention of Error, and therefore it cannot be a Writ of Er­ror, and if there be not any such Writ in the Register, then it is a good argument to say there is no Writ at all, as the Lord Dyer argued in the Lady Hale's Case, 5 Eliz. 262. in Plowden in the Case of the Writ of Escheat: Also it is against all the precedents, that a Writ of Error, Quod coram vobis residet, should be otherwise entred than upon the first Re­cord, and not upon a new Record, and the Writ of Diminution is not an Original Writ, and ought always issue out of the Court where the Writ of Error is depending: And also the party cannot now alledge Diminution, i. after a Scire facias ad audiendum Errores, which see 22 E. 4.Diminution.45. by Hussey: For by the Scire facias ad audiendum Errores, he affirms the Record to be full: So 7 E. 4. 25. After the Defendant in the Writ of Error hath pleaded in nullo est erratum he shall not alledge Diminu­tion, for the parties are agreed upon the Record, 28 H. 6. 10. after a Scire facias, the Plaintiff shall never assign Errors in fact, &c. Tanfield contrary, he agreed, that a Writ of Diminution cannot be sued out of the Chancery, but that will not hurt us, for it is idle and utterly void: And when the Record is removed, it is not material how it comes in, so as it be here, for they are both the King's Court, as it is in the common Case of Indictments: and then the Writ of Error is to exa­mine the Record, Quod coram vobis residet, And although the same be in divers Rolls, the same is no matter of Exception;Entry of Re­cords. but if the Roll be entred in a wrong Office it is not good, but if all be in one Office, the misfiling of the Roll will be no hurt: So here, it is not so for­mal as it ought; yet it is not any prejudice to us. But the great matter is, if the Plaintiff may assign new Errors and have a new Writ of Diminution, two of the Errors assigned in the Mesne Proces, but the third is in the Record it self; i. the Iudgment. And there is no doubt but that a man may have divers Writs of Error, but he shall have but one Supersedeas, and so divers Errors, but one delay: Also it is not a Writ of Diminution which we have sued, for I do not say that it is a thing below, which is not here, but I say that is not a thing below which ought to be, viz. there is not any discontinuance; but the Court awarded that Writ for their satisfaction, for the non esse of the thing shall come on the other side, and 9 E. 4. the Court awar­ded a Certiorare to enform themselves. And he said that after a Scire facias, the Plaintiff may assign new Errors, Trin. 20. H. 7. Rot. 84. be­twixt Edge-Court and London, a Writ of Error was brought against two, and after Errors assigned, one of the Defendants died, before a new Writ of Error could be assigned: But here the first Record is dis­continued and determined, for which there is not now any Record which may be objected against us, nor any thing in it: as 20 H. 7. A man avows for a Rent due at such a day, and is nonsuit; Now he may a­vow for the same Rent, and suppose the same to be due at another day,Estoppell. for he shall not be estopped by the Record upon which he was non­suit: and so here upon the whole matter the Writ out of the Chancery is not material, and the Roll is not misplaced, but is in the right Of­fice: Also this is not a Writ of Diminution, but a Writ to inform the Iustices, Wherefore upon the whole matter the Writ of Error will well lie. It was adjourned.

IV. Savacres Case. Rot. 7. Mich. 31 and 32 Eliz. In the King's-Bench. Error.

Post 185. A Writ of Error was brought by Savacre and the Bishop of Glocester upon a Iudgment given in a Quare Impedit for the Queen, and Errors assigned. 1. Attachment was awarded against the Defen­dants in the Quare Impedit, retornable Quind. Pasc. at which day Sava­cre appeared, and cast an Essoyn; and notwithstanding that, a Di­stress was awarded against them both, retornable Crastin. Trinit. and this awarding of the Distress was erroneous, for the Essoyn was, as appeareth, to save, &c. and therefore against him no Distress ought to have been awarded: And upon alledging of Diminution the Re­cord of the Essoyn was certified, but the same doth not appear upon the Plea Roll. 2. This Record is, ideo ipsi in misericordia, and so both the Defendants are amerced for their default of appearance 15 Pasch. whereas Savacre was then Essoyned, and so no cause to a­merce him.

Coke, The Original Writ was sued Mich. 26 Eliz. retorned 15 Hillarii, and then both the Defendants made default, for which an Attach­ment was awarded, retornable 15 Pasc. and then Savacre appeared, and Iudgment given, quod ipsi sint in misericordia, in which point the Er­ror is apparent: but I conceive that it is not Error, for upon the At­tachment the parties ought to put in Sureties for their appearance; and the said Sureties took upon them, that the Defendants and each of them should appear; and if they or any of them make default, they shall be amerced: And so here, this Iudgment, ideo ipsi in misericodia, doth refer to the Sureties, not to the parties, for the Defendants shall not be amerced until the end of the Suit, and but once onely in an Ac­tion: which see Book of Entries 464 where there was but one Defendant: and therefore if the amercements shall be referred to the Defendant, then it shall be ideo ipse, not ipsi, &c. And that is the Reason wherefore the Queen, nor an Infant, shall not find Pledges, for no amercement shall be upon their default, therefore it were in vain for them to find Pled­ges, &c. If the Sureties be amerced where they ought not to be amer­ced by the Law, yet the Defendant shall not have a Writ of Error there­upon, for he is not the party grieved by the amercement: and upon that Reason it is, if in a Scire facias against the Bail erroneous Iudg­ment be given, the Defendant in the Action shall not have a Writ of Er­ror. The awarding of the Distress upon the Roll against both, where one of them only made default, is not Error, especially as this case is: for although one of them was essoyned until the day aforesaid, yet at that day they make default, and so the Distress well awarded a­gainst them: and although the Writ was not well awarded, yet when they appear Crastin. Trinit. at the day of the Retorn of the Distress, all mesn defaults in the Process are saved, and so the misawarding of the Distress by appearance after is supplyed: as 39 E. 3. 7. The Law requires, that in an Action founded upon the Statute of Praemunire, &c. 27 E. 3. the Defendant gave Garnishment by two Months, yet if the Defendant, not having warning appear, now the Process is good e­nough: So 9 E. 4. 18. where upon any Process the Defendant doth appear, although the day of appearance be not lawful, yet he shall be put to answer, and see many Cases there to that purpose. And so was the Opinion of the Court in the principal Case.

As to the second Error, That this Iudgment, ideo ipsi in misericordia, shall be reserved to the Sureties onely, and not to the party, and that the Defendant shall be but once amerced in one Action; True it is, he [Page 5] shall be amerced but once for one default; but if there be many defaults, the Defendant shall be amerced severally for the several defaults for every offence; and it should be unreasonable that the Sureties should be amerced, and that the Defendant, who is the principal, should be freed: which see in the book of Entries 193. ipsique & plegii sui in mi­sericordia, &c.

V. Nevil and Cook's Case. Trinit. 32 Eliz. Rot. 76. In the King's-Bench.

IN an Action of Covenant the Plaintiff declared,Covenant. That where it was covenanted betwixt the Plaintiff and the Defendant, That each of Them upon request should be accountable to the other for all the Corn growing upon such a place, and that upon such account the one of them should deliver to the other the moiety of the Corn, or the profit of it: and whereas the Defendant had taken all the said Corn, scil. twenty loads of Wheat, forty loads of Barley, and thirty loads of Pease, growing upon the said Lands, and had been required to render account of the said Corn, which he refused to do: The Defendant traversed the request, upon which they were at issue, and it was hereupon de­murred: and it was moved, that the Traverse was not good, but the Defendant ought to say, that the Plaintiff did not require him modo & forma; but the Exception was not allowed, but the Traverse was holden good by the whole Court and Iudgment was given for the Plaintiff.

VI. Elizabeth Dormer's Case. Trinit. 32 Eliz. In the King's-Bench.

ELizabeth Dormer was indicted upon the Statute of 23 Eliz. of Recu­sancy; and Exception was taken to the Indictment,1 Len. 241. because that these words of the Statute were omitted out of the Indictment, viz. [non habens aliquam rationabilem causam] But the Exception was not allowed; for Wray, chief Iustice, said, That upon conference betwixt himself and all his companions, it was resolved by them, That those words need not be put into the Indictment, but are to come on the o­ther side. Another Exception was taken to the Indictment, That she being of the age sixteen years refused to come to any Church (contra formam Statut. 1 Eliz. & in malum exemplum, &c. & contra formam Sta­tuti in hujusmodi casu editi & provisi) and the Statute of 1 Eliz. doth not speak of sixteen years, but the same is mentioned in the Statute of 23 Eliz. Fenner was of Opinion, that the last Contra formam Statuti should be referred to the Statute of 23 Eliz. Wray contrary, and that it should be referred to the Statute of 1 Eliz. It was adjourned.

VII. Cranmer's Case. 16 Eliz. In the Common-Pleas.

THE Case was, That Thomas Cranmer, 1 Anders. 19. More Rep. 100. 1 Len. 196. 3 Len. 20. Dyer 309, 310. late Archbishop of Canter­bury, made a Feoffment in Fee to the use of himself for life, with­out impeachment of Waste, and after his decease to the use of his Ex­ecutors for twenty years, and after the twenty years to the use of his Son and Heir in tail. And afterward Thomas Cranmer was attainted of Treason, and dyed, so as he could not make Executors, but dyed [Page 6] intestate without any assignment.Office Exe­cutors, 118. (Note, the limitation was to his Executors and Assigns.) Queen Mary claimed the term limited as a­foresaid, and granted the same over, the Heir in tail entred, and Lea­sed the same for years, the Patentee entred, and the Lessee of the Heir of the Tenant in tail brought Ejectione firmae.

Manwood. All the doubt of this case is, If the said term was in Tho. Cranmer so as he might forfeit it? And he conceived, that the said term was in Tho. Cranmer, and that he had not power onely to dispose of it, but also had possession of it: 11 H. 4. 186. Scire facias 67. And Br. Annuity 17. Such a Grant is good and effectual, and if he do not grant it his Executors shall have it, and yet the term was not limited to him, but he shall have it by implication of Law. 39 E. 3. A Lease was made to one, his Heirs and Assigns during his life, and one year af­ter, the Executors shall have the said term after the death of the Lessee, yet the said term was not limited to him: 7 E. 3. A Lease made for term of live and a year after, in that case the term is conjoyned unto the Estate for life by the act of the Grantor himself; and there is a difference when the Remainder is joyned to the particular Estate by the act of the Grantor, and by any Purchase, Grant, or any act af­ter: for in the first case the Remainder shall be executed, but in the latter not. A Lease for life, the Remainder in tail, the Remainder to the right Heirs of Tenant for life; he in the Remainder in tail dyeth without issue in the life of Tenant for life, now the Fee is executed to the Freehold, &c. and the Heir shall not have a Scire facias where such conveyance is made by Fine. See 17 E. 3. 29. In a Cui in vita, A. Executor of B. came and said, that the Land in demand was Leased to the said B. for the term of his life, the Remainder for the term of eight years to his Executors, and prayed to be received, and they were received. See 19 E. 3. A Lease was made for life to A. the Re­mainder to his Executors for twelve years: the Lesse for life died, the Executors died, there it is agreed, that the Executors of the Ex­ecutors should have an Action of Covenant, if they be ousted. And see 20 E. 3. Quid juris clamat 31. A Lease is made to A. for life, and if A. dieth within twenty years, that his Executors shall have the term until the end of such term: and in a Quid juris clamat against A. he sa­ved his term by protestation, which proves, that the term was quo­dam modo in him. 49 E. 3. A Lease for life unto A. the Remainder to his Heirs and Executors for twelve years, and afterwards the Lessor confirms the Estate of the Lessee for life, to have and to hold the Land to him for life, and thirteen years over to his Executors; the Lessee deviseth the term, and the Devise holden good, which proves, that the term was in him.

Harper, Iustice, contrary: Many cases put before may be answer­ed; for in the said case the term is limited to begin immediately, and not by way of Remainder, or after the death of the Lessee, and then the Executors in the life of the Testator are not known, nor able to seek any thing by the name of Executors, and therefore that term shall take its beginning in the life of the Testator: But in the Case at Bar the term is limited to the Executors after the death of the Te­stator,Co. 1 Inst. 54. b. and the Executor takes the term as a Purchasor, and he hath it not as a Chattel of the Testator, but as his own Chattel. And in the Case of Receipt before cited, the Executor shall be received as Ex­ecutor, for the term was limited to him as Executor. And here the Statute of 27 H. 8.1 Cro. 666. is to be considered, for it extends as well to Chat­tels as to Freehold, and the Statute doth execute the possession to the use limited for years, as for life, or in Fee: and here the use is limited to the Executors, and not to the Testator, and therefore it shall not be otherwise transferred. And therefore if a man seised in the Right of his Wife discontinueth, and afterwards the Discontinuee makes a [Page 7] Feoffment in Fee unto the use of the said Husband and Wife for their lives, in that case the Wife shall not be remitted; for the Sta­tute doth transfer according to the use, and the use was limited for their lives, therefore they shall not be in of another Estate.

Dyer, chief Iustice, to the same intent: The Feoffor, i. Thomas Cran­mer, limits all the uses, and therefore he shall not have that which he hath limited; and it is in the nature of a Reservation, which shall be taken strictly and very strong against him who made the Reservation: and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors,Co. 13. Rep. and not to him who limited it, and therefore the possession shall be executed to the Executors, to whom the use was limited; and this term shall not be Assets in the hands of the Executors: And he said, That he had seen a Record, 2 H. 8. setting forth, That A. having Feoffees to his use, devised, that his Feoffees should sell his Lands, who did ac­cordingly; now the money coming by the sale shall be Assets, &c. but it is not so limited in our case, therefore it shall not be Assets. A Lease is made to A. for life, the Remainder to the right Heirs of B. B. pur­chaseth the Estate of A. the Estate in Remainder is not executed, for it is not conveyed by the Grant of the first Grantor, but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years, they entermarry, Waste is committed, the Lessor brings an Action of Waste, he shall recover as well the Estate for years as for life. A. Leaseth unto B. for life, the Remainder unto the Executors of A. for years, the Remainder over in Fee to a stran­ger, the Remainder for years is good, for the Lessor cannot limit such an Estate to himself, and the Executors shall take the Estate as Pur­chasors, and the term shall be in abeyance untill the death of A.

There was a case before the Lord Brook in the time of Queen Mary, viz. A Lease was made for life, Proviso, that if the Lessee dieth within the term of sixty years, that the Executors shall have the Lands, as in the Right and Title of the Lessee, pro termino totidem annorum, which do amount to the number of sixty years, to be accounted from the said Indenture. The Opinion of the Iustices of the Common Pleas upon the Case was, That the term was not in the Lessee for life. So this future term in the principal Case was not in Tho. Cranmer. But see that Case cited by Dyer, reported by himself 4 Ma. 150. and there the opinion of the Court was, That the same was not a Lease, but a Covenant.

And afterwards in the principal Case Iudgment was given for the Plaintiff, That the future term was not forfeited by the Attainder of Cranmer.

VIII. 7 Eliz. In the Common Pleas.

THE Case was,Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years, rendring Rent, J. D. puts in his cattle in­to his own Close, who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant,Distress for Rent. J. S. distrains them for his Rent: It was said by Manwood, Iustice, that the distress was not well taken;Doctor & Student 150. 1 Inst. 476. Brown 1 part 170. Roll Tit. Di­stress 1 part in toto. for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel, as by escape or stray, and where in the default of another: For in the first case the Lord may distrain them before they be levant and couchant; but in the latter case not: Also a Rent reserved upon a Lease for years, is a new Rent, and not like unto an ancient Rent, due upon an ancient Tenure betwixt the Lord and the Tenant: For, for a Rent [Page 8] reserved upon a Lease for years,Roll 1 part 672. acc. Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel, before they be levant and couchant upon the Lands, although they come upon the Lands by escape, estray, &c. Dyer, The Lord cannot distrain the cattel which escape into the Land of his Te­nant for want of enclosure of his Tenant before they be levant and cou­chant: and yet the seignory is favoured for the antiquity of it: But here is new Rent, not in respect of any seignory, but of reservation upon a Lease for years, and therefore no distress before the cattel be levant and couchant upon the Lands, Quod Harper & Mounson concesse­runt, and Iudgment was given accordingly.

IX. 17 Eliz. In the Common Pleas.

Writ of En­try in the Per.THE Case was, In a Writ of Entry in the Per, against A. and B. A. pleaded several tenancy: It was holden by Dyer, chief Iustice, that it is not any plea. Harper Iustice: In Assise it is no plea; for here the Land is not in demand:Several Te­nancy where no good Plea. but here it is a good plea, and the Demandant ought to maintain his Writ; Manwood, In no action foun­ded upon disseisin is this good: For although the Demandant by poli­cy will bring his Writ against the Tenant of the Land, and another who he will name in the Writ, upon trust and confidence, and that he will not agree with the Tenant of the Lord in Dilatories, for the Te­nant of the Lands shall not be received to plead Dilatories; Yet in that case several Tenancy is no plea for the Tenant, but in a Formedon, or other such like action, which is not grounded upon disseisin, if the Writ be brought in such manner as above, the Tenant by policy, that he may have the view, and other reasonable delay, may plead seve­ral Tenancy, and so enforce the Demandant to maintain his Writ, but contrary in the Case at Bar, and so it was adjudged per Curiam.

X. Creswell and Cokes Case. 19 Eliz. In the Common Pleas.

Dyer 351. CReswell brought Debt against Coke, and demanded 200 Marks up­on the Statute of 13 Eliz. of fraudulent Deeds, Gifts, &c. upon the second clause of the Statute,Debt. viz. That all parties, or privies to such fraudulent Deed, willingly putting in ure, avowing, &c. as true, simple,Custome. and given bona fide, shall forfeit, &c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands, and died seised, And that by the custome of the Manor,Heriot. the Lord was to have for a Heriot, the best beast whereof his Tenant died possessed, and farther shewed, that the said A. in his life time, and a little before his death, being possessed of 30 Horses, of the value of 200 Marks, gave the said Horses to the Defendant, with intent to defraud the Plaintiff, and other Lords of their Heriots, and that he went to the Defendant's house to seise his Heriot, and the Desendant then strained the said Horses, by reason of the Gift aforesaid, for which the Action is brought, To which the De­fendant pleaded, that the Plaintiff had seised one of the Horses nomine Herioti: and as to the rest he did demurr in Law. Mounson Iustice, was of opinion, that the Plaintiff should recover the whole 200 Marks, although he was defrauded but of one Heriot onely: as if a man be in­debted to me in 20 l. and he makes such a fraudulent Deed of his goods, of the value of 2000 l. although I be defrauded but of the 20l. yet he shall forfeit the whole value of the goods so conveyed. Manwood Iustice, was of opinion, that the Plaintiff should recover the value of one of the Horses; and the Gift by the first branch is void, as to the Plaintiff but [Page 9] for one of the Horses onely, and not for all the Horses contained in the Gift, for no more than one Horse was fraudulently given: And as by the first branch the Gift is void but for one Horse, so by the second branch the penalty extends but unto one Horse, for the fraud extends but to one Horse, and no farther. And this Action is not a popular Action, but extends onely to the party grieved. And of the same o­pinion was Dyer chief Iustice, and he confessed the Case put by Moun­son Iustice, where the Debtor of 20l. makes a fraudulent Deed of his goods of 3000l. &c. for the person of the Debtor is chargeable, and peradventure, goods of the value of 2000l. may be put in execution for 100l. but here the person is not charged for the Heriot. Barham Serjeant, the fraud goes to the whole (scil.) to all the Horses: for although the Plaintiff is to have but one Horse, yet he is to have the choice of all the Horses, which of them he will have for the best Beast, and because the choice goes to all the thirty Horses; and by this frau­dulent Gift, he is defrauded of his election, which of the Horses he would have, therefore he shall have the value of the whole thirty Horses. But Dyer and Mounson said to the Serjeant, set a price upon any of the thirty Horses, as the best Horse in your election, and demand the value of that Horse as forfeit by the Statute, and then your election is saved to you.

XI. Gregory's Case. 19 Eliz. In the common Pleas.

IN the Assise against Arthur Gregory and his wife at Warwick, Assise. 1 Len. 86. Key's steds case cont. before Dyer and Barham, Iustices of Assise, the husband made default, and the Assise was awarded by default: and the wife came and prayed to be received, and the opinion of the said Iustices was, that Receipt lay in that Case; as in other cases of Praecipe quod reddat; Receipt of the wife. and therefore the wife was received. And now Dyer in Banco, demanded of his compani­ons, the other Iustices if the Receipt was well granted: And by Man­wood and Mounson, Iustices, clearly the Receipt lies: For although that the Statute doth not give Receipt, but where the Lands in de­mand are to be lost by such default of the husband, and in an Assise the Land shall not be lost by the default of the husband, but the Assise shall by taken by default, Yet because the husband and wife lose their chal­lenges to the Iury, because the Assise is taken by default, It seemed to the Iustices, and also to the Preignothories, that Receipt did well lie in this Case.

XII. 19 Eliz. In the Common Ples.

IN an Action upon Escape, the Plaintiff is nonsuit: It was holden,No costs up­on Nonsuit in an Action upon Escape. that the Defendant should not have costs, by the Statute of 23 H. 8. Note the words of the Statute, i. (Upon any Action upon the Statute) for any offence or personal wrong, supposed to be done immediately to the Plaintiff, notwithstanding this Action, is Quodam modo, an Action upon the Statute, i. by the equity of the Statute of West. 2. which gives expresly against the Warden of the Fleet; yet properly it is not an Acti­on upon the Statute: for in the Declaration in such actions, no men­tion is made of the Statute, which see in the Book of Entries, 169, 171. And here is not supposed any immediate personal wrong or offence to the Plaintiff: And an Action upon the Case it is not: for then the Writ ought to make mention of the Escape, and that it doth not here; and yet at the Common Law, before the Statute of West. 2. An Action upon the Case did lie for an Escape: and so Dyer, Manwood, and Mounson, costs are not given in this Case. And by Manwood, upon the [Page 10] Nonsuit, in an Action upon the Statute of 8 H. 6. the Defendant shall not have costs, for that is not a personal wrong, for the Writ is dissesi­vit, which is a real wrong.

Mich. 19 and 20 Eliz. In the King's-Bench.

Prescription. Townsend Table 96. Hern. 709. Tit. Trespass ib. 803. 1 Cro. 898. Rectory quid. Jones Rep. 230.IN Trespass for breaking of his Close, the Defendant iustified, to have a way by prescription over the Land in which the trespass is supposed, for carrying of such Tithes Usque ad Rectoriam de D. from such a place: And it was holden by Wray, and the whole Court, that the plea was not good; for in pleading such a way, there ought to be set forth, terminus a quo, & terminus ad quem, And this word Rectory, which ought to be terminus ad quem, is incertain; for a Rectory is a thing which consists of divers things, as Glebe, Tithes, &c. But he ought to have said, the Parsonage House, or other place certain: And afterwards it was shewed to the Court, that the said Rectory did con­sist onely of Tithes, and so there is not any place certain, as Parsonage House, Barn, &c. to which the Tithes have used to be carried, for the Tithes have used to be let to farm to divers persons, who have carried such Tithes to their own houses, and the Defendant is one of the Far­mers of the Tithes. Wray, If your case be such, you are to plead in this manner; That J. S. is seised in Fee of the Rectory of D. and that time out of mind, he, and all those, &c. have used for them and theirs formerly to have a way to carry their Tithes from such a place over the Land where, &c. unto such a high way, and name a way, which is the next to the place where the trespass was done; the which cause the Defendant pleaded so according to the direction of the Court.

XIV. Wingfield and Seckford's Case. Hillar. 20 Eliz. In the Common Pleas.

Debt for Rent. Co. 3. Rep. 24.IN Debt for arrerages of Rent upon a Lease for years, the truth of the case was, That before any arrerages incurred, the land Leased was evicted upon an Eigne Title; The Defendant pleaded, that he owed him nothing: If now he might give in Evidence the said eviction was the Question; and it was the opinion of Dyer, Manwood, and Mounson, Pleadings. that he could not, but he ought to have pleaded it especially; and they denied the opinion of the Preignothories, who said, that the Defendant ought to have pleaded the Eviction, and concluded Iudg­ment of Action; and not rein luy doit, and the Court advised the De­fendant to plead accordingly.

XV. Beamont and Dean's Case. Hillar. 20 Eliz. In the Common-Pleas.

Dower. Dyer 361.IN Dower brought by the wife of Beamont, Master of the Rolls, in the time of E. 6. The Defendant said, that he himself, before the Writ brought, did assign a rent of 10l. per ann. to the Demandant, in recom­pence of her Dower, upon which the Demandant did demur in Law; and the cause was, because the Tenant had not shewed what Estate he had in the Lands at the time of the granting of the Rent, as to say, that he was seised in Fee, and granted the said Rent; so as it might ap­pear to the Court upon the plea, that the Tenant had a lawfull power to grant such a Rent, which was granted by the whole Court, and the demur holden good.

XVI. Hinde and Sir John Lyon's Case. Hill. 20 Eliz. In the Common-Pleas.

IN Debt by the Plaintiff against the Defendant as Heir,Dyer 124. a. 3 Len. 70. 3 Len. 64. he plea­ded, That he had nothing by Descent but the third part of the Manor of D. The Plaintiff replied, Assets; and shewed for Assets, that the Defendant had the whole Manor of Dale by descent, upon which they were at issue: and it was given in evidence to the Iury, That the Manor was holden by Knight's-service; and that the said Sir John, the Ancestor of the Defendant,Devises. by his Will in writing de­vised the whole Manor to his Wife, until the Defendant, his Son and Heir, should come to the age of 24 years; and that at the age of his said Son of 24 years, the Wife should have the third part of the said Manor for term of her life, and her Son should have the residue: and that if his said Son do die before he come to his age of 24 years, without Heir of his body, that the Land should remain to J. S. the Remainder over to another: The Devisor died, the Son came to the age of 24 years; and the Question was, If the Son hath an E­state-tayl, for then for two parts he is not in by Descent? And by Dy­er and Manwood, Iustices, here is not any Estate tayl, for no tayl was to rise before his said age, and therefore the tayl shall never take effect; and the Fee-simple doth descend, and remain in the Son, un­less he dieth within the age of 24 years, and then the Entail vests with the Remainders over. But now having attained his said age, he hath a Fee-simple, and that by Descent of the whole Manor, and a general Iudgment shall be given against him, as of his own Debt: And an Elegit shall issue forth of the moyety of all his Lands, as well those which he hath by descent from the same Ancestor, as any else; and a Capias lieth against him. But Manwood conceived, That if ge­neral Iudgment be given against the Heir by default, in such a case a Capias doth not lie, although in case of false Plea it lieth. Dyer con­trary; and the Writ against the Heir is in the Debet & Detinet, which proves, that in Law it is his own Debt: and he said, that he could shew a precedent where such an Action was maintainable against the Executors of the Heir.

XVII. Hil. 20 Eliz. In the Common-Pleas.

A Man made a Lease of Lands by Indenture,Roll. 1. part. 870. to begin after the expiration of a Lease thereof made to one Duffam; and in an Action of Covenant brought by the second Lessee against the Lessor,Covenant. the Lessor said, That there was no such Duffam in rerum natura, at the time of the supposed Lease made to Duffam: it was argued,Estoppell. That this Plea doth not lie for the Lessor, for he is estopped to say against the Indenture, That there is no such Duffam, &c. And also if no such person was, then the first Lease was void, and then the second Lease shall begin presently, which Manwood and Mounson granted, and by Manwood, the Defendant shall be estopped by the Recital of the first Lease, to say, That there was no such Duffam: And although the common Ground is, That a Recital is not an Estoppel, yet where the Recital is material, as it is here, it is otherwise, for here the se­cond Lease is to begin upon the expiration of the recited Lease; and therefore in this case it shall be an Estoppel.

XVIII. Mich. 20 Eliz. In the King's-Bench.

Action upon the Stat. of 5 Eliz. for Perjury. 3 Len. 68.IN an Action upon the Statute of 5 Eliz. for a Perjury by three, the Plaintiffs declared, That the Defendant being examined upon his oath before Commissioners, If a Surrender was made at such a Court of a Copyhold to the use of A. and B. two of the Defendants? The Defendant swore there was no such surrender made, &c. Exception was taken to the Declaration, because that the certainty of the Co­pyhold did not appear upon the Declaration: for the Statute re­quires that in such Case the party grieved shall have remedy, so as it ought to appear in what thing he is grieved; quod fuit concessum per totam Curiam. Another Exception was taken, because the Action is given in this Case to the party grieved, and it appeareth upon the Declaration, that the Surrender, in the negative deposing of which the Perjury is assigned,Abatement of Writ. was made to the use of two of the Plaintiffs onely, and then the third person is not a party grieved, for he claims nothing by the Surrender; and therefore forasmuch as the two per­sons grieved have joined with the party not grieved, the Writ shall a­bate against them all, which Wray and Southcote granted.

XIX. 19 Eliz. In the Common-Pleas.

Action upon the Stat. of 13 E. 1. of Winchester. 2 Inst. 569.IN an Action upon the Statute of Winchester 13 E. 1. against the men of the Hundred of A. Barham, Serjeant, took Exception to the De­claration, because it appeareth upon it, that the half year after the Robbery is not yet come; for by the said Statute it is ordained, that the Countrey have no longer time than half a year after the Robbery done, within which time facent-gree of the Robbery, or respondent the body of the Misfeasors. And here the Action is brought within the half year: And for this cause the Declaration was holden to be insuf­ficient by the whole Court. And the Lord Dyer spake much in com­mendation of that Statute being made for the publick benefit of the whole Commonwealth: for the Law intends when a Robbery is done, That if the Countrey will not pursue the Malefactors, that some of them are Receivers or Abettors of the Felons.

Manwood, Iustice, said, When I was a Servant to Sir James Hales, one of the Iustices of the Common-Pleas, one of his Servants was rob­bed at Gadds Hill, within the Hundred of Gravesend in Kent, and he sued the men of the Hundred upon this Statute; and it seemed hard to the Inhabitants there, that they should answer for the Robberies done at Gadds Hill, because Robberies are there so frequent, that if they should answer for all of them, that they should be utterly undone. And Har­ris, Serjeant, was of Councill with the Inhabitants of Gravesend, and pleaded for them, that time out of mind, &c. Felons had used to rob at Gadds Hill, and so prescribed, and afterwards by award they were charged: And note, That the Case was, that three men were robbed, and they three joined in the Action against the Inhabitants.

XX. Colshil and Hasting's Case. 20 Eliz. In the Common-Pleas.

AN Extent was sued forth upon a Statute-Merchant by Colshil a­gainst Hastings, for Lands in his possession in the County of Sou­thampton: The Sheriff put the Plaintiff the Conusee in possession of [Page 13] parcel of a House and of Lands, and suffered Hastings to continue in the rest of the House,Execution executed. 1 Leon. 145. by reason whereof Hastings kept the possession of the whole, and held the Conusee out; The Conusee, to the intent that he might have full and perfect possession of the whole, caused the Sheriff, that he did not retorn the Writ of Extent, upon which it is entred on the Roll, Quod Vice-Comes nihil inde fecit, nec misit breve. Whereupon issued an Alias extendi facias, upon which the new Sheriff did retorn, That in the time of the old Sheriff, a Writ of Extent is­sued forth, &c. and that the said Sheriff had extended the Lands, by reason whereof the now Sheriff could not extend them upon the new Writ. It was moved for the Conusee, That the retorn was not good; For although that the Lands be extended by the first Writ, Yet because it is not retorned, it is not any Execution in Law, nor could the Conusee have an Assise, which Manwood, Iustice, denied: Loare Preignotho­ry, Our course is, when no retorn of such Writ is made, to grant an Alias, at the prayers of the party, and to enter upon the Roll, That the Sheriff upon the first Writ, Nihil inde fecit, nec misit breve. And that was taken by the Court to be a good and lawfull course in such Case; for upon such surmise, that no Execution hath been done, and that upon such entry on the Roll, an Alias Breve might be well awarded. And afterwards, this second Writ of Extent was not filed by order of the Court: And note, that the new Sheriff was exami­ned upon his Oath by the Court of the Action, and he said, that he made the retorn by the advice of Master Plowden, who told him, that he might safely retorn, that the Land was formerly extended, and although that the said Extent was not retorned; yet it is an Execu­tion for the Party. Manwood, Certainly this is an insufficient re­torn: But, perhaps Master Plowden did not know of this entry in the Roll, as aforesaid, for now it appeareth upon Record, that no Execution was done. If this entry had not been, I should well a­gree with Master Plowden, that the same is an Execution for the par­ty, although it be not retorned.

XXI. Steward's Case. 19 Eliz. In the Common-Pleas.

THE Case was, A. seised of certain Lands in Fee, granted a Rent-charge out of the same to another, and afterwards aliened the Lands to a stranger. The Grantee in a Replevin did avow for the Rent, and the other party pleaded, that nothing passed by the Deed: It was holden by the whole Court to be no plea, nor can any issue be joined upon it, but the Plaintiff ought to have said, That he did not grant by the Deed: For the same is a Rent newly created, and which had not his essence before the grant, and it cannot properly be said, That nothing passed by the Deed, but not of a thing that is in esse, but of things not in esse, That he did not grant, is the most natural issue, for a thing not in esse, non potest transire.

XXII. 19 Eliz. In the King's-Bench.

IN an Action upon the Case upon a Trover and Conversion to his own use per venditionem quibusdam hominibus ignotis, Trover and Conversion. the Defendant pleaded, That the goods were bailed to him, to bail over to J. S. to whom he had delivered them, absque hoc, that he did convert them to his own use, per venditionem hominibus ignotis. It was moved by Eger­ton, that that matter is not traversable, quod Wray concessit, for [Page 14] the conversion to his own use, is the cause and ground of the Action, and not the selling of the goods, &c.

XXIII. Mich. 19 and 20 Eliz. In the Common-Pleas.

A Man was outlawed in the Court of Hustings of London; and the Hustings in which the Iudgment of Outlawry was given,Outlawry. was holden two Weeks next after the last Hustings; so as there was but two Weeks betwixt the two Hustings, whereas commonly the Hustings is holden but every three Weeks, and now the Sheriffs of London were in doubt, if they might safely retorn the Outlawry, without dan­ger of an Action upon the Case brought against them by the party out­lawed; It was holden by Dyer and the whole Court, that they ought and might safely retorn the said Outlawry: for the Lord Dyer said, That there is a Record in the time of R. 2. whereby it appeareth, that in London they might hold their Hustings every Week, if they pleased, and afterwards he commanded Mosley and Christopher, Secondaries, to retorn the Outlawry, which was done accordingly.

XXIV. Lovelesse's Case. 19 Eliz. In the Common-Pleas.

Debt upon Recogni­zance. 1 Cro. 608. 817. LOvelesse, Serjeant, brought a Scire facias upon a Recognizance, and had Iudgment upon default, Quod habeat Executionem, and afterwards he brought an Action of Debt upon the said Iudgment, and exception was taken to the Action: for that he ought to proceed upon the Iudgment given upon the Scire facias, and ought to sue Exe­cution according to the said Iudgment by Elegit, or Scire facias, but not by Capias; but the Exception was not allowed; For the Recog­nizance is a Iudgment in it self, and an Action of Debt will lie upon it; without any Iudgment in the Scire facias; And Debt lieth as well upon the Iudgment, as upon the Recognizance it self; and so was the opinion of the whole Court.

XXV. Eliz. In the Common-Pleas. Brent's Case.

Dyer 340. b.THE Case was, That Robert-Brent being seised of Lands in Fee, made a Feoffment thereof unto the use of himself and Dorothy his Wife, for their lives; and if he do survive his said Wife, then to the use of him the said Robert and such a Woman as he should after mar­ry, for the Iointure of such Wife; the Remainder over to a stranger in Fee: And afterward (with the privity and assent of the Feoffor) he in the Remainder and the Feoffees join in a Feoffment to divers persons, (Note, both Feoffments were after the Statute of 27 H. 8.) and afterwards Robert Brent, the Husband, levyed a Fine to the same uses, and took a second Wife, and died: The second Wife, by the assent and commandment of the first Feoffees, after the five years past after the Fine, entered to raise the uses mentioned in the first Feoffment limited to the second Wife.

This Case was argued by all the Iustices of the Court of Common-Pleas: and Mounson, Iustice, conceived that the Entry of the Wife was lawfull, and that without the assent or commandment of the Feoffees. An use may be limited to one who is in esse, or in posse; and the second Wife here was in esse when the use was limited, and she was also in posse; [Page 15] for by possibility the first Wife might die, and also by possibility the Feoffor might take to Wife this Woman. A Gift to one who is not in esse or in posse, is void. A Gift to J. S. & primogenito filio suo, if he have a Son alive at the time of the Gift, he shall take jointly with his Father; but if not,Co. 1 Rep. Shelley's Case. yet after his death he shall take by way of Remain­der. A use is nothing else but a trust and confidence, and was not any Inheritance by the course of the Common Law; for no mention is made of uses in our ancient Books, when the Common Law greatly flourished, as in the time of E. 1. and E. 3. and also uses are not subject to the grounds of Law: And although divers Statutes have been made for the avoiding of divers policies for the gaining of Lands in Mortmain, yet the makers of the said Statutes could not find out any such convey­ances to uses. See the Statute of Religiosis, 7 E. 1. and see 29 H. 8. tr. Mortmain 39. There is a glance at uses 44 E. 3. 25. b. the words are, En foy demist, &c. and the Feoffees sued Livery. And the first mention of Vses in our Books is 30 H. 6. Br. Title to Uses 49. and the same case De­vise Fitz. 22. In the time of E. 4. Vses were more frequent; for 5 E. 4. 8. divers cases concerning Vses are there put, &c. and afterwards 1 R. 3. a new Statute was made for the benefit of Cestuy que use: and after­wards the Statute of 4 H. 7. for the Wardship of Cestuy que use: and af­terwards the Statute of 27 H. 8. which made an end of Vses. These V­ses at the first were of no value, but afterwards by continuance Commu­nis error fecit jus, so as they were taken and esteemed as Inheritances: And they cannot be more fitly resembled to any thing, as to Copyholds, which at beginning were but Tenures at will, and were not known at the Common Law, but now they are in the same reputation in Law as Inheritances: and they are not guided by the Rules of the Common Law, but by the intent of the parties: which appeareth in this Case at Bar to be, That she who should be the second Wife of Robert Brent, the Feoffor, should have the Lands ut supra: and therefore this Vse shall rise, and the Statute of 27 H. 8. shall draw the possession after it.

Manwood, Iustice; As to the commencement of Vse, it hath been as long as mankind hath been guided by Reason: and although no mention is made of Vses in our ancient Books, yet that is no argu­ment that Vses have been but of late times. Vses were not com­mon, therefore were not at all, is a Non sequitur. As long as Wills have been, Trust and Confidence hath been; and also as long as Marriage hath been. See the Writ of Causa Matrimonii prolocuti: and see the Statute of Marlbridg, cap. 6. there is mention of falsa Feoffamenta: And note, by other words of the said Statute there was a Trust, but it was a false trust to deceive another; and therefore such a mis-shapen Trust is not called a Trust by the said Statute, but a Collusion. And Mr. Littleton saith, That Cestuy que use shall be sworn upon Enquests, which was not enacted by any Statute, but practised and put in ure by reason of Common Law. And I have seen divers ancient Deeds of Vses: and in ancient time, you shall not find that any would purchase Lands to himself alone, but had two or three joint Feoffees with him; and he who was first named in the Charter of Feoffment, was Cestuy que use, although that no Vse was declared unto him upon the Livery, and so it was known by the oc­cupation of the Lands. And the reason why no mention is made in our ancient Books of Vses, is, because men were then of better Con­sciences than now they are, so as the Feoffees did not give occasion to their Feoffors to bring Subpoena's to compell them to perform the Trusts reposed in them.

As to that which hath been said, That Vses have taken their begin­ning after the Statute of West. 3. For before the said Statute, if a man had made a Feoffment in Fee without declaring any use, it should be to the use of the Feoffee, because there is a sufficient consideration betwixt [Page 16] the Feoffor and Feoffee to raise the use, i. the Seignory crea­ted by the Law betwixt them: but now by the said Statute such con­sideration is taken away; and then upon such Feoffment, without consideration or declaration of use, it is to the use of the Feoffor himself; the same is no reason against them: for although that an Vse implied was not before the said Statute of West. 3. yet a Vse expressed was; and if before the said Statute the Feoffor had declared an Vse; the same had been good: as at this day, a Gift in tail, or a Lease for life, is made to another use, yet notwithstanding that the Law doth create a Tenure upon the Lease or Gift, yet the use expressed shall be good. And although Vses are of such Antiquity, yet they are not directed by the Rules of the common Law, but by the Will of the Owner of the Lands: For the Vse is in his hands as clay is in the hands of the Potter which he in whose hands it is may put into what form he pleaseth: And not­withstanding that now the possession be executed to the Vse, yet the property and quality, as abstracted from the possession, shall not be drowned in the possession: and so for as much as Vses were by permis­sion of Law guided at the wills of the parties, so also shall be the posses­sions: And so because, That an use, as abstracted from the possession, might have been well limited to the Wife which should be, notwithstan­ding that at the time of such limitation such a one was not in esse, in the same manner it shall be now, when the possession is presently exe­cuted to the use: and so in this case, the second Wife shall be capable of this use, according to the will and direction of the Owner. If a Fe­offment in Fee be made to the use of B. for life, and if A. before such a day shall pay 10l. to the Feoffor, then to the use of the said A. for life, the same is a good use to begin upon the said condition; and yet if it had been limited in possession, it had been otherwise: and that an Vse may begin upon a contingency, see the case 27 H. 8. 5. A Covenant is made by Indenture betwixt A. and B. that the Son of A. shall marry the Daughter of B. upon which B. pays 100l. to A. and the said A. doth co­venant, that if the said marriage doth not take effect, that then the Feoffees of the said A. shall suffer the said B. his Executors and Assigns, to have the issues and profits of certain Lands, until B. his Executors and Assigns, shall be contented and satisfied of the sum aforesaid by the said A. his Executors or Assigns, there, if the marriage doth not take effect, upon such contingent, the use shall rise to B. And see 30 H. 8. Br. Feoffs to Uses 50. A. covenants with B. that then B shall enfeoff A. of the Manor of D. then B. and his Heirs shall be seised of the Manor of D. to the use of the said A. and his Heirs: Now if A. enfeoffeth B. ut supra, then, &c. vide librum. And here in our case, the second Wife doth not hold joyntly with her Husband, for their Estates do not begin together, for the Husband is in of his ancient Estate which he had during the first marriage, notwithstanding the words of limitation to the said Hus­band and his second Wife, but she shall take by way of Remainder.

Harper, Iustice, Vses began about 18 E. 2. after which time there was such a general liking of them, that they were anew used, but they did not come into common practice before the time of King Henry the sixth, when the great contention fell out betwixt the two great Houses of York and Lancaster, at which time Vses were in great estimation for the safety of Inheritances. Afterwards, Vses by practices became mischievous, and prejudicial to the publick Iustice of the Realm, and to many particular persons; for some timentes implacitari, conveyed their Lands secretly to uses, so as he who had right knew not a­gainst whom to bring his action: and for that, divers Statutes have been made to enable the Subject to implead the pernor of the profits, 4 H. 4. 7. 11 H. 6. 4. 1 H. 7. And as to the making of the Statute of 27 H. 8. the truth is, that the King was displeased for the loss of Wardships, and other injuries done to him; for which cause he [Page 17] complained to the Iudges of the defect of the Law in that case who therefore shewed unto the King the causes of those injuries and losses to the King; and farther shewed to the King, That if the possession might be joyned to the use, all would go well, and all the injuries, wrong, and loss, which came to the King by reason of such Vses, Wills, and secret Feoffments, would be avoided: For which the King commanded his Council to frame a Bill to that purpose, and present it to the House of Commons in the 24 year of his Reign, but it was then rejected; and the King at that time would have been contented, that the fourth part of the Land onely should descend: and from that time the King stayed farther proceedings in the said cause until 27 H. 8. at which time it took effect: And their cure was to pen the Statute so precisely, that nothing should be left in the Feoffees, but that the whole Estate should be executed by the Statute, so as the said Statute did utterly take out all from the Feoffees. Whereas it hath been said, That a Vse hath been as long as any Marriage hath been, and so conceived upon the Writ Causa Matrimonii prolocuti, the same is not any reason; for in that Case there is not any Confidence or Trust: for if the marriage doth not take effect, the woman shall have her Writ de Causa Matrimonii prolocuti. In Conveyances we are to respect two things, the form, and the effect of it; and in all cases where the form and the effect cannot stand together, the form shall be rejected, and the effect shall stand. A Lease for life is made to a Feme sole, she takes Husband, the Lessor confirms to both of them; the Husband cannot take any Estate presently according to the words of the Confirmation; but be­cause the Will of the Lessor is, that an estate shall accrue to the Hus­band, he shall have it as the Law will, by way of Remainder. So Lands are given to an Abbat and a secular man, the form of the words purport a joynt Estate, but that by Law cannot be; and therefore they shall take as the Law will, rather than not at all. In our case here, The limita­tion of the Vse cannot be pursued precisely according to the words, which are, viz. If the Husband over-live his said first Wife, then to the use of the said Husband and his Wife which shall be; which in words is a joynt Estate: and therefore the words shall be construed, After the death of the first Wife, unto the use of the Husband until he marrieth, and afterwards to the use of him and his second Wife, in which case they shall take joyntly.

Dyer, chief Iustice, As to the beginning of Vses,See Bacon's Reading up­on this Stat. he conceived that the same was immediately after the Statute of Mortmain, at which time all their shifts then in practice were found out: which see, the Sta­tute of Mortmain, 7 E. 1. Stat. de Religiosis: for which cause they were af­ter driven to find out other shifts not provided for by the Statute, which were espyed by the making of the Statute of 15 R. 2. cap. 5. and in that Statute these words, Behoof and Use are used; which is the first place those words have been used in our Law, and yet long time before that Statute Uses had been in practice, as appeareth in the Exchequer, 34 E. 3. the which in the time of Queen Mary, when the said Record was shew­ed in the Exchequer to the Iustices, the effect of which Record was, That Walter de Chirton, who was Customer of the King, became in­debted to the King in the sum of 18000l. and with that the King's mo­ney had purchased in the name of his friends, to defraud the King, many Lands, and took the profits of them; those Lands so purchased were extended to the use, and for the King, in payment of his Debt, as well as if Walter de Chirton himself had been seised of them, and that by the advice of the Chancellor and the chief Iustices. Now Vses by tract of time have grown in credit, so as Cestuy que use have been sworn in Inquests, and by the Law they might justifie the maintaining of their Feoffees when they had been impleaded, which they could not have done if they had not more interest in the Lands than strangers: [Page 18] and they (Uses) have been in such reckoning and account since, that an Vse hath obtained the name of an Inheritance, and is now reputed a­mongst the Estates of Lands in our Law; and therefore we say in Speeches, and in penning of Statutes, Estates in possession, and E­states in use: and a Vse cannot be limited to Parishioners, no more than the Land it self; so as there is a great affinity betwixt the words, Lands and Use. It is to be granted, That the Statute of 27 H. 8. doth devest all out of the Feoffees, yet it doth not devest it before that the use be vested in Cestuy que use; for the words of the Statute are, That the possession shall be executed in such manner, quality, and de­gree, as was the Vse; therefore the vesting of the Vse ought to pre­cede the execution of the possession to it. And he was of opinion, That this future Vse in the principal Case limited to the second Wife did re­main in the Feoffees at the first, but that they had destroyed it by their Feoffment; for the second Wife at the time of the Feoffment was not known, and therefore it shall now accrue: and he was also of opinion, That this limitation to the second Wife was void at the beginning; for the second Wife was not a person able to take, when the Estate and Vse limited to the first Wife was determined, and therefore she shall not take at all: and if such an Estate had been limited in possession, it should not have vested, no more than now.

Mounson, Iustice; When the Feoffor and the Feoffees joyn in a Fine of that Land, within which the use in future is wrapped, he conceived, That the Vse being in abeyance and consideration of the Law, could not be touched by the Fine. It is to be confessed, That an Vse may be discontinued: See 4. H. 7. 18. A Feoffment made to the use of A. for life, and after to the use of B. in tail, &c. A. makes a Feoffment in Fee, and dieth, the same is a discontinuance of the other Vses: and see 27 H. 8. 29. And in our Case, the Vse might arise without any En­try of the Feoffees; for the Vse is not discontinued, but the Feoffees are barred by the Fine: And he was also of opinion, That this Vse might take effect without any Entry, and take effect according to the limitation.

Manwood, This Estate which is limited in use to the second Wife, because it cannot vest in her because not known, the Feoffees are yet con­tent with it, and this Vse is to grow out of their Estates at the season­able time: Then when they joyn in a Feoffment, their Estate which was the root of the Conveyance, and the Vses which are the branches, spring not till she dieth; and therefore if the Estate of the Feoffees, which is the root of the Vses, be destroyed by alienation of the Land before the Vses have their being, as in our Case it is, because that then the second was not known, no use can afterwards rise, for by the Feoffment they are destroyed, and also every possibility of them. But if the Vses had been in esse, so as the persons to whom they are limited are known, then the Statute shall execute the possession to such uses. And as to that which hath been objected by my Brother Mounson, That the Law shall keep and preserve the Vse, and that notwithstanding any thing done by the Feoffees at its due time it shall rise: That cannot be; for the Statute of 27 H. 8. doth not speak of such Vses as this in our Case, but of such Vses onely, of which one may say, such a use is limited to such a person and such to such a person, &c. and such Vses are onely executed by the Statute. It may be demanded, What Estate the Feoffees have in the Lands until such uses be executed? It may be answered, A Fee simple determinable, as the Lord hath when he entereth upon his Villein Donee in tail: And I conceive, That this use was not in Custodia Legis, quia de minimis non curat Lex: and the use was such a thing of which the Law took no knowledge; and in case of an Estate in possession, such an use in abeyance should be bound: As a Lease for life unto A. the Remainder to the right Heirs of B. [Page 19] A. suffers a common Recovery in the life of B. who afterwards dieth, and afterwards A. dyeth, the Heir of B. is bound, for he had not right at the time of the Recovery. This Fine levied by the manner shall not destroy the uses limited to the second Wife; for as to the Feof­fees, they have nothing to doe with the Lands to transfer any Estate against the former limitation; for the Statute leaves nothing in the Feoffees, but vests all in Cesty que use, and that which cannot vest in him to whom it is limited, shall return to the Feoffor: As if I make a Feoffment in Fee to the use of my self for life, and after to the use of my second Wife, all the Fee is now in me, and when I take a se­cond Wife, then the Feoffees shall be seised to the use of such Wife in Remainder for her life: but in the Case at Bar, the Feoffees at the time when this second Wife was in esse, had not any thing in the Lands, for they had departed with all their Interest before by their Feoffment and Fine.

Note, That by the first Feoffment the use was limited to D. the first Wife of the Feoffor, for term of her life, the Remainder in tail to A. Brent, the Remainder in Fee to one Broughton, and all these uses were executed by the Statute; but these persons were not par­ties to the Livery, but onely the Feoffees, which had not any thing: Then when they make their Letter of Attorney to make Livery of seisin (not being seised of the Land) the Attorney onely is a Disseisor, and so nothing passed from the Feoffees, if any right had been in them: and for another reason nothing passed by this last Convey­ance out of the Feoffees, for the parties to the latter Conveyance had notice of the use, and so it appeareth by the second Indenture, the which makes mention of the first uses, &c.

Dyer, Here in our Case, the Founders of these uses, i. the Feof­for and the Feoffees, have an intent to overthrow these uses, for at the Common Law the Feoffees might doe it of themselves; As if the Feoffees had made a Feoffment in fee in consideration of Mo­ney to others who had not notice of the uses, now the uses are gone, and the second Feoffees in such Cases were seised to their own uses. I well know, That by this Feoffment all is devested out of the Feof­fees, which might vest in the person to whom the use is limited; but here this use which was limited to the second Wife, could not upon the limitation of it vest in any person; and therefore it shall remain in the Feoffees who are put in Trust with it, and therefore have interest in the Lands until all the Trusts be performed: and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee, and the interest which the Feoffees have in the interim, untill the execution of all the uses, is a Fee-simple determinable; for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished, i. untill all the uses limited upon the Feoffment are executed, and have their full perfection.

And whereas it hath been alledged on the other side, That upon the second Feoffment nothing passed out of the Feoffees, for which it shall not be said in Law their Livery, but that the Attorney shall be said the sole Disseisor; As to that I conceive, That whatsoever was lost in the Feoffees passed by that Livery. If he in Reversion upon an Estate for life makes a Charter of a Feoffment, and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes, &c. if Li­very be made by force thereof, the Fee-simple shall pass: And he cited a Case which was argued before all the Iustices of England, reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby, after which the Reversion was granted to the Countess of Richmond for life, after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick, who made a Feoffment of [Page 20] all to certain persons, to the use of his eldest Son and his Wife for her Iointure, with a Letter of Attorney to make Livery and seisin; the Attorney made Livery accordingly, and by that Feoffment and Li­very, it was adjudged, that the Fee-simple did pass: So in our Case, upon this second Feoffment, a Disseisin is done to D. the first Wife, and yet the right of the Feoffees doth pass thereby; and although it shall not be taken in Law their Livery, yet it shall be adjudged their confirmation, because they have joined in the Deed, and that shall bind their right to establish the same in the new Feoffees, as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor: And as to that which hath been objected, that because at the time of the Feoffment, the Feoffees had not any thing, &c. and therefore nothing shall pass: and they have likened to the Case, where the Father is disseised, and the Son and heir doth release to the Disseisor, the same shall not bind the heir after the death of his Father: The same is not like our Case; for there is a great difference betwixt a Release and a Feoffment; for if the Son disseise the Father, and maketh a Feoff­ment in Fee in the life of his Father, notwithstanding that he had not any right at the time of the Feoffment, yet he is bound.

XXVI. Thurkettell and Tey's Case. Trin. 29 Eliz. In the King's-Bench. Rot. 342.

1 Cro. 110, 111.IN Debt by John Thurkettell against Edw. Tey, and Mary his Wife, Executrix of Robert Thurkettell, the Case was, That Agnes Thur­kettell, Mother of Robert, the Testator, devised certain Lands to Ro­bert, and afterwards devised 40 l. to the Plaintiff, John, upon condi­tion, that the said John, Cum requisitus esset acquietaret, & retaxaret prae­dict. Roberto omnes actiones reales & personales, querelas, &c. praedict. 40 l. per dict. voluntat. legatis tantummodo exceptis; Agnes died, Robert made two Bonds to John, The first was endorsed to pay 20 l. parcell of the said Legacy, within a year after the death of the said Agnes, so as the Plaintiff release according to the will of the said Agnes. The second Obligation was with the same condition, to pay 20 l. residue of the said Legacy, within two years after the death of the said Agnes, upon condition to release, ut supra, and all this matter was pleaded in barr; And farther, That Robert required the said John to make the Re­lease, &c. which he refused, and they were at issue upon the request, and it was found for the Plaintiff; i. Quod dict. Robert. non requisi­vit, &c. upon which Verdict Iudgment was given for the Plaintiff; upon which the Defendants brought Error, because it appeareth upon the Record here, quod Billa praedict. prosecuta fuit infra duos annos post mortem dict. Agnet. & sic ante diem solutionis: For the second Bond, see 46 E. 3. 28. by Finchden and Persay, and see there, by Persay, That if my Writ be brought before the day of payment, and doth depend in suit till after the day of payment, that my Writ is made good; for at all times the Defendant was my Debtor. And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber: and note, that the day of payment did incurr, pendent the Writ.

XXVII. Lightfoot and Butler's Case. 29 Eliz. In the Exchequer.

IT was said in this Case by the Solicitor General, That if one hol­deth of the Queen, as of her Manor, he shall not have the privi­lege of the Exchequer for that cause; But if the King grants Tithes, and thereupon reserveth a Rent, nomine decimae, and a Tenure of him, there he shall have the privilege: The principal Case was,Co. 4. Inst. 118, 119. that one of the parties claimed the Lands in question as his Freehold, but holden of the Queen, as of such a Manor; and the other claimed it as Copyhold, holden of the same Manor; And the Freeholder did sug­gest in the Exchequer, That the demands of the Manor are not in­different. Clark, Baron, If it be so, this Court shall have jurisdic­tion. Manwood, If the matter pass against you wrongfully, wherefore may you not have an Assise? And the Case of Beaumorris was cited (but I remember not to what purpose) i. The Mayor and Commo­nalty of Beaumorris were Patrons of a Chantry; and they and the Chantry Priest made a Lease for years by Indenture, in the end of which was this Clause, In cujus rei testimonium, tam the Priest, quam the Mayor and Commonalty have put their common seal, and it was moved that there was not any seal for the Priest, for he could not have a common seal with the Mayor and Commonalty. Clark, Twenty men may seal with one seal, and they may also seal with one seal upon one piece of Wax onely, and that shall serve for them all, if they all lay their hands upon the seal together. Manwood, They may all seal with one seal, but upon several pieces of Wax. Gent, when many are parties to a Deed, the words are Sigilla omnia; which cannot be aptly said in this Case, where all seal upon one piece of Wax.

XXVIII. Barns and Smith's Case. 29 Eliz. In the Exchequer.

EManuel Barns, Executor of Barns, late Bishop of London, 3 Len. 171. brought Debt for arrerages of Rent, reserved upon a Lease for years, of certain Mines demised to Smith, i. Mines called Argil, and Mines cal­led Greenbourn; and it was against the Executors of Smith. The De­fendant pleaded, as to parcel non detinet, and as to the other parcel of the arrerages, That in the Indenture of Lease, there is a Covenant, That if it shall happen that the said Lessee be hindred, Quo minus Mi­neriis, praed. gaudere possit; That then so much Rent should be de­ducted anno, to the value of the Mine, that he could not enjoy, &c. And he said, that he was hindred, Quo minus gaudere potuit Mineriis praed. &c. and issue was joined, that the Lessee could not enjoy, &c. and it was found for the Plaintiff. It was moved by Coke, in arrest of Iudgment, That here is not any place shewed where these Mines were, so as it doth not appear from what place the Visne should come; as if in an Action (as here) the Plaintiff declares of a Lease made of Lands, cal­led R. in such a County, the same is not good. The issue here is, Non potuit fodere in praed. Minera de Greenbourn, for the space of seven years and an half, from whence shall the Visne come for trial of it? Not from Durham where the Lease was made; for no affinity or nearness is be­twixt the place where the Lease was made and this issue. But if the is­sue had been, That the Lessor had not any thing in the Mines at the time of the Lease, that might be tried where the Lease was made: Another [Page 22] exception was, because that the plea is; Quod non potuit fodere, in 3, 4, 5, 6, 7, 8. dimidio, 10, & 11. and that appears to be seven years and a half, and the Iury find that he could not digg, per spatium septem annorum tantum, without speaking of the half year, and so they have not given a full Verdict: And as to the first Exception, it was said, If a thing be alledged in pleading which is issuable, and there is not laid down any place of it, although that no issue be joined upon it, yet because he hath prevented the other of his plea to it, Iudgment gi­ven in such case shall be reversed: and so it was rated, betwixt Matthew and Stansham: So upon the Statute of Vsury, the Informer charged the Defendant, that by way of corrupt bargain he hath received so much, and doth not shew the place, although no issue was joined upon it, but they were at issue upon another point, yet if Iudgment in such case be given, it shall be reversed. And in all Actions upon the Case, where Request is necessary, and the Plaintiff ought to alledge it; the place of the Request must be shewed: and he said, That such issue was to be tried where the Mines leased are; and here no place is alledged, where the Mines are, but onely in the County of Durham; and yet a Visne of the City of Durham hath tried the issue, which ought not to have been, but the Visne ought to have come, De Corpore Comitatus. Clark, Baron, If the issue be joined upon taking of the profits, it shall be tried where the Land is, but Non debet or detinet, where the Lease is made. Coke, The issue is, Non potuit fodere, and that is local; there­fore it shall be tried where the Mines are. Manwood, Non potuit fodere, Non potuit gaudere, are not local; but Non fodit, Non gavisus fuit, is local, and shall be tried where the Mines are: and here it is not shewed how he was hindred to dig, &c. and the issue is to be de postatia, non de actu. Tanfield, as to that which Coke hath said, That the Visne in this Case shall come, de corpore Comitatus, the same is not so, for such a Visne shall never be, but where the issue is upon Nul tiel vill hamlet, or place known: In another Case the trial shall be, de corpore Comitatus, as in a false im­prisonment the Defendant justifies, that the common voice and fame was, that the Plaintiff committed such a Felony, &c. The Plaintiff traverseth the common voice and fame, there the Visne shall be, de cor­pore Comitatus, 11 E. 4. 4, and 5. and see also 25 Eliz. the Case of Gynne and Constantine reported now in Coke, 6. part Dowdale's Case, 48. As to the defect in the verdict for the half year, the Record is not so; for the Record is, dimidio anni decimi, & undecimi, and so two half years make a whole year, and so there is but seven years in which the di­sturbance is supposed to be done. See as to the Visne, de corpore Comitatus, 22 E. 4. 4 Visne 27. Another Exception was taken, be­cause that the Declaration is, That the Lease was made at Durham, in Comitatu Dunelm. and doth not say also in Selberg, for such is the name of the County Palatine; but to that it was said, That every Writ of Execution which goes into the County Palatine, is directed Episcopo Dunelmensi, & Cancellario suo, quod det in mandatis Vice-com. suo, &c. And Durham was called Selberg in ancient times, and the name of the County Palatine there, is commonly Dunelm. & Selberg. and their pleas there entred; Placita coram Justiciariis de Dunelm. & Sel­berg. but the same is amongst themselves onely, and all directions from hence to them are Episcop. Dunelm. without mention of Selberg, and a Precedent was shewed to the Court to that purpose and intent. Manwood, Levied by distress, and issint rein arere shall be tried where the Lease was made: Clark, That is true, for by the (Issint) the plea before is waved: And see 8 H. 5. 10. Where an issue is to be tried in Lincoln, or such a Town, which is a Franchise, the Ven. fac. shall be of Lincoln, &c. and not de vicineto de Lincoln; for then the Iury shall be as well of the County adjacent, as of Lincoln it self, which the Sheriff of Lincoln cannot doe: but a Venire facias de suburbiis of Bristow was awarded good: [Page 23] And if in the case at Bar, the defendant had pleaded, that the Defen­dant had entred into part of the Mines, and so suspended his Rent, upon which they are at issue; that, by Manwood, shall be tried by a Iu­ry, de corpore Comitatus. The issue here is, If the Defendant might enjoy those Mines, Secundum veram intentionem dimissionis praedict. and that is referred to the Devise which was made at Durham, and there it is well triable. And afterwards, at another day it was holden, That all the issues are Jeofailes; but as to the want of place, the same was holden to be a material Exception. See the Case of Mynes, Plowd. 337. Exception was taken to the Information, because it is not laid down there is what Town or Hamlet Newlands lay; and it was holden, the same had been a material Exception, if the Defendant had demurred upon the Information, in which case there is no trial by Iury, &c. and he said, Misnosmer shall be tried where the Writ is brought, &c. So Ne unque administer as Executor, &c. Manwood, Here the Lease is said to be made at Durham, in a place certain; if now there be not any other local thing said which might draw the trial elsewhere, it shall be tried at Durham where the Lease is made: An Infant makes a lease for years, rendring Rent, and afterwards re-enters, and avoids his Lease by rea­son of his nonage, and Title is made against him by the Lease, upon which he pretended nonage, it shall be tried where the Lease was made, and afterwards Iudgment was given for the Plaintiff.

XXIX. Ross and Morrice's Case. Pasch. 30 Eliz. In the King's-Bench.

EDward Ross was Plaintiff in a Replevin against Edward Morrice, 1 Cro. 108, 109. and George Manly Defendants, who made Conusance, as Bailiffs to Jerom Weston. The Plaintiff declares, of the taking of two Geldings, 20 Decemb. 29 Eliz. at Nayland, in the County of Suffolk, in a certain place called Nayland-Court-Meadow. And the Conusance is that the place where was a Freehold of the said Jer. Weston, &c. The Plaintiff in bar of the Conusance shewed, That long time before, Sir Christo­pher Danby was seised of 30 acres of Meadow in Nayland, whereof the place where, &c. and Leased the same by Indenture to Thomas Calton, 19 Maii, 31 H. 8. Habendum from the Feast of the Annunciation, 1553. for the term of 45 years; Who, 1 E. 6. assigned his Interest to Edw. Ross, the Plaintiff's Father, who, 1 Maii, the said 1553. entred, and 11 Eliz. granted his Interest to Bamford and Mascal, who entred and were pos­sessed. Sir Christopher Danby died seised of the Reversion, 13 Eliz. and the same descended to Thomas Danby his son and heir: 14 Eliz. Mascal died, Bamford, 15 Eliz. granted to the Plaintiff, Habendum from the 17 of March 1583. for three years, which expired 26 Eliz. Bamford en­tred, and afterwards Thomas Danby granted the Reversion to Edw. Rockwood in Fee, to which the said Bamford Attorned; and the Plain­tiff by force of the said Lease,, put in his Cattel, &c. The Plaintiff Replicando said; That long time before that Danby had any thing, Jeo­fry, Lord Scroop, had issue of his body, Henry, Lord Scroop, and died; And that one John Guntwarby was seised of the said Manor of Nayland, whereof, &c. in Fee, by his Charter, 25 E. 3. gave to the said Henry, Lord Scroop, the same, Et haeredibus corpore suo exeuntibus, who had issue Stephen, who entred, and died seised, having issue John, who en­tred, and died seised, having issue Thomas, who entred, and 3 H. 7. suffered a Common Recovery to the use of himself and his heirs, The Recoverers enfeoffed, Thomas seised also of many other Lands, and had issue, Ralph, Jeofry, Alice, Elizabeth and Margery, and afterwards died seised. Ralph Lord Scroop entred, and thereof did enfeoff divers persons [Page 24] unto the use of himself, and Eleanor his wife, for their lives, and the heirs males of the said Ralph; and afterwards, the said Ralph being possessed of the said Charter of entail made, ut supra, by Guntwardy, 7 H. 8. Devised that the Feoffees should be seised of the said Manor of Nayland to the use of himself, and Eleanor his wife, for their lives; and if they died without issue of the body of the said Ralph, the said Jeofry then living, that then the Feoffees should be seised to the use of the said Jeofry, (being his Vncle) for his life, and after his decease, ad usum Rectorum haeredum in perpetuum secundum antiquam Evidentiam inde ante factam; with an averment, that the said Ralph, at the time of the said Devise, and of his death, was possessed of the Charter of Entail made by the said Guntwardy: and that the said Charter was the most ancient Evidence of the said, concerning the said Manor. Ralph died without issue possessed of the said Charter by which the Feoffees were seised of the said Manor of Nayland to his use for life, and after to the use of the said Jeofry for life, and after his decease, of the right heirs of the body of Henry, Lord Scroop, lawfully begotten, by reason of the said Devise, and the said Charter, and of the residue of the Manors, to the use of the said Jeofry and his heirs; Eleanor died, after whose decease, the Feoffees were seised of the said Manor of Nayland, to the use of the said Jeofry, right heir of the said Henry, Lord Scroop, of his body begotten, and of the other lands to the use of the said Jeofry in Fee: Jeofry died without issue, by which the Feoffees were seised to the use of the said, Alice, Elizabeth and Margery, Cosins and heirs of the body of the said Hen­ry Scroop, &c. And of the heirs of the bodies of the said Alice, Elizabeth and Margery, lawfully begotten, by reason of the said Devise and Char­ter, as to the said Manor of Nayland, and of the other Manors to their use in Fee: And afterwards the said Alice took to husband, James Strang­ways, who had issue, Thomas: Elizabeth took to husband, Fitz Randolph, who had issue Elizabeth, Dorothy, Agnes, Alice: Margery took to hus­band, Danby, who had issue, Sir Christopher Danby, named in the Bar, and afterwards all the said husbands and their wives died, by force of which the said Feoffees were seised of one part of the said Manor of Nayland in three parts to be divided, to the use of the said Thomas Strang­ways; and of another part, to the use of the four daughters of the said Elizabeth, and her husband Fitz Randolph, and of another such part to the use of the said Christopher Danby, and of their heirs in Tail; and of the other lands to the use of them in Fee, in degree of Coparcinary; Elizabeth, the eldest daughter of Fitz Randolph, took to husband Shirley; Dorothy her sister took to husband, Eshe: Agnes took to husband, May­nel, and Alice took to husband Dranfield. Thomas Strangways had issue, James, and died. And afterwards partition was made, by which, to James Strangways were allotted lands in Kent, and agreed that the Fe­offees should be seised of the said lands to the use of the said James and his heirs, and to no other use. To Sherley, and Elizabeth his wife, lands in Essex were allotted and agreed upon the partition, that the Feoffees should be seised to the use of them, &c. in Fee, &c. And to Danby the said Manor of Nayland, in tail, by reason of the Devise and Charter, aforesaid, as to the said Manor of Nayland, and of other lands in Fee. And afterwards, 23 E. 8. notice was given to the Feoffees of the said partition, and averred that the partition was equal, &c. and that the Feoffees were seised to the use of the said partition, untill 27 H. 8. and confessed the Lease made by Danby to Calton, and all the assign­ments set forth in the Bar to the Avowry, and farther shewed, That Thomas Danby entred upon Ross the Plaintiff, and enfeoffed Rock­wood, who enfeoffed Weston.

Coke, for the Plaintiff, The Case is no more; but where a man hath issue, a son and a daughter by several women, and Deviseth his Lands to his son, and the heirs of the body of the Father lawfully begotten, in [Page 25] which case, if the Son dieth without issue, the Tail is extinct, and the Daughter shall never have the Land, for she doth not take by way of Reversion or Remainder, and she doth not take in possession, because the possession was in Jeofry who was the Heir of Henry, &c. And these Cases were vouched; 1 Roberge's Case, 2 E. 3. 1. to Tail: John Man­devile took to Wife Roberge, and Mandevile gave land to Roberge, & hae­redibus ipsius Johannis quos ipse de corpore praedict. Robergiae procreaverit; there the Book is, That the Formedon was, Quae M. dedit Robergiae & haeredibus dict. Johannis quos ipsae de corpore dictae Robergiae procreaverit; Et quae post mortem praefat. Robergiae, & R. filii & haeredis dict. Johannis Mandevile, & haeredis ipsius Johannis de corpore dicto Robergiae per dict. Johannem procreat. &c. and the same Writ awarded good, which Coke denyed to be Law. And he cited the Case of Dyer, 4 and 5 P. and Ma. 156. A. gives Lands to one for life, the Remainder thereof rectis hae­redibus masculis de corpore dict. A. legitime procreat. remanere inde rectis haeredibus dict. A. who hath issue two Sons, and dieth; A. dieth, the eldest Son hath issue a Daughter, and dieth without issue male: And he con­ceived first, That in this case the limitation of the Remainder in Tail to the right Heirs of the body of the Donor is void, for the Donor cannot make his own right Heir a Purchasor, without departing with the Fee-simple of his person: But admitting the limitation is good, he said we are to consider, If this entail to the Son, once vested and commenced in the possession of the Son, when he dieth without issue male, The Estate be spent, or that the same shall go to the younger Son? And he said, that it was the opinion of Dyer in that case, That the younger Son was inheritable to the said Estate-tail: as in the Case of Littleton 82. where the condition is, That the Feoffee shall give the Lands to the Son and Heir of the Husband and Wife, and to the Heirs of the body of the Father and Mother lawfully begot­ten: and the Husband and Wife before any such Gift die, having issue, and afterwards the Feoffee gives the Land to the Son and Heir of the Husband and Wife, and to the Heirs of the body of the Father and Mother begotten, the condition is well performed: and if the eldest Son, to whom the Gift is made, dieth without issue, the young­est Son shall inherit: And in a Formedon in the Reverter, upon such a Gift the Writ shall be, Et quae post mortem of the eldest Son, ad ipsum reverti debet; because the Husband and Wife obierunt sine haerede de corpor. suis inter eos exeunt. And such was also the Opinion of Saunders. But Brook, Brown and Catlin were clear contrary; And he said, that Bendloes Serjeant, who reporteth that Case, doth affirm, That Iudg­ment was given in that case, That the Estate-tail was spent, and that the Daughter should have the Lands, and not the second Son: and so he said, That in the Case at the Bar, the Estate-tail was spent: But he said, That he conceived that in the principal case at Bar there is not any Estate-tail at all, because the words (upon which the Estate-tail is conceived) are incertain and too general, viz. [secundum antiquam Evidentiam,] for there might be many ancient Evidences, for the words may extend to Evidences which cut off the Estate tail, as well as to the Entail of Guntwardy. He also argued, That the Partition was void; and then the Lessee had a good interest for certain parts of the Lands, for Partition cannot be made of an Vse: and he said, that he agreed, That Partition betwixt Husband and Wives of Lands, if it be equal, should bind the makers, because they are com­pellable to make Partition of them; but contrary of an Vse, for that they are not compellable to do: Also, in the principal Case, the Land entailed is allotted to one of the Coparcenors, which is not good but during the Coverture, and afterwards void; and then the Lease is void but in part, and so the Conusance is not good.

[Page 26] Atkinson contrary; and he said, I conceive, that by words of Rela­tion a Fee may pass without the word Heirs. See 39 Ass. 12. The Fa­ther seised of Lands in fee, doth enfeoff his younger Son in fee, and the Father continues the possession of the Lands, claiming to hold them at the will of the Son; and the Son coming into the Town where the Lands do lie, in the hearing of his Neighbours saith to his Father, You have given to me these Lands, naming them; As fully as you have given them to me, I give them back to you again: and the same was holden to be a good Gift to the Father: 43 E. 3. 22. The King seised of a Manor, to which an advowson is appendant by Escheat or Con­veyance, gives the said Manor as entirely as such a one held the said Manor before the Escheat or Conveyance, the Advowson shall pass without special mentioning of it: And so here in our Case at Bar; This Will hath reference to the ancient Evidence, and it shall be as strong as if he had set down the special words of Entail; and to ancient Evi­dence before the Entail it cannot extend, for then a fee should pass, and then the Devise should be void, because to his Heir; and the word Antiqua Evidentia shall have reference to the Charter which was made by Guntwardy, for that was an ancient Evidence made two hundred years past: and he cited the Case of 40 E. 3. 8. the Provost of Beverley's Case, and conceived that the Estate was not spent, for that the Estate-tail was in Jeofry, as the fee was in him. Lands are given to the Father for life, the Remainder to the Son in Tail, the Re­mainder to the right Heirs of the Father; the Father dieth, the Tail and the fee are in the Son; but yet after the death of the Son with­out issue, the Lands shall be in the Brother's Son by descent, and not as Purchasor. And in our Case, Jeofry was in in the Tail, as right Heir of Henry; and if Jeofry dieth without issue, his Brother of the half bloud shall have the Lands, as in the Case before cited of 40 E. 3. but that shall be in Tail by force of the Devise. And he said, That in this case here, the Partition was made good enough, al­though it were of Lands in use, for a man might contract for an Vse without Deed: 11 H. 4. Partition 156. Partition of an Advowson with­out Deed: and that is by reason of the privity betwixt them, and be­cause they are compellable to make Partition: and in our Case they are compellable by Subpoena in Chancery to make Partition; and not­withstanding that the Lands entailed be allotted to one Coparcenor onely, and the fee to the other three, yet thereby the Partition is not void, but voidable: As an Exchange by Tenant in tail is not void, but if the Issue in tail accept of it, it shall bind him during his life: So here; and also by the death of the Husbands the Partition is not void, but voidable onely.

Clench, Iustice; How shall the Heir be said seised of the Lands entailed, which was allotted to his Father and Mother after acceptance and agreement?

Atkinson, Of certain part as Issue in tail, and of other parts by force of the Partition and acceptance, Quaere of that: for if it be not of the whole as Issue in tail, then the Lease is not void, but for so much whereof he was seised in tail, and then the Lessee is Tenant in com­mon with Weston, and then the Conusance is not good.

Cooper, Serjeant elect; Here wants certainty, for the words of reference are too general, and therefore void, ad usum rectorum hae­redum, without shewing of the Donor or of the Donee; and they are not helped by the subsequent words, secundum antiquam Evidentiam ante hac factam, for that also is incertain; for it appeareth upon the Re­cord, That there are divers Evidences of the said Lands, as the Char­ter of Gift, the Recovery, and the Conveyances made 4 H. 7. and which of them is intended by the Devise, non constat: and the said defect is not helped by any of the Averments; i. That the Devisor was possessed of [Page 27] the said Charter of Entail at the time of his death; and it is also not to the purpose, for it may also be, that he was possessed of other Evi­dences as ancient as the said Charter of Entail: It is said, that there is no other ancient Evidence of the Lord Scroop, but it is not averred That there was not other ancient Evidences of the said Lands. But admit that the limitation be good by that reference, yet there was not any Estate-tail, for every Estate-tail ought to be limited in certainty, which see in the Statute of West. 2. secundum formam in Charta Doni ma­nifesto expressam, &c. and here it doth not appear upon the words of the Charter, if the Estate-tail be limited to the Heirs of the Donor, or un­to the Heirs of the Donee? and he said, Admit that the same is an E­state-tail, then the Question is, If Jeofry be a Purchasor? and if he be, then by his death without issue the Estate-tail is spent: And he said that the Estate for life in Jeofry is drowned by the Estate-tail limited to him, for they are united together.

Egerton, Solicitor-General; Reasonable and favourable constructi­on ought to be made of this Devise according to the intent of the Devi­sor: As 35 Ass. 14. Lands are given to B. and his Heirs, if he hath issue of his body; and if he die without issue of his body, that the Lands shall revert to the Donor and his Heirs, the same is a good Entail; and up­on the death of the Donee without issue, the Donor shall re-enter: And so here, although that [rectorum haeredum] be incertain words, yet the same is supplied by the subsequent words, viz. secundum antiquam eviden­tiam. As, where the King grants to a Mayor and Commonalty such Liberties as London hath, the same is a good Grant: 2 H. 7. 13.1 Leo. 245. And he conceived, That this Estate-tail shall be said to begin in Henry, al­though he was dead before, and that all his Issues should inherit it, and that it should not be determined by the death of Jeofry without is­sue; and in proof thereof he vouched the Case before cited, Littl. 81, 82. for in that case the condition could not be holden to be performed, if the Heir to whom the Gift was made in facto should be in by purchase, and so the Estate-tail spent by his death without issue: and also he vou­ched the Case of one Shelley, That although the Heir took that which was not ever in his Ancestors, yet he did not take it as a Purchasor, but as in course of a descent; and he also cited Robridge's Case. And afterwards, the same Term, by award of the Court, Iudgment was entred for the Plaintiff, for the incertainty of these words [secundum antiquam Evidentiam] to what Evidence it should refer; and also [rec­torum haeredum] without shewing whose Heirs, i. of the Donor, or of the Donee. And Wray, chief Iustice, said, It shall be intended upon this Will, That the meaning of the Testator was, That the Lands should go unto his Heirs according to the Law, according to all his Eviden­ces which he had of his Lands, and that is a Fee simple; and it shall not be intended, That the Testator had such a special remembrance of one Deed made two hundred years before, viz. 25 E. 3.

XXX. Perry and Some's Case. Mich. 30 Eliz. In the King's-Bench. Rot. 482.

SOme, Parson of the Church of Sherring in Essex, 1 Cro. 139. libelled in the Spiri­tual Court against Perry, for the Tithes of green Tares, eaten before they were ripe, and for the Tithes of the Herbage of dry Cattel, and for Tithes of Sheep bought and sold, and for Churchings and Burials; Perry prayed a Prohibition, and in his surmise; as to the green Tares, he said, That they had used, time out of mind, &c. in the same Parish. In consideration that they had not sufficient Mea­dow and Pasture for their milch Kine, and draught Cattel to pay for [Page 28] the Tithes of the ripe Tares, the tenth shock; but for their green Tares which are eaten up before they are ripe, in consideration that they gave them to their Cattel, they had used to be discharged of any Tithes thereof; and the truth was, That 400 Acres of Lands within the said Town had used to be plowed and sowed every year by the la­bour of draught Cattel, and industry of the Inhabitants, in conside­ration of which, and that in the said Parish there was not sufficient Meadow nor Pasture for their draught Cattel, they had used to be dis­charged of the Tithes of green Tares eaten before they were ripe: It was holden by the Court, that the same was a good custome and consideration, for the Parson hath benefit thereby, for otherwise the said 400 Acres could not be plowed; for without such shift to eat with their draught Cattel the green Tares, they could not maintain their plough Cattel, and so the Parson should lose his Tithes thereof; and for the Tithes of the green Tares, he hath the Tithes of 400 Acres. There was a Case lately betwixt the Lord Howard and Nichols, where the suit in the Spiritual Court was for the Tithes of Rakings, and a surmise to have a Prohibition was made, that the Inhabitants had used to till and sowe their Lands, &c. and they had used to be dischar­ged of their Tithes of rakings after that the shocks were carried a­way. And Coke, who was of Council with the Parson, durst not de­murr upon it, but traversed the Prescription. Wray, Chief Iustice, The want of Meadow and Pasture in the Parish, is the great mat­ter here, and there is not any mischief here, as if they had surmised, that for want of Meadow and Pasture, they had eaten their Mea­dows with their Cattel; And it was held by the whole Court, that it was a good Prescription.

XXXI. The Queen and Partridge's Case. Trin. 30 Eliz. In the King's-Bench.

1 Cro. 125.IN a Quo Warranto, brought against Partridge, It was holden by all the Iustices; That a man might prescribe to hold a Leet oftner than twice in a year, and at other days than are set forth in the Statute of Magna Charta, Cap. 35. because the said Statute is in the affirmative: But Popham, Attorney General said, That one cannot prescribe against a Statute. And it was moved by him; If a general Pardon be granted with general Exception in it, he which will have advantage of it, ought to plead it, and shew that he is not any person excepted, for otherwise the Iudges cannot allow him the benefit of it, because they do not know if he be a person excepted or not; But if there be special persons excepted by name, and no others excepted, but so many persons, there he need not to plead it; for the Court may discern J. D. from J. S. 8 E. 4. 7. vide 26 H. 8. 7. If a man commits Felony, and also Treason, and afterwards comes a gene­ral pardon for Felony, but Treason is excepted, and the party is ar­raigned for Felony: By Coke he shall have the benefit of the pardon; Popham, contrary, For he is disabled by the Treason: See Coke's Case, 13 Eliz. Plowd. 401. he pleaded to the Felony, the general par­don by Act of Parliament, and added, that neither himself, nor the said offence was excepted: And it was agreed by the whole Court, That in a Quo Warranto, it is not sufficient for the Defendant to say, That such a Subject hath lawfull interest to hold Leets without ma­king title to himself; for the Writ is, Quo Warranto he claims them. And afterwards Iudgment was given for the Queen.

XXXII. Woodward and Bugg's Case. Trin. 30 Eliz. In the King's-Bench.

WOodward libelled in the Spiritual Court against Bugg and Nelson for Tithes of certain Lands, called Christian-Hill; 1 Cro. 188. Owen Rep. 103. 2 Roll. 63. 3 Len. 257. The Defen­dant sued a Prohibition, and surmised, That one Prettiman was seised of the said Land, and in consideration of 5 l. by him paid to the said Par­son, it was agreed betwixt them, That the said Prettiman and his as­signs should be discharged of the Tithes of the said Lands during his life, And afterwards the said Prettiman leased the same to the Defen­dants, upon which a Prohibition was granted; and it was holden that the party need not to make proof thereof within six months, for it is not within the Statute, because a composition with the Parson: But now a consultation was granted in the same Cause, because the a­greement is shewed, but no need of it, the which cannot be any dis­charge; but if it had been for a time, i. Unica vice, it had been good, but contrary, being for life: Also there is not any express Grant of Tithes, but onely a Covenant, and agreement that he should be dis­charged, upon which he may have an Action, but no Prohibition: It was said on the other side, That although without Deed Tithes can­not pass in point of interest, yet by way of discharge they well may, Coke, It was holden betwixt Pendleton and Green, That upon such words of Covenant and agreement, the party should hold the Lands discharged of Tithes, which was denied: For if the Grantee of a Rent-charge will grant it to the Lands without Deed, it is not good; And there was of late a Case betwixt Westbed and Pepper, where it was agreed betwixt the Parson and one of his Parish, that for twen­ty shillings Rent per ann. the Parishioner should be discharged of Tithes for twenty years, if he lived so long; and it was holden that no Prohibition did lie thereupon, a Fortiori where the Estate is for life: Gawdy, In a Case of grant of Tithes for life, a Deed is requisite, but here it is but a Covenant for money: See 21 H. 6. 43. Wray, If it had been for years, it had been good, but here it is not any Con­tract, but onely a discharge for life, which cannot be during his life, without Deed; And afterwards the Record was read, which was Concordatum & agreatum fuit between the two parties, pro omnibus de­cimis, during the time that one should be Parson, and the other oc­cupier of the said Lands, that in consideration of 5 l. the said Pretti­man and his assigns, should hold the said Lands discharged of Tithes; Wray, The same is not a Contract, but Promise; for he doth not grant any Tithes, &c.

XXXIII. Devered and Ratcliff's Case. Pasch. 32 Eliz. In the King's-Bench.

IN Debt, the Plaintiff declared,1 Cro. 185. That he himself had brought an Action in London against one A. and had Iudgment to remove; and a Capias was awarded and issued forth, to take the said A. in execution upon which, Non est inventus was returned; upon which one of the sureties of A. being in prison in London, under the custody of the De­fendant, upon a Plaint against him, was detained in Prison for the said Debt so recovered against A. Secundum consuetudinem Civitatis prae­dict. prout per record. ejusdem Curiae apparet, and after the Defendant suf­fered the surety to escape; upon which there was a demurr; The matter was, If the said surety was a Prisoner in Law for the [Page 30] said Debt, as surety of A. for in the Declaration it is not expresly laid, that there was such a custom in London, ut supra, but onely, Se­cundum consuetudinem, &c. And secondly, there were two sureties of A. and the one of them onely is detained in execution: Also the cu­stome, as it is here laid, is not reasonable; For a Scire facias ought to issue out against the sureties, and they ought not to be taken or detai­ned in execution presently; For the condition of the Recognizance of sureties is, That they bring in the Defendant, if he be condemned, or to pray the Debt; and now by this custome, the party who is surety being taken, cannot plead the release of the Plaintiff, or the death of the Defendant in his discharge, as he might upon a Scire facias, which was agreed per Curiam; and adjudged accordingly.

XXXIV. Clark and Green's Case. Trin. 30 Eliz. In the King's-Bench.

AN Action upon the Case was brought for these words: He liveth by Charming, Sorcery and Witchcraft; It was moved, that the words were not actionable; for the words might be construed, as if the life of the party were preserved by that means. And it was hol­den, 30 Eliz. in the Case betwixt Smith and Morrice, that the word Witch is not actionable; And therefore, if a man be sued in the Spi­ritual Court for defamation, for calling one Witch, a Prohibition doth not lie. It hath been holden, that upon these words, He went to destroy a child in a woman's belly, were actionable, and yet it is not Felony, but a great discredit; and these words, Thou usest Witch­craft, are not actionable. And afterwards, in the principal Case, Iudgment was given, Quod nihil capiat per Billam. And by Gawdy, It might be that the Plaintiff had the forfeiture of those who are convic­ted of offences, and so liveth thereby.

XXXV. Harford and Gardiner's Case. Trin. 30 Eliz. In the King's-Bench.

IN an Action upon the Case, The Plaintiff declared, that the Defen­dant in consideration that the Father of the Plaintiff had imployed his service about the business of the Testator of the Defendant, to the great profit of the Testator; and in consideration of love and affection that the Testator bore to the Plaintiff, promised to give unto him 100 l. Curia, Love is not a consideration, upon which an Action can be groun­ded;3 Cro. 756. 1 Len. 94. the like of friendship: Wray, If the Plaintiff declares, That the Defendant in consideration that he was indebted unto the Plaintiff in divers summs of money, and promised to pay him 100 l. it is not good for the incertainty: Also the consideration here, was past and executed before the promise made, and nothing is done by the Son. And after­wards Iudgment was given against the Plaintiff.

XXXVI. Clark's Case. Mich. 31 Eliz. In the Exchequer.

Post. 89. BRidget Clark was indebted to Archdell by Obligation, and after­wards she delivered to one Andrews certain Hogsheads of Wine to satisfie the said Archdell de debito praedicto: afterwards the Obligation of [Page 31] Clark was assigned to the Queen for the Debt of Archdel: and if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the assignment? was the question.

Egerton, Solicitor General; The property is not altred; for the Bailor might have an Action of Account against Andrews before he hath delivered them over according to the Bailment; but if he hath deli­vered them over, the same is a good bar in Account: But if one be accountable to me upon a Bailment, and afterwards I require him to bail the goods over to A. the same is not in bar of the Account, but is a good Plea in discharge of Account before Auditors, for that is mat­ter after the Bailment, not upon the Bailment. If Goods be bailed to bail over upon a consideration precedent on the part of him to whom they ought to be bailed, the Bailor cannot countermand it, otherwise it is where it is voluntary and without consideration, but where it is in consideration of a Debt not countermandable; contrary, if to satisfie the Debt of another.

Manwood, chief Baron: Where the Debtor of the King is sufficient, there a Debt due to him ought not to be assigned to the King, but onely where the Debt is doubtfull, and that was the ancient course: but now at this day many seem and are accounted to be rich who are not, and therefore omnis ratio tentanda est to recover the Debts of the King. But as to the Case before us, Briget is Executrix to her Husband, who was indebted to Archdel, and she delivered the Goods to Andrews to sa­tisfie Archdel, and all that before the Assignment. And I conceive that the property of the said Goods is altered; for, as the case is here, An­drews was Surety for Clark, and had a Counter-Bond of Clark to save him harmless. If I borrow Money, and deliver Plate for the securi­ty of it, the general property is in me, yet the Bailee hath a special interest in it, till the Money is paid. If Goods be delivered to A. to pay to B. A. may sell them. An Executor hath Goods of the Testator, and he with his own Monies pays the Debts of the Testator, he shall retain the Goods, and the property is altered. And here in our Case, Andrews might by virtue of the Bailment sell the Goods, and with the Money pay the said Archdel. And afterwards Iudgment was given, That the property of the Goods was altered.

XXXVII. Norris Case. 31 Eliz. In the Exchequer.

IN an Information upon Intrusion against Norris and others concer­ning Folly John Park, the Defendants pleaded in Bar a descent: It was holden clearly by the Court, That against the Queen a Descent is no Plea, nor any Title against the Queen, because nullum tempus oc­currit Regi: neither shall Lachess be imputed to her: for the possessions of the Queen are large, and it is not reason that she should be bound or tyed to look to her affairs concerning her possessions, or to incur any damage in default thereof; for she is to intend and manage the pub­lick affairs of the Kingdom and State. It was also held by the Court, That in pleading of a Lease for life, or Feoffment, the party needs not to shew the place where the Lease or Feoffment was made.

Popham, the Queens Attorny, took Exception to the Bar to the In­formation, That whereas in the Information Title is made to the Queen, and concludes, prout patet per plurima Recorda & memoranda Scaccarii; the Defendants have not Traversed it by saying, Absque hoc quod habetur aliquod tale Recordum, To which it was said by Harris and Savil, Serjeants, That if a special Record had been alledged in cer­tainty, [Page 32] then we ought to have taken such Traverse; but here it be­ing in the generalty, we ought not to traverse at all. Manwood, Be­cause the Information is general, i. ut patet per plurima Recorda, so the Traverse ought to be also.

Another Exception was taken to the Bar, because in the Informa­tion the Title of the Queen is set forth: and the Defendants plead, That long before the Intrusion A. was seised in Fee, and enfeoffed B. who died seised, &c. where it might be that the Title of A. was mean betwixt the Title of the Queen and the Intrusion: whereas by Man­wood and Popham they ought to have said, Diu antequam the Queen was seised, A. was seised, &c. Savil and Harris, If which should so plead, we should confess that the Queen once had a Title, and that is not true, which Manwood denied, for by such Plea nothing is con­fessed. And it was said by some, That where in the Bar the Title of the Queen is confessed and avoided, there the Defendant shall say, Diu antequam the Queen had any thing, &c. otherwise not. And it was holden by all, That in such case, a Feoffment might be an induction unto a Traverse, but not a Descent. And by Manwood, it is a gene­ral Rule, as well in the case of a Subject, as in the case of the Queen, That nothing can be an Inducement to a Traverse, but such a thing as is Traversable; and here the Descent induceth the Traverse, be­ing not Traversable in this case. Also it was holden, That the place where the party dieth seised needs not to be shewed in pleading a Descent. And afterwards Manwood at another day, mutata opinione, conceived, That as to plurima Recorda, there needed no Traverse, al­though there were many presidents to the contrary: Diu ante transgres­sionem fieri sup. is a good Plea in Trespass in Case of a common person, not in the King's Case, diu ante Intrusionem, &c.

XXXVIII. Robinson and Robinson's Case. 31 Eliz. In the Exchequer Chamber.

IN the Case betwixt Robinson and Robinson in the Exchequer-Chamber by English Bill concerning the Manor of Draiton Basset; The Defen­dant pleaded in Bar a special Plea, to which the Plaintiff replyed; and afterwards the Defendant, when he should have Rejoyned, would have relinquished his special Plea, and pleaded the general Issue.

Manwood, In the Common Pleas, and King's Bench, and in the Court of Common Pleas in the Exchequer, before the Issue joyned, the Defen­dant might relinquish his special Plea, and plead the general Issue, for the Pleadings there are in paper until Issue be joyned, and therefore at any time before Issue joyned, the Plea might be with­drawn: But in the Chancery, Court of Requests, and here, all Pleas put in are in Parchment, and filed; and therefore it cannot be so done: and therefore here, if the Plea be once ingrossed into Parch­ment and filed, the Defendant cannot relinquish his Plea, and plead the general Issue; contrary, where the Plea is yet in Paper.

Gent, Baron, That if upon the Plea in Paper an Issue be offered with an Absque hoc, &c. the other party cannot relinquish it, although it be but in Paper. But afterwards the Barons asked the Clarks, what was their course in such cases? who answered, That if the Plea be in Parchment, and upon the File, it shall never afterwards be taken from off the File, but with the consent of the parties, and Order of the Court. And afterwards Manwood, with the assent of the rest of the Barons, gave a Rule, That the Defendant should rejoyn to the Replication, or otherwise a Nihil dicit to be entred.

XXXIX. The Lord Cromwel's Case. 31 Eliz. In the Exchequer.

IN the Case of the Lord Cromwel upon the Statute of 33 H. 8. for levying of the King's Debts: A Debt came to the Queen by Attainder of the Creditor, upon which an Extent issued a­gainst one of the Ter-tenants liable to the Debt, and not against all: It was moved, That upon a branch of the said Statute, all the Ter-tenants ought to be charged: But it was the Opinion of divers, that such a Debt which cometh to the King by Attain­der, is not within the said Statute; for although the Attainder is by a Iudgment, yet Debt by Iudgment it cannot properly be said, but where a Debt is recovered by Iudgment. And that was the Case of the Lord Norris, for a Debt due to Heron by the Lord Williams, which Heron was attainted.

XL. Machel and Dunton's Case. Hill. 29 Eliz. Rot. 631. in the Common Pleas.

IN Ejectione Firmae the Case was, That one Machel, 1 Crō. 288. Owen 54, 92. Poph. 8. Alderman of London, was seised and Leased for years, with clause of re-en­try for non payment of Rent; and in the Indenture of Lease there were divers Covenants on the parts of the Lessee: And afterwards the said Machel by his Will willed, That the Lessee should re­tain the Land-demised for thirty one years, reckoning the years of the first term not expired as parcel of the said term of thirty one years, yielding like Rent, and under such Covenants as the Lessee held the former Lease; and by the same Will devised the Inheritance over to a stranger. It was first moved, If here the Lessee for years had a new interest accrued to him by the Will? If it shall vest in him as an interest by it self, or that both Estates, as well the former Lease, as the Estate for years devised by the Will, should be united by way of Surrender? Another matter was because that the Devise is yielding such Rent, and under such Cove­nants, &c. Now because the meaning of the Devisor was, That the Devisee should hold over the Land for the term encreased as he held before; if here the Law shall give construction to this Devise as near the intention of the Devisor as it may be? and so con­strue the words of the Will to amount to a condition. But by the Opinion of the whole Court, the words of the Devise cannot make a Condition; for a Condition is a thing odious in Law, which shall not be created without sufficient words. Another mat­ter was moved, If the Fee-simple should pass by this Devise in point of Reversion, or Remainder? And by the better opinion of the Court, it shall pass in point of Reversion; for if it should be a Remainder, then the Rent which is reserved upon the Lease by the Will, shall not be incident to such Remainder, and therefore the Law shall qualifie it into a Fee-simple. Another matter was moved; Admitting that the words of the Devise, ut supra, are Condition, If here in this Case there be a Grantee of the Reversion intended with­in the Statute of 32 H. 8. As A. seised of Lands in Fee, deviseth them to B. for years, rendering Rent, with clause of Re-entry; and by the same Will deviseth the Reversion to another: If because that it was never in the Devisor a Reversion or a Condition? If [Page 34] the Devisee be within the said Statute to take advantage of it? And the Opinion of the whole Court was, That the Devisee of the Fee-simple should take advantage of this Condition.

XLI. Trin. 29 Eliz. In the Common-Pleas. Postea 210.

A Justicies issued forth to the Sheriff of H. for the Debt of 40l. and the same Plea was held and determined before the Vnder-She­riff in the absence of the Sheriff: It was moved by Puckering, Ser­jeant, If a Writ of Error or a false Iudgment lieth in this Case? And it was resolved by the Iustices, That the Sheriff himself in his person ought to hold Plea of a Justicies; and if he make a Precept or Deputation to another, it is meerly void: 34 H. 6. 48. See the Case there abridged, Fitz. Bar. 161. And a Justicies is not an Original Writ, but a Commission to the Sheriff to hold Plea above 40 s. And upon a Iudgment given upon a Justicies, a Writ of false Iudgment lieth, and not a Writ of Error. See 7 E. 4. 23. And it was the Opinion of the Lord Anderson, That the Iudg­ment given in the principal Case was utterly void, & coram non Judice.

XLII. The Queen and Jordan's Case. Trin. 29 Eliz. In the Exchequer.

11 Co. 89, 90, &c.AN Information was exhibited in the Exchequer for the Queen a­gainst the Executors of William Jordan, Surveyor of the Or­dinance, &c. and the Executors of John Bowland, Deputy of Ambrose Earl of Warwick, Master of the Ordinance, &c. In which was set forth for the Queen, That certain Powder, Pellets, and other fur­niture of War, came unto the hands of the said Jordan and Bow­land, in respect of their said Offices, to the value of 400000 l. and shewed how much came to each of them, and the special charge incertain, per quod onerabiles & computabiles Dominae Reginae devene­runt, nec tamen computum unquam inde reddiderunt, nec reddere volue­rant, sed bona & catalla praedicta ad usus suos proprios converterunt, in de­ceptionem dictae Dominae Reginae, &c. The Defendants pleaded Not guilty, upon which the Queen's Attorny did demur in Law, because the Defendants have answered onely to the Conversion: in which case although they have not converted, yet if the said Goods have come to the hands of their Testator, it is sufficient for the Queen, and the De­fendants are chargeable to the Queen for the same: And the Opinion of all the Barons was clear, that the Defendants ought to an­swer to the Charge, &c.

XLIII. Collet and the Bailiffs of Shrewsbury's Case. Pasc. 29 Eliz. In the Common Pleas.

IN a false Imprisonment, the Defendants justified by Prescription, scil. that they have used, if any person within their Town con­temptuose se gesserit against the Bailiffs of the said Town, or any Warden of any Trade there, to commit such a person to Prison for the space of a day or more at the least, at their discretions: And shewed farther. That the Plaintiff did mis-behave himself, tam factis quam verbis, against the Wardens of such a Mystery in the said [Page 35] Town, &c. And when the Bailiffs, super Querimoniam eis inde factam, sent for the Plaintiff, he would not come to them, but mis-beha­ved himself against them, tam dictis quam factis; for which they did commit him to Prison, &c. upon which there was a Demurrer. And afterwards Iudgment was given for the Plaintiff, because their Pre­scription is not good; for it is too large to imprison Subjects at their discretion: Also they have set forth the offence of the Plaintiff general­ly; i. Misbehaviour, tam factis quam dictis, without alledging any special Misdemeanor in certain.

XLIV. Pasch. 29 Eliz. In the Common-Pleas. 3 Leu. 79.

IT was holden by the whole Court, That where a man makes his Will in this manner, I will and bequeath my Land to A. and the name of the Devisor is not in the whole Will, yet the Devise is good, by averment of the name of the Devisor,1 Cro. 100. 1 Leo. 113. and by proof that it was his Will. And if one lying sick in extremis, having an intent to devise his Land, by word makes such a Devise, but doth not command the same to be put in writing, but another without his knowledge or command puts the same in writing in the life of the Devisor, it is a good Devise, for it is sufficient if the Devise be reduced in writing during the life of the Devisor.

XLV. Leonard Lovelace's Case. Trin. 27 Eliz. In the Common-Pleas.

IN Waste, the Case was,1 Anders. 132. More Rep. 371. Savile Rep. 75. 1 Cro. 40. That Lands were devised to the Father of the Defendant, and to his eldest Issue male, de corpore suo ex­eunti: And upon Demurrer it was adjudged, That by this Devise no Estate passed but an Estate for life unto the Father of the Defen­dant, the Remainder to his eldest Son for life, so as no Estate of Inheritance passed thereby; and therefore punishable for Waste.

XLVI. Cobb and Prior's Case. Postea 48. Hill. 33 Eliz. In the Common-Pleas.

THE Case was, A man deviseth his Lands to his Wife during the minority of his Son, upon condition, That she shall not doe Waste during the min [...]y of her said Son, and dieth: The Wife takes a Husband, a [...] dieth; the Husband commits Waste: It was holden by the whole Court, That the same is not any breach of the Condition.

XLV. Salway and Luson's Case. Mich. 30 and 31 Eliz. In the Common-Pleas.

1 Leon. 169. MAtthew Salway brought a Writ of Right against Luson, and the Writ was, Messuagium, & 200 acr. jampnor. & bruerae, and excep­tion was taken to the Writ, because that jampnor. & bruerae, were cou­pled together where they ought to be distinctly severed; and so many acr. jampnor. and so many acr. bruerae: although it was objected on the part of the Demandant in maintenance of the Writ, That in the Re­gister, fol. 2. the Writ of Right is, Redditu unius librae Mac. & Obed. i. Mace and Cloves together without distinction or severance. And it was said in a Writ of Right, we ought to follow the Register, and therefore a Writ of Right was abated, because the word Pomarium was put in the Writ, for in the Register, there is no such Writ, and the word Gardinum comprehends it, But in other Writs, as Writs of En­try, &c. it is otherwise: See the Case of the Lord Zouch, 11 Eliz. 353. In a Writ of Entry, Sur Disseisin mille acr. jampnor. & bruerae. But the exception was not allowed, for it may be, that jampnorum & bruerae lie so promiscuously, that they cannot be divided: And see 16 H. 7. 8. and 9. The respect which the Iustices there had to the Register, so as they changed their opinions, conformable to the Register: Another exception was taken to the Writ, because the Demandant demands duas partes custodiae, de Hay in the Forest of C. and the opinion of the whole Court was, that the Writ ought to be Officium custodiae duarum partium de Hay, and not duas partes custodiae, As Advocatio duarum partium Ecclesiae, not duas partes advocationis: another exception was, because the Writ was, duas partes, &c. in three to be divided, where­as it should be divisus, & non dividend. for dividendum is not in any Writ but a Writ of Partition. And by Windham, the parts of this Office are divided in right, Quod Curia Concessit, another exception was taken, because in the Writ, it is not set down in what Town the Forest of C. is, so as the Court doth not know from whence the Visne should come; for no Venire shall be de vicineto Forestae, as de vicineto Hundredi & Manerii; and that was holden to be a material exception: Another exception was taken, because a Writ of Right doth not lie of an Office; for at the Common Law, an Office did not lie of it, but now it doth by the Statute of West. 2. For it was not liberum te­nementum, but the party grieved was put to his Quod permittat. And of this opinion was the whole Court.

XLVIII. Johnson and Bellamy's Case. Hillar. 31 Eliz. In the Common-Pleas.

Postea 82, 83. IN Ejectione firmae, It was found by special Verdict, That Mr. Graunt was seised of the Lands, &c. and by his Will devised the same to Joan his Wife, for life; and farther he willed, That when Richard his brother shall come to the age of 25 years, he should have the Lands to him and the heirs of his body lawfully begotten. Mr. Graunt died, ha­ving issue of his body, who is his heir, Richard, before he had attained the age of 25 years, levied a Fine of the said Lands, with Proclama­tions in the life, and during the seisin of Joan, to A. Sic ut partes ad fi­nem nihil habuerunt: and if this Fine should bind the Estate-tail was the Question; And the Iustices cited the case of the Lord Zouch, which was adjudged, M. 29 and 30 Eliz. Tenant in tail discontinues to E. and af­terwards [Page 37] levieth a Fine to B. although the partes ad finem nihil habue­runt, yet the Fine shall bind the entail: But the Serjeants at Bar ar­gued, That there is a great difference betwixt the Case cited, and the Case at Bar; for in that Case, the said Fine was pleaded in Bar, but here the Fine is not pleaded, but found by special Verdict; To which it was said by the Court, that the same was not any difference; For the Fine by the Statute is not any matter of Estoppel, or conclusi­on; but by the Statute doth bind and extinguish the Estate-tail, and the right of it; and Fines are as effectual to bind the right of the entail when they are found by especial Verdict, as when they are pleaded in Bar: And by Periam, Collateral Warranty found by Verdict, is of as great force, as if it were pleaded in Bar, And afterwards Iudg­ment was given, That the Estate-tail by the Fine, was utterly de­stroyed and extinct.

XLIX. Jay's Case. Trin. 29 Eliz. In the Common-Pleas.

JAY brought an Action of Debt before the Mayor of Shrewsbury, &c. and declared upon an Obligation which was upon condition to pay money at London, and issue was there joined upon the payment. And it was moved how this issue should be tried, viz. 4 Inst. 205. If it may be removed by Certiorare into the Chancery, and thence by Mittimus into the Common-Pleas, and from thence sent into London to be tried, and when it is tried, to be remanded back to Shrewsbury to have Iudgment: See 21 H. 7. 33. Vpon voucher in the County Palatine of Lancaster, the Law is such in matters real; for real actions cannot be sued but in the said County Palatine, but in personal matters it is otherwise, for such ac­tions may be sued elsewhere, at the pleasure of the party; And there­unto agreed the whole Court: and although such matters have been removed before, yet the same were without motion to the Court, or opposition of the other party, and so not to be accounted Precedents: See 3 H. 4. 46. abridg'd by Brook, Cause de remover Plea 41. Where he saith, That a Foreign Plea pleaded in London in Debt, goes to the jurisdiction; but upon a Foreign Voucher in a Plea real, the Plea shall be removed in Bank by the Statute to try the Warranty, and afterward shall be remanded.

L. Sands and Scagnard's Case. Trin. 29 Eliz. In the Common Pleas.

IN an Action upon the Case, The Plaintiff declared, that he was pos­sessed of certain Chattels which came to the Defendant by Trover. The Defendant pleaded, That heretofore the Plaintiff brought Debt against the now Defendant, and demanded certain moneys, and decla­red, that the Defendant bought of him the same goods, (whereof the Action is now brought) for the summ then in demand, to which the then Defendant waged his Law and had his Law; by which Nihil Capiat per breve, &c. was entred. And demanded Iudgment, if, &c. And by Wind­ham and Rodes, Iustices, The same is no bar in this Action, for the wa­ging of the Law, and the doing of it, utterly disproves the Contract sup­posed by the Declaration in the said Action of Debt, and then the Plain­tiff is not bound by the supposal of it, but is at large to bring this Acti­on; and so Iudgment was given for the Plaintiff.

LI. Spittle and Davie's Case. Trin. 29 Eliz. In the Common-Pleas.

Owen Rep. 8, 55.IN a Replevin, the Case was, That one Turk was seised of certain Lands in Fee, and by his Will devised parcell of his said Lands, to his eldest Son in tail, and the residue of his Lands to his younger Son in Fee, Provided, that neither of my said Sons shall sell or make Leases of the Lands given or bequeathed unto them by this my Will, or doe any Act with any of the said Lands, to the hindrance of their children or mine, by any devise or means, before they come to the age of 30 years; and if any of my Sons doe so, then my other Son shall have the portion of my Lands so devised to his Brother, the el­dest Son before his age of 30 years leased the Lands to him devised, ut supra, for years, against the intent of the said Proviso. The youn­ger Son entred,2 Cro. 398. and he leased the same Land for years before his age of 30 years, Vpon which the eldest Son did re-enter, and the opini­on of the Court was, that here is a Limitation, and not a Conditi­on; and here the re-entry of the eldest Son was holden unlawfull; for this Proviso did not extend but to the immediate Estate devised, expresly to them, and not to any new Estate, which did arise upon the limitation; and when the younger Son enters upon the eldest Son by the said Limitation, he shall hold his Estate, discharged of the Provi­so, or any limitation contained in it.

LII. Martin Van Henbeck's Case. Trin. 30 Eliz. In the Exchequer.

AN Information was exhibited in the Exchequer, against Martin Van Henbeck, Merchant-stranger, upon the Statute of 18 H. 6. Cap. 17. concerning the gaging of vessels of Wine, and shewed, That the Defendant had sold to such a one, so many pipes of Wine, and that none of them did contain as they ought, 126. gallons; and although they were so defective, yet the Defendant had not defalked the price, &c. according to the want of measure, for which he had forfeited to the Queen, all the value of all the Wine so defective. Exception was ta­ken to the Information, because there is not set down how much in e­very pipe was wanting, as one or two gallons, &c. To as a ratable defalcation might be made according to the proportion of the want of measure; But if the Informer had set forth in his Information, that no defalcation was at all, such general allegation of want of mea­sure, without other certainty, had been good. And the Case was cited, 32 E. 4. 40. Lysle's Case, Where the plea wants certainty; or where he pleads that he was ready to shew to the Council of the Plain­tiff his discharge of an Annuity, &c. and doth not shew what manner of discharge, as release, &c. So 2 H. 7. 6. in Dower, against the heir, who pleads in Bar, Detainment of Charters, without shewing what Charters in certain: also there is time enough of defalcation, when the time of payment comes, and not upon the Contract; and it is not shewed, that the Vendee had paid for the Wine. Egerton, So­licitor, contrary, When the thing demanded is to be recorded, there it ought to be certainly shewed, but contrary, where it goeth onely to the point of Conveyance of the Office; and here, the thing to be a­bated is not in question; for be it more or less, the Defendant is to lose the value of all the Wine, and that which is to be defalked, is but [Page 39] an Induction, or Conveyance tending to the payment of the forfeiture: As in Partridge's Case, 7 E. 6. Plow. 85. Whereupon the Statute of 32 H. 8. Maintenance, The Plaintiff charges the Defendant with a Lease for years, made to a stranger, without shewing for what term certain, and yet it was there holden well enough, notwithstanding that the Lease was not to be forfeited, but was a Conveyance to the point of forfeiture; i. the value of the Lands 38 Ass. 12. A Steward of a Leet was presented, for that he had suffered many Brewers and Bakers to ba [...] and brew, contrary to the Assise, pro redemptione in­de capiend. without shewing in certain, what Bakers, or of whom he had taken redemption; but notwithstanding that, the Defendant took issue upon the matter, &c. And it is impossible for the Informer, to know the quantity of the full measure of every pipe of Wine, which doth not belong to him, but to another, and if the Law should compel him to this impossibility, the Statute should be of none effect. 3. E. 3. 363. In Nusance for drowning of his Lands, exception was taken, because it was not set forth what quantity of land, but it was not allowed; for it is impossible to know, to what depth the land was drowned, and how much of the land was drowned: So here the Informer cannot know eve­ry spoonfull, &c. And he said, that the defalcation ought to be at the time of the Contract, or within convenient time after. Coke, contrary, Here is a great incertainty, which is not tolerable in an Information, for the quantity of the want is uncertain, and so likewise the quantity of the de­falcation, for the want must be fourty, twenty, ten, five, or one gallon, pottle, quart, or pint, and in such Information upon penal Laws, the matter of it ought to be certainly shewed. Oportet ut res certa deducatur in judicium, so as the Court may judge thereof: as where an Informa­tion is exhibited upon the Statute of Vsury, That Statute is, that if any take above 10l. for the loan of 100l. for one year, he shall forfeit the whole value of the principal, here there ought to be an usurious Contract for above 10l. in the hundred; and also there ought to be a taking; and it is impossible to discover the subtilty of an Vsurer: But if Informa­tion be exhibited, here against an Vsurer, and chargeth that he took more then 10l. in the hundred, without shewing how much, such Infor­mation is utterly insufficient; for the Informer ought to set forth the quantity of the interest received, and yet the same is not to be reco­vered: Also if the Informer setteth for an usurious Contract, Cum quo­dam homine ignoto, it is insufficient, 5 H. 7. 17, 18. If an Information be exhibited upon the Statute of Liveries, as well the giver as the ta­ker, ought to be certainly shewed, &c. Another exception was taken, because the words of the Information are, Quae quidem dolia, vel eorum aliquod, &c. did lack, &c. But by Manwood, the same is well enough, Wherefore Coke did not speak to it; And he said, that the time of the defalcation of the price is upon the payment, and not before. If J. S. lend to one 100l. for a year, and upon the loan, contract with me, to give me 20l. for the loan of the same for one year, If now when I pay him he taketh but 10l. he shall not be punished for the Contract, but perhaps the Bond shall be void. And upon the Statute of 5 E. 6. of Ingressors, If the Information be, that the Defendant hath bought Corn, &c. it is not sufficient; for the words of the Statute are, Get into his hands, &c. Owen Serjeant to the same purpose: He hath not alledged, Quantum, vel in quanto defecit, If there had been but a Pint, it had been sufficient; The Information goes farther, Non defalcavit tantum de pretio, quantum defecit, and so tantum, & quantum, is incer­tainly laid; 22 H. 6. If A. be bound to B. to make him a sufficient Estate in such Lands, in an Action brought upon such an Obligation, it is no plea to say, That he hath made unto him a sufficient Estate, &c. but he ought to shew what Estate, So 7 E. 4. If one be bound to repair such a house, It is not sufficient to say, that he hath repaired it, but [Page 40] he ought to shew, in hoc, vel in illo: Egerton, The abatement shall be upon the Contract. And afterwards Iudgment was given against the Informer, because it is not shewed in the Information in how many Vessels there was want; but if he had alledged but the want of one Pint, it had been good for the value of all the Wine: And by Manwood that might have been well enough known by the Gauging how much every Vessel wanted.

LIII. Green and Everard's Case. Mich. 30 Eliz. In the Exchequer.

IN Ejectione Firmae against Everard by Green, the parties were at issue, and the said Green challenged one of the Iurors, and assigned for cause, because the said Iuror held Land under the same Title as the Defendant did: To prove which one Lancelot Chandler was produced as a Witness for the said Green, who deposed upon the said Challenge the same, for which the Iuror challenged was drawn, and so there was no Inquest: and so the Plaintiff was delayed of his Trial: whereupon he sued the said Lancelot, tam pro Domina Regina quam pro seipso: and it was found for the Plaintiff. And now Exception in Arrest of Iudg­ment was put into the Court engrossed in Parchment; viz. Ad Judi­cium pro Domina Regina, & praefat. Querente, Curia procedere non debet, quia manifeste apparet, per informat. dict. Querent. quod ipse non fuit pars gravata, quod per calumniam in dicta informatione specificat. ac per jura­ment. dict. Lancelot super inde fact. dictus Querens, non fuit damnificat. sed in calumnia praedict. & jurament. praedict. super inde factum tendebat in com­modum ipsius Everardi, propter quod ipse idem Everardus tempore calumniae praedict. existens tenens Tenementorum praedictor. per dict. declarat. specifi­cator. eadem Tenementa ratione calumniae praedict. ac praedict. jurament. tene­bat & proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset. See the Statute of 5 Eliz. against Perjury, the words are, grieved, letted, or molested, &c.

LIV. George ap Rice's Case. Mich. 30 Eliz. In the King's-Bench.

George ap Rice, Tenant in Tail after possibility of Issue extinct, as­signed his Estate to one A. against whom he in the Reversion brought a Quid juris clamat, and it was adjudged that he should Attorn; for although Tenant in Tail after possibility of Issue extinct, him­self is not compellable to attorn, yet his Assignee shall attorn; for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue, which cannot be the Assignee, for by the Assignment the privity and the privilege are destroyed.1 Len. 290.291. And where the Defendant, in a Quid juris clamat, is adjudged to attorn, Distress infinite shall issue forth against him, to compell him to attorn; and if he, when he appears, doth refuse to attorn, he shall be imprisoned until he doth attorn: And this Iudgment, That the Assignee of Tenant in Tail after possibility should attorn, being given in a Court in Wales, was afterwards affirmed in a Writ of Error brought upon it in the King's Bench.

LV. Lucas and Picrost's Case. 30 Eliz. In the Common Pleas.

THE Case was,3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land; and as to one Acre, the Defendant pleaded a Plea tryable in a Foreign County, upon which the Issue was adjourned into the Common Pleas, and from thence into the Foreign County, where by Nisi prius it was found for the Plaintiff: And now Snag, Serjeant, prayed Iudgment for the Plain­tiff, and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict, they there may give Iudgment But the whole Court is of contrary Opinion; for here is ano­ther Acre, the Title of which is to be tryed before the Iustices of the Assise, before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found: And the Assise is proper­ly depending before the Iustices of the Assise, before whom the Plain­tiff may discontinue his Assise: And it is not like unto the Case of 6 Ass. 4. 8 Ass. 15. where in an Assise, a Release dated in a Foreign County is pleaded, which was denyed, for which cause the Assise was adjourned in Bank, and there found by Inquest not the Deed of the Plaintiff: now the Plaintiff, if he will release his damages, shall have Iudgment of the Freehold presently: But in our Case,Postea. 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed, which the Plaintiff cannot release as he may the damages: And therefore the Court awarded. That the Verdict should be sent back to the Iustices of the Assise.

LVI. Povye's Case. Mich. 30 Eliz. In communi Banco.

POvy, an Attorny of the King's Bench, brought an Action of Trespass there against the Warden of the Fleet, who came into the Common Pleas and demanded the Advice of the Court, because he is an Officer of this Court, and therefore ought not to be impleaded elsewhere: But it was said by the Court,3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench, as well as the Defendant hath here, this equality of Privilege shall render the parties at li­berty; and he shall have the benefit of the Privilege who first be­gins Suit: and so the Warden of the Fleet was advised to answer.

LVII. Inchley and Robinson's Case. Hill. 29 Eliz. In the Common Pleas.

IN an Ejectione Firmae, it was found by special Verdict,Owen Rep. 88. 3 Len. 165, That King E. 6. was seised of the Manor and hundred of Fremmington, and by his Letters Patents granted the same to Barnard in Fee, rendering 130l. per annum, and also to hold by Homage and Fealty; and after­wards Queen Mary reciting the said Grant by E. 6. and the Reserva­tion upon it granted to Gartrude, Marchioness of Exeter, the Manor of Fremmington, and the said Rents and Services; and also the Manor of Camfield, and other Lands and tenements, to be holden by the twentieth part of a Knight's Fee: Gertrude so seised, devised to [Page 42] the Lord Montjoy the Manor of Fremmington, the Manor of Camfield, &c. and also bequeathed divers sums of money to be levied of the pre­misses: and they farther found, That the said Rent of 230l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor. The Question was, If by those words of the Devise, Of the Manor of Fremmington, the Rent and Services of the Manor did pass? i. the Rent and the Homage and the Fealty reserved, the Grant of King E. 6. of the Manor and Hundred of Fremmington? and if the said Rent and Services are issuing out of the Manor? for if the Rent doth not pass, then the same is descended to the Heir of the Marchio­ness; and then being found the full and third part of the value, the King and the Heir is fully answered and satisfied, and then the Inheri­tance of the residue discharged, and settled in the Devisee: And if the Rent doth not pass, then is the Heir of the Marchioness entitled by the Statute to a third part of the whole.

Shuttleworth, Serjeant, If the Marquess had devised by express words the said Rent and Services, they could not have passed: for as to the Services, they are entire things, as Homage and Fealty, and they cannot pass by Devise in case where Partition is to follow, for such things cannot receive any Partition or Division, therefore they are not divisible; for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances, in three parts to be divided; i. as Catalla Felonum cannot be devised for the reason aforesaid; which was granted by the whole Court. And as to the Devise, he argued much upon the grounds of Devises, and put a ground put by Fineax, 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import, or as it may be intended or implyed by the words, what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden, Plow. 342. So he said in this case, because the intent of the Devisor doth not appear upon the words of the Will, that this Rent should pass; it shall not pass, for there is not any mention made of any Rent in all the Will.

Fenner contrary, and he argued much upon the favorable construction which the Law gives to Wills, 14 H. 3. Reversion for Remainder, & è contr. 17 E. 3. 8. A man may make a Feoffment of a Manor by the name of a Knights Fee, à fortiori in case of the Devise: and in our case the Marquiss conceived, That the Rent and Services reserved out of the Manor of Fremmington was the Manor of Fremmington; and the Law shall give strength to that intention.

Walmsly conceived, That the Rent did not pass by the name of Manor, &c. for this Rent, nec in rei veritate, nor in reputation, was ever taken for a Manor: Also the words, Of the Manor and Hundred of Fremmington, are put amongst others which are Manors in truth; by which it seemeth, That the Devisor did not intend to pass but one Manor, and no other Hereditaments, by that Manor of Frem­mington. It is a Rule in Law, That in the construction of a Will a thing implyed shall not controul a thing expressed: But here, if by implication the Rent shall pass, then the Manor of Camfield shall not pass, which it was the intent of the Devisor to pass, and that by express words, See 16 Elizab. Dyer 330. Clatche's Case: and see 16 Eliz. Dyer 333. Chapman's Case. But in our Case here, there are not any sufficient words to warrant any implication; for neither in truth nor in reputation was it taken to be a Manor: 22 H. 6. 2. Green Acre might pass by the name of a Manor, although it were but one Acre of Land, because known by the name of a Manor. See accordingly 22 H. 6. 39. And see, where, before the Statute of Vses, a man had Recoverors to his use, and he wills by his Will, That his Trustees should sell his Lands, they may sell. And he said, That if a man seised of a [Page 43] Manor parcell in Demesne, and parcell in service, and he grants the Demesnes to one and his Heirs, and afterwards deviseth his Manor, peradventure the services shall pass; but this Rent hath no resem­blance to a Manor.

Gawdy, This Rent shall pass by the name aforesaid. Favourable construction is to be always given to Wills, according to the intent of the Devisor, and no part of a Will shall be holden void, if by any means it may take effect; then here it appeareth, that his meaning was, that upon these words every thing should pass to the Devisee con­cerning the said Manor of Fremmington; for otherwise, the words of the Manor of Fremmington should be void and frivolous, which shall not be in a Will, if any reasonable construction can be; for it is found ex­presly by the Iury, That neither at the time of the Will made, nor at the time of the death of the Devisor, the said Devisor had any thing in the said Manor of Fremmington, but onely the said Rent of one hundred and thirty pounds. And it may well be taken that the De­visor being ignorant what thing a Manor is, though that the Rent was a Manor, because that he had Rents and services out of the Ma­nor. For in construction of Wills, the words shall serve the intent of the party; and therefore if a man deviseth, That his Lands shall be sold for the payment of his debts, his Executors shall sell them, for the intent of the Testator naming the Vendors, is sufficient: And see Plowden, 20 Eliz. 5. 24. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Heirs in Fee, whereas then there was no Feoffees to his use; the same was holden a good Devise of the Lands of A. and the Iudges conceived, that the Devisor was ignorant of the operation of the Statute in such case, and therefore his ignorance was supplied: See Br. Devises, 44. 29 H. 8. A. had Feoffees to his use, and afterwards, after the Statute of 27 H. 8. willed that his Feoffees should make an Estate to B. and his Heirs, it was holden by Baldwin, Shelley and Mountague, Iustices, that it was a good Devise: See 26 H. 6. Feoff. 12. A Carve of Lands may pass by the name of a Manor, Ergo, à multo fortiori, Rent, for Rents and Services have more nearness, and do more resemble a Manor than a Carve of Lands; and it cannot be intended, that the mea­ning of the Testator was to grant the Manor it self, in which she had nothing, especially by her Will; for covin, collusion, or indirect dea­ling, shall not be presumed in a Will: Also the Marchioness, for four years together before her death, had the Rent and Services of the said Manor, and she well knew, that she had not any other thing in the said Manor, but the said Rent and Services; and therefore it shall be in­tended, that that was her Manor of Fremmington, A. seised of a Capi­tal Messuage, and great Demesnes lying to it, leaseth the same for years, rendring Rent, and afterward deviseth to another all his Farm, lying in such a place, It was rated in that case, that by that Devise, the Rent and the Reversion should pass: See the Case be­twixt Worselie and Adams, Plowd. 1 Eliz. 195. by Anthony Brown and Dyer. Periam, Iustice, was of opinion, that this Rent might be di­vided well enough; But by Anderson, It is but Rent-seck; but Periam said, it was a Rent distrainable of common Right, but all of them agreed, that the Rent might be divided, but there should not be two Tenures. And the Lord Montjoy being advised that this Rent did not pass by the Grant, but descended to the Heir, being the full part of the whole, entred into all the residue of the Lands, and made a Lease of the Manor of Camfield unto the Plaintiff, upon which entry, the E­jectione firmae was brought, and afterwards the Plaintiff seeing the o­pinion of the Court to be against him, and for the Devisee of the Rent by the name aforesaid, did afterward discontinue his suit, &c.

LVIII. Costard and Wingfield's Case. Trin. 30 Eliz. Intrat. T. 28 Eliz. Rot. 507. In the Common-Pleas.

6 Co. 60.IN a Replevin, the Defendant did avow for damage-feasant, by the commandment of his Master, the L. Cromwel; The Plaintiff by way of Replication did justifie the putting in of his cattel into the Land, where, &c. by reason that the Town of N. is an ancient Town, and that it had been used time out of mind, &c. That every Inhabitant of the said Town, had had common for all manner of cattel levant and couchant within the said Town, and so justified. The Defendant said, that the house in which the Plaintiff did inhabit in the said Town, and by reason of residency in which House he claimed common, was a new house erected within 30 years; and that before that time, there had not been any house there, upon which the Plaintiff did demurr: Shuttle­worth, Serjeant, argued for the Plaintiff, That he should have com­mon there by reason of resiancy in the said new house; and he said, that the Resiancy is the cause, and not the Land, nor the person thereof; and thereupon he put the Case of 15 E. 4. 29. And he agreed the Case, That if the Lord doth improve part of the common, that he shall not have common in the residue of the Land, for the Lands improved, because, That he cannot prescribe for that which is improved, as the Book is, in 5 Ass. But here in the principal Case he doth not prescribe in any per­son certain, or in, or for any new thing; but he sets forth that the use of the Town hath always been, that the inhabitants should have common there, And this common is not common appendent, or appertinent, but common in gross, See Needham, 37 H. 6. 34. b. And he said, That if the house of a Freeholder, which hath used to have such common, doth fall down, and he erecteth a new house in another place of the Land, that he shall have common to that new erected house as he had before? And he took a difference betwixt the case of Estovers, where a new Chim­ney is erected, and this Case, and he stood much upon the manner of the prescription. Gawdy, Serjeant, contrary, And he took exception to the prescription; For he said, that it is said therein; That it is Anti­qua Villa, but he doth not say, that it hath been so time out of mind, &c. and so it ought to be said, as the Book is in 15 E. 4. 29. a. And then, if it be not an ancient Town time out of mind, the parties cannot pre­scribe as Inhabitants of the said Town, to have common time out of mind, &c. And he said, That if such a prescription as is said in this Case be good in Law, viz. That every one who erected a new house within the said Town, should have common to his said new house, the same should be prejudicial to the ancient Town, and to the utter over­throw and manifest impairing of the common there; and it might so happen, that one who had but little Lands in the said Town, might erect twenty new houses there, and so an infinite number of houses might be newly erected there; and there should be common allowed to every Inhabitant within the said new erected houses, which should be incon­venient and unreasonable. Anderson, chief Iustice, He who erects a new house, cannot prescribe in the common, for then a prescription might begin at this day, which cannot be; and he insisted much upon the general loss which should happen to the ancient Tenants, if such a prescription for new erections should be good. Periam, If it should be Law, That he should have common in this Case, That all the benefit which the Statute gives to the Lord for improvement, should be taken away by such new edifications and erection of new houses, which were not reasonable; And such was the opinion of the other Iustices, and [Page 45] therefore they all agreed, that in the principal Case, the Plaintiff should not have common to this new erected house; but the entry of the Iudgment was respited untill the Court had seen the Record, and af­ter they had seen and considered upon the Record, Anderson and Peri­am were of opinion as before: But Windham did not encline to the con­trary; but they all agreed, That he who set up again a new Chim­ney where an old one was before, should have Estovers to the said new Chimney: and so if he build a new house upon the foundation of an old house, That he should have common to his said house new erected: So if a house falleth down, and the Tenant or Inhabitant sets up a new house in the same place: Also if a man hath a Mill, and a Water­course to it time out of mind, which he hath used time out of mind to cleanse, if the Mill falleth, and he erecteth a new Mill there, he shall have the Watercourse, and liberty to cleanse it, as it had before, and afterwards the same Term, Iudgment was given for the Defendant, to which Windham, Iustice, agreed.

LIX. Rous and Artois Case. Hill. 29 Eliz. In the King's-Bench.

THE Case was large, but the points in this Case were but two:Owen Rep. 27. 4 Co. 24. The first was, If Tenant per auter vye, after the death of Cestuy que vye holdeth over. If he be a Disseisor or not: The second point was, If Tenant at will, or at sufferance, be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders: For the first point; It was agreed by Godfrey, and he held, that the principal Case was, That if Tenant pur auter vye holdeth over the life of Cestuy que vye, that he thereby gaineth the Fee; But he granted the Cases, That where a man holdeth at the will of another, that after the Estate de­termined, if he holdeth over, he hath not thereby gained fee, for he is Tenant at sufferance; and as Littleton saith in his Chapter of Relea­ses, 108. Tenant at sufferance, is where a man of his own head occu­pieth the Lands and Tenements at the will of him who hath the Free­hold; and such an occupier claims nothing but at will; But he said, That in the principal Case, he otherwise claimed than at the will of the Lessor; for that it appeareth, that he hath granted Copy: and he said, that this difference doth give answer to the Case which is, t. H. 8. br. t. per Copy 18. where it is said for Law, That none is Tenant at suffe­rance, but he who first enters by authority of Law: As if a man makes a Lease for years, or for the life of another, and he holdeth the Lands after his term expired, or after the death of Cestuy que vye; If he claim nothing but at the will of him who hath the Freehold; he is a Tenant at sufferance. But if he holdeth in the Lands against the will of his Les­sor, then he is a Disseisor; and so if he do act after such continuance of possession, contrary to the will of his Lessor, he is a Disseisor, 10 E. 4. If an Infant maketh a Lease at will, and the Lessor dieth, and the Les­see continueth in possession, and claims Fee, the Heir shall have Mort­dancester, 18 E. 4. If Cestuy que vye dieth, and the Tenant hold in, and was impleaded, The Lessor shall not be received, and he conceived the reason of the Case to be, because that the reversion was not in him; but that the Fee was gained and rested in the other, 22 E. 4. 39. g. by Hussey. If a Termor holdeth over his term, there an Estate in Fee is confessed to be in him, because he holdeth the possession of the Lands by wrong; but there is a Quaere made of it, if he be a Disseisor or not, but I conceive that he is, for Trespass doth not lie against him, before the Lessor hath made his entry; and therefore, if the Lessee doth continue in the possession of the Lands by reason of the first entry; that is the [Page 46] reason, as I conceive, that the Writ of Entre ad terminum qui praeteriit, lieth against such a Termor, who holds so over his Term; and that Writ is a Praecipe quod reddat, which doth not lie but against a Tenant of the Freehold. And such is the opinion of Tilney, 7 H. 4. 43. That if the Guardian holds in the Lands at the full age of the Heir; or if the Tenant for years after the term expired, holdeth over the Lands, their Estates shall be adjudged a Fee. And in our Case here, he doth not claim to hold in at the will of the Lessor; for he hath done an act contrary to the will of the Lessor; For he being Lord of the Manor, in manner as afore­said,3 Cro. 302. hath granted Estates by Copy; and it is holden, 12 E. 4. 12. by all the Iustices, That if Tenant at will, or Tenant at sufferance at will, makes a Lease for years, that the same is a Disseisin to the Lessor, and the Tenant at will thereby gains the Freehold: and the reason of the Book seems to be, because he claims to hold a greater Estate than of right belongs unto him. The second point was, If Tenant at suffe­rance might grant Copies, and he said, that he might, and such grant should be good, because he is in by lawfull means, and an Assise doth not lie against him, as in the Book of 22 E. 4. 38. before, and he is Dominus pro tempore. And this Case is not like to the Cases, where Copies are made by Abators or Disseisors; for the Law doth adjudge, that Copies made or granted by them are void, and his act here as a Tenant at suffe­rance of making and granting of the Copies stands with the custome of the Manor which warrants them; as in the Case of Grisbrook and Fox, if an Administrator made by the Ordinary sells the goods of the Inte­state; and with the money thereof arising, payeth the debts of the Inte­state, and afterwards he who was made Executor proves the Will, he shall not avoid such sale of the goods, because he hath made it according to Law, and hath done no more than an Executor is compelled to doe: So 12 H. 7. 25. b. If a Baily cut down trees to repair an ancient pail, the same is good: So 4 H. 7. 14. b. If he payeth a Quit Rent, it is good. And note, 4 Mariae Br. Tenant by Copy, 27. That the Lessee of a Ma­nor, in which there are Copyholds, after the death of the Copyholder, may admit the Heir of the Copyholder to the Land; and so he may doe, who hath but an Estate in the Manor durante bene placito: and yet it seems by the Book, that such a Tenant of the Manor, cannot reserve and lessen Rent, but he ought to reserve the ancient Rent, or more. Coke contrary; And first he said, that he who holdeth over the life of the Cestuy que use, doth not gain any Fee where he comes in first by right, for that he is but Tenant at sufferance, 35 H. 8. Dyer 57. in the Case of the Lord Zouch, Cestuy que use for life, the remainder over in tail makes Lease for life of the Lessee, he dieth, the Lessee continueth his Estate, and the opinion of the Iustices of the Common-Pleas, and of others was, that he is but a Tenant at sufferance, for the Lease was not any discontinuance of the Remainder, because he had autho­rity by the Statute of Rich. 3. to make a Lease, and that is intended of such Estate which he might lawfully doe; and this is our Case, and so it is adjudged already. As to the second point, I grant, that Te­nant for years, or at will, or at sufferance is Dominus pro tempore, but there is a difference as unto granting of Copies by them: For it was adjudged 25 Eliz. that they might grant Copies which are to be granted upon surrenders, made by Copyholders: As if a Copyholder doth sur­render to the use of another, they may accept of such a surrender, and grant the Lands by Copy to him to whose use the surrender is made; But if a Copyholder dieth, they cannot grant voluntary Copies de novo. And he said that Popham, who argued the said Case in 25 Eliz. That this difference was agreed, and so adjudged in one Sleer's Case. And so 17 El. in the Case of one Stowley, where the Case was, That a Manor was de­vised to one, and the Devisee entred and granted Copies, and after­wards it was found that the Devise was void, and it was there holden [Page 47] that Copies made by such Devisee upon surrenders, were good, and were not to be avoided; but contrary of Copies made after the death of Tenants upon voluntary grants. I grant, that when Cestuy que use dieth, the Estate for life is utterly void and gone; and therefore he is in by wrong, but he cannot thereby gain so great an Estate as a Disseisor, because he came in at the first by right. Atkinson put a diffe­rence betwixt Tenant at will, and Tenant at sufferance; for Tenant at will shall have aid, but contrary, of Tenant at sufferance, as the Book is, 11 H. 4. a Release to Tenant at will is good, contrary to Tenant at sufferance; when after the death of Cestuy que use he holdeth over, he hath some interest, scil. to this purpose, that he shall not be a wrong doer, for he is neither Abator nor Desseisor, therefore not a wrong doer, and then if he be in by a right, or rightfully, he is then Do­minus pro tempore, and then the grants made by him by Copy are good. 7 H. 7. 3. Tenant at sufferance, was to justifie the distraining the cat­tel of another damage feasant. Coke, True, it is, the beasts of a stran­ger, but not of the Tenant of the freehold: Gawdy Iustice, The Lessor cannot have Trespass against him before entry; not because he is not a wrong doer, but because it is his folly that he doth not enter: All the Iustices did hold with the Plaintiff against the Copy granted: and that he which granted it was but Tenant at sufferance, and not a Desseisor, nor had gained the Fee, because he came in first by right: And therefore they awarded, that if the Defendant did not shew bet­ter cause, that Iudgment should be entred for the Plaintiff.

LX. Trin. 29 Eliz. In the Exchequer.

IN the Exchequer Chamber, there was this Case: An Indenture Tri­partite, was betwixt three, A. was one of them, and he covenanted with them, Et quolibet eorum. And the Covenant was, that the Land which he had aliened to one of them, was discharged of all incum­brances; and he to whom the limitation of the Lands was, but a Writ of Covenant sole. Buckley argued, that it was well brought, and cited the Case of 6 E. 2. Br. Covenant 49. where one covenanted with twenty, to repair the Sea-banks, and he did not repair against two of them, and they two brought a Writ of Covenant solement, and the Writ hol­den maintainable, because they onely were damnified, and so he said in this Case: But notwithstanding this, it was afterwards,5 Co. 18. viz. M. 30 Eliz. adjudged by the whole Court, that the Covenant did not lie by one of them onely, but ought to be brought by them both.

LXI. Carter's Case. Mich. 33 Eliz. In the Common Pleas.

A Being seised of the Manor of Staple in Odiham, 1 Cro. 208. Owen Rep. 84. 8 Co. 119. and of divers other Lands in Odiham, suffered a common Recovery of the whole, and by Indenture expressed the uses in this manner, viz. of all his Lands and Tenements, in Odiham, to the use of his wife for life, the remainder over, &c. And of the Manor of Staple, to the use of his youngest son in tail; but by the clear opinion of the whole Court, al­though the Manor of Staple was in Odiham, yet the wife shall have no­thing therein; for the intent of the party was, that the son should have the same, and his wife the residue; and accordingly Iudgment was given.

LXII. Cobb and Prior's Case. Mich. 33 Eliz. In the Common Pleas.

THE Case betwixt Cobb and Prior was this; A man seised of Lands in Fee, devised the same to his Wife during the minority of his Son, upon condition, that she should not do Waste during the mino­rity of the said Son, and died; The Wife married a Husband, and died; the Husband committed Waste: It was holden by all the Iusti­ces, That the same was not any breach of the Condition; and Iudgment was entred accordingly.

LXIII. Taylor and Brounsal's Case. Trin. 33 Eliz. in the Common Pleas.

IN an Information upon the Statute of 32 H. 8. by Taylor against Brounsal, the Case was, That John Brounsal was seised, and gave the Lands to T. B. and the Heirs of his body, &c. the Remainder to R. B. and the Heirs male of his body, the Remainder to the right Heirs of J. B. T. B. died, having issue a Daughter; and R. B. made a Lease for years of the Lands: And it was holden by the Court to be no maintenance within the said Statute, for he in the Remainder might make a Lease for years: Then it was given in Evidence, That a common Recovery was had against the Husband and Wife with a single Voucher, and so. the Remainder limited to R. B. de­stroyed, and that after that Recovery R. B. made the Lease: To which it was said by the other side, That the said Recovery was never executed, and no discontinuance of the Remainder, and then the Lease made by R. B. was good: and the truth of the Case was That such a Recovery was had, and an Habere facias seisinam awarded and retorned, but no Execution was in truth had upon it, nor the Recoveror never entred: And if R. B. who is a stranger to the said Recovery shall be admitted against the Recovery to say, That no Exe­cution was thereof, was the Question? and therefore all the matter was found by special Verdict. It was also given in Evidence, That the Land was given to T. B. and the Heirs males of his body; and then when the Daughter, which is not in truth inheritable, en­tereth, if that Entry, she being privy in bloud to R. hee Vncle, shall be a Disseisin, or Abatement, &c. as in the Case of Littleton, where the youngest Brother entreth after the death of the Father; for in such case, the youngest Son doth not get any Freehold, but is but a Tenant at sufferance. Anderson, When the Daughter enters, and takes a Husband, who leaseth for years, and the Lessee entreth, the same is a Disseisin. Periam doubted it, for he said, When the younger Son entred, the Freehold was in him, which Anderson doubted.

LXIV. Maunsel and Vernon's Case. Trin. 33 Eliz. In the Common Pleas.

IQ Debt by Maunsel against Hen. Vernon Esquire, who came in by Capias, i. compulsary Process, and pleaded, That he was Hen. Ver­non Lord Powis, and so a Baron of the Parliament, and demanded Iudg­ment [Page 49] of the Writ. (Note, some said, That if the Defendant had come in by Issue joyned, or gratis, and not by compulsary Process, he could not have pleaded this Plea, or any other Misnosmer.) The Plaintiff replyed, That the Defendant is an Esquire, absque hoc, that he is Lord Powis, and a Baron of the Parliament; and as the Iury was ready at the Bar to try this Issue, this matter was objected. And An­derson conceived, That this Plea to the Writ was not good, for the name of Lord is not any degree, as Knight, Duke, Earl; nor is it parcel of the name, nor parcel of addition; and therefore it is no Plea in abatement of a Writ: and all the Writs of Parliament directed to Barons to summon them to Parliament, shall have their Names, Sirnames, and Additions: as if they be Knights, Knights, and if Esquires, they shall be named Esquires; and if a Bond be made by J.S. Lord R. the Writ shall not be so, for the King by his Writ doth not name any one Lord; but otherwise it is of Duke, Earl, &c. for these are Offices of Dignity, and parcel of their Names, and not onely Addi­tions. Windham and Periam contrary; and they conceived that there was no difference in this point betwixt a Lord and an Earl; for which cause the Court being in doubt, although that the Exception was en­tered of Record, would have saved the same to the party, and taken the Iury de bene esse: but afterwards, because it appeared it was joy­ned in the prejudice of Sir Edward Herbert, who was a stranger there­unto, and whose Title was concerned therein, and there was none on his part to inform the Iury; the Iury was at last dismissed by the Court.

LXV. Penruddock and Newman's Case. Trin. 28 Eliz. In the King's-Bench.

IN an Ejectione Firmae by Penruddock against Newman, 1 Leon. 279, the Plaintiff declared of a Lease made by the Lord Morley, and upon Not-guilty pleaded, the Iury found this special matter, (scil.) That W. Lord Mounteagle seised of the manner of D. whereof, &c. became bound in a Statute in such a sum of Money to A. who died; the Executors of A. sued Execution against the said Lord, (scil.) Extendi facias, a Liber­ate issued, upon which the said Manor was delivered to the Executors, but the said Liberate was not retorned: and it was farther found, That the Executors being so possessed of the Manor, the Lord com­manded a Court Baron to be holden there, which was done by suffe­rance and permission of the Executors, and in their presence: at which time the Executors said to the Lord the Conusor. We have nothing to do with this Manor. And upon this Verdict several matters were moved.

1. If the Execution were well done, because the Writ of Liberate was not retorned? and as to that, divers Books were cited, 21 H. 6. 8. 18 E. 3. 25. And there is a difference betwixt a Liberate, and a Capias ad satisfaciend. and Fieri facias, these Writs are Conditional, Ita quod habeas corpus, &c. Ita quod habeas denarios hic in Curia, 32 H. 8. ca. 28. 16 H. 7. 14. but contrary in a Writ of Habere facias seisinam, or in a Liberate, for in these Writs there are not such words; and therefore although they be not retorned, Execution done by virtue of them is good enough: See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deli­ver the moyety of the Land, and doth not retorn the Writ; if the Plaintiff will plead a new Action of Debt, the Defendant may plead in Bar the Execution aforesaid, although the Writ be not retorned, nor doth remain upon Record: and it is not like unto the Case of Par­tition made by the Sheriff, for that must be retorned, because that af­ter the Retorn of it, a secondary Iudgment is to be given, (scil.) Quod Partitio praedict. firma & stabilis remaneat in perpetuum, firma & stabilis in [Page 50] perpetuum tenetur, says the Book of Entries 114. And Egerton, the Solicitor-General, cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield, Earl of Lei­cester and Tanfields case. That such an Execution was well enough, although the Liberate was not retorned.

The second point was, Admitting that it be a good Execution, If the Executors being in possession of the Manor, and suffering the Co­nusor to hold a Court there, and saying the words aforesaid in the pre­sence of the Lord who is Conusor; if the same do amount unto a Sur­render, or not? And it was the Opinion of Wray chief Iustice; That it was not a Surrender, for that here the words are not addressed to the Conusor, who was capable of a Surrender, but to other persons: And it is not like unto the Case of 40 E. 3. 23, 24. Chamberlains Assise, where Tenant for life saith to him in the Rever­sion, That his Will is, that he enter upon the Land; the same is a good Surrender, because here is a person certain who may take the Land: But in our case, it is but a general speech, and therefore it shall not be a Surrender.

LXVI. Baskervile and Bishop of Hereford's Case. Mich. 29 Eliz. In the Common Pleas.

IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford, and others; the Plaintiff counted, That Sir Nicholas Arnold Knight, was seised of the Advowson in gross, and granted the same to the said Baskervile and others, to the use of himself for life, and afterwards to the use of Richard Arnold his Son in tail: Proviso, That if the said Nicholas died, his Heir being within the age of twenty three years, that then the Grantees and their Heirs should be seised to themselves and their Heirs, until the said Richard had accomplished the said age. Sir Nicholas died, Richard being but of the age of four­teen years; by force whereof the Grantees were possessed of the said Advowson, &c. and afterwards the Church became void, and so it ap­pertained to them to present.

Exception was taken to the Count by Serjeant Gawdy, because the Plaintiff had not averred the life of Richard, upon whose life the in­terest of the Plaintiff did depend: and he compared the same to the Case of the Parson, which had been adjudged, where the Lessee of a Parson brought an Ejectione Firmae, and it was found for him; and in Arrest of Iudgment Exception was taken to the Declaration, because the life of the Parson was not averred; and for that cause the Iudg­ment was stayed.

Anderson, Vpon the dying of Sir Nicholas, Richard being but of the age of fourteen years, an absolute Interest for nine years vested in the Grantees, not determinable upon the death of Richard; or rather, they are seised of a Fee determinable upon the coming of Richard to the age of 23 years.

Rhodes and Windham Iustices, contrary; and that here is an Inte­rest in the Grantees determinable upon the death of Richard within the term; for if Richard dieth without issue within the term, the Remain­der is limited over to a stranger.

And as to the Exception to the Count, it was argued by Puckering Serjeant, That the Count was good enough; for although the life of Richard be not expresly added, yet such an averment is strongly implied, and so supplyed: For the Count is Quod dictus Nich. obiit, dicto Ri­chardo being of the age of fourteen years, & non amplius, by force of which the Plaintiff was possessed of the said Advowson, quo quidem Nich. sic possessionato existente, the Church voided: and possessed he could [Page 51] not be, if not that the said Richard had then been alive; and that is as strong as an Averment: See 10 E. 4. 18. In Trespass for breaking of his Close, the Defendant pleaded, That A. was seised, and did enfeoff him, to which the Plaintiff said, That long time before A. had any thing, B. was seised, and leased to the said A. at will, who enfeoffed the Defendant, upon whom B. re-entred, and leased to the Plaintiff at will, by force whereof he was possessed untill the Defendant did the Trespass; and that was allowed to be a good Replication without a­verring the life of B. who leased to the Plaintiff at will, for that is sup­plied by the words, scil. virtute cujus, the Plaintiff was possessed untill the Defendant did the Trespass: See also, 10 H. 7. 12. In an Assise of Common, The Defendant made Title, that he was seised of a House and a Carve of Land, to which, he and all those whose Estate he hath, &c. had common appendant, and doth not say, That he is now seised of the House; but the exception was disallowed; for seisin shall be intended to continue untill the contrary be shewed.

LXVII. Morgan and Chandler's Case. Trin. 29 Eliz. In the King's-Bench.

IN Debt for Arrerages of Rent, by Morgan against Chandler, It was found by special Verdict, That the Land out of which, &c. was assu­red by an Act of Parliament to the Marchioness of Northampton for the term of her life, the remainder to the Lady Bourcher, her daughter, and the heirs males of her body, the remainder to King H. 8. in Fee; And it was ordained by the same Act, Quod omnes concessiones & dimissiones, Anglice, Grants and Leases, factae vel in posterum fiendae, by the said Marchioness, of the Lands aforesaid, per script. Indentat. dict. Marchio. bonae & validae, in Lege erunt, durante termino, &c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent, who assigned the same to the Defendant. The Lady Bourcher died without Issue, the Marchioness died; and if the Lease should now bind the Queen, was the Question: And it was moved by Clark of Lincoln's-Inn, That it should, for the King was party to the Act of Par­liament; and those Estates for life in Tail, and in Fee, are all as one Estate, and derived out of one Estate, and the Estate of the King is bound with the Lease; and it was moved by Broughton, That the Lease should not bind the Queen, and so by consequence not her Patentee; and he cited a Case, adjudged upon a like Act, scil. the Statute of 35 H. 8. by which it was enacted, That the Lady Katharine, Wife of the said King, should be as a Feme sole, and that she might make Leases, &c. In that case, the Leases should not bind the King or his successours; for the said Act did not extend to make the Leases good, but onely a­gainst Coverture. And it was observed by Clench, Iustice, that in the Act of Parliament now in question, It is expresly provided, that the Rent reserved by the Marchioness, should go to the lady Bourcher, but no provision made, that it should go to the King, and therefore it is not reason that the King should be bounden: But another matter a­rising upon the pleading, the point did not fall in judgment.

LXVIII. Backhouse and Spencer's Case. Trin. 29 Eliz. In the King's-Bench.

SAmuel Backhouse brought a Writ of Annuity against Alderman Spen­cer of London, 1 Roll. 228. and declared upon a Grant of an Annuity for term of years, and depending the Action, the term expired. And it was the [Page 52] clear opinion of the whole Court, that the Plaintiff could not have Iudgment, for the Iudgment in this Writ, is, Quod querens recuperet annuitatem praedictam, and now there is not any Annuity in being, See 34 H. 6. 20.6 Co. Hig­gin's Case. 1 Inst. 285. a. 14 H. 7. 31. 19 H. 7. 16.

LXIX. Mich. 29 Eliz. In the Common-Pleas.

IN a Writ of Partitione facienda, The Defendant prayeth Aid; and the Plaintiff counterpleads the Aid, upon which counterplea, they are at issue, and it is found for the Plaintiff: It was adjudged, that same is peremptory to the Defendant; and the Iudgment shall be, Non quod respondeat, sed quod Partitio fiat, &c.

LXX. Rolston and Chamber's Case. 1 Leon. pa. 282. Mich. 29 Eliz. In the Common-Pleas.

ROlston brought an Action of Trespass upon the Statute of 8 H. 6. of forcible entry, against Chambers, and upon issue joined, it was found for the Plaintiff, and damages assessed by the Iury, and costs of suit also, and costs also de incremento adjudged, and all were trebled in the Iudgment, with this perclose Quae quidem damna in toto se attingunt ad, &c. and all by the name of damages; and it was objec­ted against this Iudgment, That where damages are trebled, no costs shall be given, as in Wast, &c. But afterwards it was clearly agreed, that not onely the costs assessed by the Iury, but that which was also de incremento adjudged, should be trebled, and so were all the Presidents, as it was affirmed by all the Prothonotaries; and so are many Books, scil. 19 H. 6. 32. 14 H. 6. 13. 22 H. 6. 57. 12 E. 4. 1. Book of Entries, 334. and Iudgment was given accordingly: It was also agreed, that the party so convicted of the force at the suit of the party should be fined, notwithstanding that he was fined before upon an Indictment for the same.

LXXI. Wren and Bulman's Case. Mich. 29 Eliz. In the Common-Pleas.

1 Len. 282. Rolston and Chambers. WRen brought an Action upon the Statute of 1 and 2 of Phil. & Ma. for unlawfull impounding of Distresses against Bulman, and was Nonsuit, and it was moved by Shuttleworth, Serjeant, If the Defendant should have costs upon the Statute of 23 H. 8. and it was adjudged, that he should not; and that appears clearly by the words of the Statute, &c. For this Action is not conceived upon any such matter which is comprised within the Statute: And also the Statute upon which this Action is conceived, was made after the said Statute of 23 H. 8. which gives costs, and therefore the Statute of 23 H. 8. and the remedy thereof cannot extend to any Action given by 1 and 2 Phil. & Ma. And so Rhodes, Iustice, said it was adjudged 8 Elizabeth.

LXXII. Mery and Lewes's Case. Mich. 29 Eliz. In the Common-Pleas.

MEry brought an Action upon the Case against W. Lewes, 3 Len. 91. Executor of David Lewes, late Master of St. Katharine, juxta London, and declared, That the said David in consideration, that Quaedam pars do­mus fratrum & sororum Sanctae Katharin. fuit vitiosa & in decasu, The said Mery ad requisitionem dicti Davidis repararet eandem, assumed to pay to the said Mery all such moneys that the said Mery expenderet in such re­parations; And farther declared, That eandem partem Domus praedict. reparavit, &c. and upon Non assumpsit, it was found for the Plaintiff; In arrest of Iudgment it was objected, That the count was too ge­neral, Quaedam pars domus: For the Plaintiff ought to have shewed specially, what part of the house in certain, as Hall, Chamber, or other Rooms, but the same was not allowed: Another objection was, because it is set forth in the consideration, that the Plaintiff, Ad re­quisitionem dict. Davidis repararet; and the Plaintiff declared, Quod re­paravit, generally, without saying,2 Cro. 404. ad requisitionem dict. Davidis repa­ravit, and that is not the reparation intended in the Declaration, scil. Reparatio ad requisitionem, but a reparation of his own head, and at his pleasure, and for that Case judgment was reversed.

LXXIII. Brasier's Case. Mich. 29 Eliz. In the Common-Pleas.

NOTE, It was agreed in the Case by all the Iustices, and by the Prothonotaries, That if the Disseisor levy a Fine, and the Disseisee in the preservation of his right against the said Fine, en­ter his claim in the Record of the Foot of the Fine, that the same is not any such claim as shall avoid the Statute of 4 H. 7. See for this Case of the Lord Zouch, in Plowden's Commentaries.

LXXIV. Ralph Morris's Case. Trin. 29 Eliz. In the King's-Bench.

RAlph Morris and his Wife, libelled in the Spiritual Court, for that the Defendant called the Wife of one of the Plaintiffs, Veneficam, Sortilegam, & Incantatricem Daemoniorum; and now came the Defendant into this Court, and surmised, that the matter of the Libell is determinable by the Common Law, and thereupon prayed a Prohibition, and it was holden by the Court, That although the of­fence of Witchery be in some cases triable by Law, yet the same doth not take away the jurisdiction of the Spiritual Court; and therefore, to call one a Witch, generally an Action will not lie at Law, as it hath been adjudged; But to say, that he hath bewitched such a one, an Action will lie at Law. Wray, Such Witchcraft as is made Fe­lony by any Statute, is not punishable in the Ecclesiastical Court, but in case of slander of such Witchcraft, upon such slanderous words of Witchcraft which is not Felony, the Ecclesiastical Court shall punish the same, and afterwards in the principal Case, a Consulta­tion was awarded.

LXXV. Bardens and Withington's Case. Trin. 29 Eliz. In the Common-Pleas.

A. Is bound in a Statute to B. and sows the Land. B. extends the Lands, which are delivered unto him in execution; it was ad­judged in this Case, that the Conusee should have the Corn sowed; The same Law in case of a Recognizance.

LXXVI. Smalman and Lane's Case. Trin. 29 Eliz. In the Common-Pleas.

THE Case was, a Capias upon an original Process, was delivered to the new Sheriff of Warwick against Lane, at the suit of Smal­man. And the Sheriff informed the Court, that before that the Pro­cess was directed to him, That the said Lane was taken in Execution by the old Sheriff, upon a judgment given against him in the King's-Bench; and that the said old Sheriff had imprisoned the said Lane, by force of the Execution in his own house, and there he remained, and prayed the advice of the Court, what retorn he should make upon that matter, because the said Lane was never in his possession; for all the o­ther prisoners which were in the Gaol, and in the ordinary Prisons, were delivered to him, and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered. And it was the opinion of all the Iustices, That by the Law, the old Sheriff ought to deliver the body of him who is in his custody by view, to the new Sheriff; and such Prisoners ought to be brought unto him to view, and from that time, the Law shall adjudge such Prisoners to be in the possession of the new Sheriff, and not before; for he is not bound to go to them, not being in the ordinary Prison of the County. Anderson, The new She­riff may retorn, That the said Lane is in Execution in custodia sua, and so charge himself; For although the Office of the old Sheriff be determined, yet it is not an escape, so long as the party be in custodia and not at large. Periam contrary, It is an escape in the old Sheriff as soon as his authority is determined, the Prisoner not delivered: See now C. 3. part 71. Wesby's Case.

LXXVII. Megot and Broughton and Davie's Case. Mich. 29 Eliz. In the King's-Bench.

1 Cro. 105.IN an Action upon the Case upon Assumpsit, it was found by Nisi prius for the Plaintiff, and afterwards before the day in Bank, one of the Defendants died, and after Iudgment given, the other Defen­dant brought a Writ of Error in the same Court, where the Iudgment was given, and assigned an Error in fact: scil. the death of one of the Defendants pendant the Writ, Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said, that the Case is not like the Case of an Action of Trespass, for every Tres­pass done by many, is several by each of them, but every Assumpsit is joint, and not several. Another point was moved, If the Court could reverse their own Iudgement? Quaere.

LXXVIII. Farrington and Fleetwood's Case. Trin. 29 Eliz. In the Exchequer.

THE Case upon the Statute of 31 H. 8. of Monasteries, was this,3 Len. 164, 165. ante 333. Plus. The Abbat and Convent of A. &c. 29 H. 8. made a Lease of cer­tain Lands for three lives, to begin after the death of one F. if they so long live: and afterwards, 30 H. 8, within a year before the dissolution, they make another Lease to Fleetwood: If the first Lease in the life of the said F. be such an Estate and Interest, as by virtue of the said Sta­tute shall make the second Lease void? was the Question; for it was not in esse, but a future Interest.

Manwood, All the reason that hath been made for the second Lease, is, because the first Lease is but a possibility; for F. by possibility may survive all the said three, and so it shall never take effect: But not­withstanding, be it a possibility or otherwise, it is such a thing which may be granted or forfeited, and that during the life of F. And note the words of the Statute; If any Abbat, &c. within one year next before the first day of this present Parliament, hath made, or hereafter shall make, any Lease or Grant for years, life or lives, of any Manors, &c. whereof and in which any Estate or Interest for life or years, at the time of the making of any such Lease or Grant, then had his being or continu­ance, and hereafter shall have his being or continuance, and then was not determined, &c. shall be void, &c. And here is an Interest, and that not determined at the time of the making of the Lease to Fleetwood. And of such Opinion were all the Barons, and divers other Iustices; and therefore a Decree was made against the Lease, &c.

LXXIX. Beaumont's Case. Trin. 29 Eliz. In the Exchequer.

NOte, it was holden by all the Barons in the Exchequer, Owen Rep. 46. That a Duty which is not naturally a Debt, but by circumstances onely, as Debt upon a Bond for performance of Covenants, or to save harmless, may be assigned over to the Queen for a Debt; but in such case, a present Extent shall not issue, but a Scire facias shall issue forth, to know if the party hath any thing to plead against such Assignment.

LXXX. Goddard's Case. Trin. 29 Eliz. In the Exchequer.

IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire, 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised, and the Disseisor aliens the Lands, and afterwards the Disseisee doth re-enter? Manwood said, That the Land shall not be charged with a Fine for alienation without licence, because the Title of the Alienee grew under the wrong of the Disseisor; but the person of the Disseisor shall be charged with such Fine. Te­nant of the King in Capite makes a Lease for life, the Lessee for life makes a Feoffment in Fee without licence, the Lessor re-en­treth, neither his person nor the Land shall be charged: But if my Feoffee upon Condition maketh a Feoffment without [Page 56] license, and I re-enter for the Condition broken, now my Land shall be charged with the Fine upon Alienation, for the Feoffee was in by me by good and lawfull Title, because he had power to make a Fe­offment over, although subject to the Condition. So if Tenant in tail, or the Husband seised in the Right of his Wife, make a Feoff­ment in Fee, and afterwards the Land is recontinued, the Fine ac­cruing for Alienation without licence shall bind the Land: And if Te­nant for life loseth issues, and dieth, the Lands shall be charged with the same.

LXXXI. The Lord of Northampton and Lord St. John's Case. Trin. 29 Eliz. In the Exchequer.

2 Roll. 195. Co. 12. 1, 2. Co. 4. 95. Dyer 262.THE Lord of Northampton had by ancient Letters Patents bona & catalla felonum & fugitivorum within the Isle of Ely; and one dwelling within the Island was attainted of Felony, to whom ano­ther was indebted by Obligation, and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's, who within his Manor had also bona & catalla felonum & fugitivorum; and at the payment the Lord St. John claimed the money: But all the Ba­rons of the Exchequer were clear of Opinion, That the Lord St. John could not have the money, for the place of payment nihil operatur, but the Obligation is the substance which came to the Lord of Northampton within the Isle of Ely. Popham, the Queens Attorny, claimed the mo­ney for the Queen, for the Lord of Northampton cannot have it; for by the general words of bona & catalla felonum things in Action do not pass, but by express words they well pass, otherwise not: And there­fore day was given to the Lord of Northampton to shew his Letters Patents.

LXXXII. Ards and Smith's Case. Mich. 30 Eliz. Rot. 2737. In the Common Pleas.

3 Co. 8. EDward Ards brought a Replevin against Smith and Reading; the De­fendants made Conusance as Bailiffs to Robert Chamberlain, and shewed, That one A. was seised of the Manor of Keney in Fee, where­of the place where is parcel, and so seised, gave the said Manor to Richard Chamberlain and Sibil Fowler, and to the Heirs males of the said Richard: Richard and Sibil intermarry, and have issue Edward; Richard dieth, Sibil dyeth, Edward hath issue Leonard, and dieth; Leo­nard hath issue Francis, and dieth; Francis hath issue Robert, in whose Right the Conusance is made, and dieth; Robert entreth: The Plaintiff in bar of the Conusance sheweth, That one B. was there­of seised, and thereof enfeoffed one Cottesford, then Master of Lin­coln College, and the Fellows thereof: after which the said Leonard, Son and Heir male of the said Edward, 25 H. 8. did release to the said Master and Fellows with warranty, the said Robert, in whose Right the said Conusance is made, being Heir male of the said Robert, and demanded Iudgment, if against that warranty, &c. The De­fendants confess the Gift before to the said Richard and Sibil, and that they had issue the said Edward; but farther shewed, That after the death of the said Richard, Sibil, and Edward her Son leased the said Manor for years to one Mascal, who entred, and was possessed: Edward suffered a common Recovery unto the use of the Recoverors, who entred and ousted the Lessee, and enfeoffed the said B. who [Page 57] enfeoffed the said Master and Fellows; the Lessee re-entred, Sibil died, Leonard, Son and Heir apparent of Edward, released to the said Master and Fellows with warranty; Edward died, Leonard died, and thereupon a Demurrer was by the parties: and the matter was, If this Recovery being suffered by him in the Remainder in tail upon an Estate for life, the Recoverors entring upon the Lessee for years of the Lessee for life, and putting him out, and afterwards the Lessee for years re-entring: If now any Estate did remain in the College, after the Re-entry, which might work a Release?

Snag, Serjeant,, argued, That a sufficient Estate did remain in the College, upon which a Release might enure; i.e. an Estate to begin after the death of Sibil, and the expiration of the term for years: and although rei veritate, Edward was not Tenant of the Freehold at the time of the Recovery, yet such an exception doth not lie for the Issue; and to that purpose he cited the Opinion of Fairfax, 12 E. 4. 14.

Shuttleworth, Serjeant, contrary; This Recovery works nothing but by way of Estoppel and Conclusion, and therefore the issue in tail may well disclose the matter, and avoid such Recovery: and the bet­ter Opinion in the Case cited before, 12 E. 4. is, That such a Re­covery against such a person is utterly void, which see there by [...]ittle­ton, Choke and Brian. 14 E. 4. 2. and also 28 Ass. 17. and Dyer 8 Eliz. 252, 253. Land conveyed to the Husband for life, the Remainder to the Wife in tail, the Remainder to the Right Heirs of the Husband and Wife; The Husband and Wife suffer a common Recovery, the Husband hath issue and dieth, and afterwards the Wife dieth, the issue shall avoid the Lease and Recovery. See also the Case be­twixt Hare and Snow, Plow. 20 Eliz. 514. where a common Recovery was had against Tenant in tail, and his Wife, whereas in truth the Wife had nothing in the Land whereof the Recovery was suffered: It was holden, that the issue in tail, or any other person, might shew the truth of the matter; for he shall not be bound by any Estoppel which his Father hath admitted, by joyning in Voucher with his Wife, for he is not subject to the Estoppel; and therefore it was hol­den, That if the Wife in such case might sue Execution to have in value, yet the Son in tail might oust him of it. So 8 H. 4. 122. a Praecipe is brought against Tenant in tail, who prays in aid of a stran­ger as Tenant for life, who enters into the aid, and bars the De­mandant, and afterwards the Tenant in tail dieth; his issue is at large to claim the Estate-tail, although the mouth of his Father was estopped as to it. So Tenant in tail brought a Quod ei deforceat, and counted upon an especial tail, whereas in truth it was a general tail, and recovereth, and dieth; the said Recovery shall not conclude the issue. See 33 H. 6. 18. And in our Case, when the Recoverors enter by force of the recovery, the same is a wrong to the Lessee for years, and also to the Tenant for life; for the one is ejected, and the other disseised; and therefore the Re-entry of the Lessee doth defeat all the Estate which was in the College under that Recovery: and here the Entry of the Lessee for years shall avoid all the Estate which was conveyed to the College by the Recoverors. See 44 E. 3. 30, 31. Bas­singborn's Assise: Land is given to A for life, the Remainder to B. for life, the Remainder to C. in Fee: A. aliens in Fee, the Ancestors col­lateral of him who hath the Fee doth release to the Alienee with war­ranty; B. enters, here the whole warranty is lost, and all the first E­state is recontinued: So in our Case, by this Entry of the Lessee, the whole Estate of the College under the Recovery is defeated, so as no­thing remains in the College, upon which the Release can enure, and then there is no warranty in the Case: And as the Case is here, Ed­ward, who suffered the Recovery, dieth before the descent of the war­ranty by the death of Leonard, by whom the Release with warranty was [Page 58] made; by the death of which Edward the Interest which the College had in the said Manor by the said Recovery, and the Estoppel of it, was determined and utterly gone, and then the warranty descending after­wards cannot attach upon the possession which was at the time of the warranty made, which was by the conclusion, which by the death of Edward is determined and removed by an Eign Title, i. the Entail. As if Tenant in tail doth discontinue, the Discontinue is disseised, Te­nant in tail releaseth with warranty to the Disseisor, the Disseisee en­tereth in the life of Tenant in tail, who afterwards dieth; the warran­ty works nothing for the cause aforesaid. And also he put this Case, Te­nant in tail of Land grants a Rent-charge in Fee, and an Ancestor col­lateral releaseth to the Grantee with warranty, and dieth, the Tenant in tail dieth, now the issue is bound: but if Tenant in tail dieth before him who maketh the Release, now the Rent is determined by the death of Tenant in tail, and then the warranty cannot attach upon it. At another day the Case was moved, and conceived in these words, (scil.) Tenant for life, the Remainder in tail, Tenant for life leaseth for years, a Recovery is had against him in the Remainder in tail, living Tenant for life, the Recoverors enter, and oust the Lessee for years, the Son and Heir of him in the Remainder in tail releaseth with war­ranty to him to whom the Recoverors have assured the Lands, the Les­see enters, he against whom the Recovery was had dieth, the Releasor dieth, &c. It was holden, that the Entry of the Lessee, before that the warranty had attached upon the possession which passed, had avoided the warranty. And the Lord Anderson conceived, That the Recovery should not prejudice the issue in tail, but that the issue shall Fauxifie the same: And if Tenant in tail be disseised, and so disseised suffereth a com­mon Recovery, his issue shall not be barred, quod fuit concessum per om­nes: And afterwards another matter was moved, (scil.) That the Re­lease is pleaded to be made to Lincoln College by the name of Custodi sociis & Scholaribus Lincolniensis Collegii in Oxonia, where the true name of the College, as is confessed by the Record in the Plea pleaded, is, Custos sive Rector, Socii & Scholares Lincolniensis Collegii in Oxonia, &c. It was adjourned. See this Case reported, (3 part, Lincoln College Case.)

LXXXIII. Hall and the Bishop of Bath's Case. Mich. 32 Eliz. In the Common Pleas.

HAll brought a Quare Impedit against the Bishop of Bath, and others: The Incumbent pleaded, Quod ipse nihil habet, nec habere clamat, &c. nisi de praesentatione Georgii Sidenham militis, not named in the Writ, and demanded Iudgment of the Writ, upon which the Plaintiff did de­mur in Law: And it was argued by Drew, Serjeant for the Plaintiff, That the Writ was well brought without naming the Patron: for if a Quare Impedit be brought against the Patron and Incumbent, and the Patron dieth,1 Leon. 45. pendant the Writ, the Writ shall not abate: 9 H. 6. 30. It might be, that the Plaintiff did not know, nor could tell, who pre­sented the said Incumbent, but he findeth the Incumbent a Disturber by his Incumbency: and if of necessity such Patron ought to be na­med, then if such a Vsurper should die before the Writ brought, he which hath cause of Action should be remediless. And by Anderson and Periam, the Writ is good enough for the reason aforesaid: And Anderson put this case; If A. wrongfully by Vsurpation doth present, and his Clark is received; and afterwards A. having gained the Patronage, grants it over to B. Against whom shall the Quare Impedit be brought? Walmsley, Against B. which Anderson doubted.

LXXXIV. Hughe's Case. Mich. 32 Eliz. In the Common-Pleas.

IN a Formedon, the Writ was, That A. Dedit Aliciae filiae suae, and to J.S. and to the Heirs of their two bodies begotten, and it was shew­ed in abatement of the Writ, That the name of the Wife is put before the name of the Husband, To which it was said by the Court, that if such a Writ be brought against the Husband and Wife, and the name of the Wife be put before the name of the Husband, the Writ shall a­bate; and if in the Case at Bar it had appeared, That the Donees at the time of the Gift, were Husband and Wife, upon such a mat­ter disclosed the Writ should abate; but that doth not appear plainly to the Court.

LXXXV. Mich. 32 Eliz. In the Common-Pleas.

NOTE, It was holden by the Court,1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant, who loseth by default at the Grand Cape; that he may reverse the same by a Writ of Error; but where an Infant appeareth by Guardian, and afterwards loseth by default, there he shall never avoid it: for if any default be in the Guar­dian, the Infant shall recover against him in a Writ of Deceit. And afterwards, the Iudgment in the first case was reversed.

LXXXVI. Mich. 32 Eliz. In the Exchequer-Chamber.

NOTE, In the Exchequer-Chamber, before the Lord Chancellour, The two chief Iustices, and the chief Baron; a Writ of Error was cast upon a Iudgment given in the Court of Exchequer; and it was agreed, Quod propter absentiam Dom. Thesaurarii Angliae, They ought not, nor could receive the said Writ; and the Statute of 31 Eliz. doth not help the matter, for that extends but to discontinuances, which before the Statute many times hapned for the not coming of the Chancellour or Treasurer, and not to give Conusance in a Writ of Error in the absence of the Treasurer, &c.

LXXXVII. Lacy and Fisher's Case. Mich. 32 Eliz. In the Common-Pleas.

IN a Replevin by Lacy against Fisher, The Defendant pleaded, that the place where, &c. is called Spicold, and holden of the Manor of Easthall by certain Rent, and made Conusance as Bailiff of the Lord of the said Manor; and issue being joined hereupon, It was tried by the Iury of the Visne of Spicold, and it was moved in arrest of Iudgment, that the issue was mis-tried; For the Visne ought to have been of Spi­cold and Easthall also:Web and Richmond's Case. And a Case was cited to have been adjudged ac­cordingly betwixt Webb and Richmond. M. 31 Eliz. in the same Court.

LXXXVIII. Corbet's Case. Mich. 32 Eliz. In the Common-Pleas.

THE Case was, That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling, and before notice of that suit, he paid divers other debts of the Intestate, due by specialties; so as he had not Assets to pay the debt in demand, having Assets, at the day of the Teste of the original, and now the Defendant appearing, pleads the same special matter, and concluded, And so nothing remained in his hands. And it was holden per Curiam to be a good Plea: See 2 H. 4. 21, 22.

LXXXIX. Sir William Pelham's Case. Pasch. 31 Eliz. In the Exchequer.

1 Co. 41.THE Case, short put, was this: A. Tenant for life of a Messuage, &c. the remainder in tail to B. with divers remainders over: A. by Deed indented and enrolled, bargained and sold the Messuage, &c. so conveyed to Sir William Pelham in Fee, who afterwards suffered a common Recovery thereof, in which A. is vouched; and so a common Recovery is had and executed, and all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remain­der in tail; or if it be a forfeiture, was the Question. Altham of Gray's-Inn argued, that here is a forfeiture: First, it is to see, if a common Recovery suffered hy Tenant for life (who is also Bargainor in this case) be a forfeiture or not by the Common Law, if no Execution be sued upon the same Recovery. Secondly, If the Recovery be execu­ted, if he in the Remainder may enter for the forfeiture. When Te­nant for life bargaineth and selleth the Messuage,Post. 65. acc. 1 Len. 264. 1 Inst. 251. b. acc. 1 Inst. 330. b. &c. although upon it an Estate in Fee be limited, yet nothing passeth from him, but that which he may lawfully pass, and that was the Estate for the life of the Bargainor, for such Estate onely might lawfully pass; and here the Bargainee is but Tenant for the life of another, and when with his own consent he suffers a common Recovery and that without right, the same is a forfeiture. By matter in fact, a particular Tenant may com­mit a forfeiture, as well as by matter of Record: By matter in fact he cannot commit a forfeiture, if the Reversion be not thereby pulled out of him in the reversion: As if Lessee for ten years maketh a Lease for 1000 years, the same is no forfeiture, for by that the Reversion is not touched; but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion, although in truth it doth not touch the inheritance, yet it is a forfeiture; which see 39 E. 3. 16. If Te­nant for life plead any thing against the right of him in the Reversion, it is a forfeiture. And by Finchden and Belknap, he cannot plead to the right. 5 Ass. 3. Tenant for life is impleaded in a Praecipe by a stranger, and confesseth the Action upon which the Demandant hath Iudgment; the Lessor enters, against whom the Demandant sueth Execution, and the Lessor brought an issue, and had Iudgment to recover, for it is a forfeiture, because the Tenant for life hath admitted the Reversion in another, because it is an alienation to the disinheritance of the Plaintiff, i. the Lessor. 19 E. 3. t. Receit 14. where Tenant for life pleads in chief, or doth not gainsay the Action of the Demandant, or makes default by Covin, he shall forfeit his Estate; but if a Rent be demanded against [Page 61] Tenant for life, and he render the same, it is no forfeiture: 22 Ass. 31. Tenant for life is impleaded by Covin betwixt him and the Deman­dant, and pleads in chief without aid prayer, upon which Iudgment is given, he in the Reversion may enter: In a Quid juris clamat, against Tenant for life, who pleaded faulty, traversing the point of the Action, he in the Reversion shall not be received, for in as much as the Tenant hath traversed the Action, he is not within the Statute of West. 2. of default, Reddition; but he in the Reversion may enter by the Com­mon Law: 22 E. 3. 2. In a Scire facias, to execute a Fine against Te­nant for life, who pleaded to the Enquest, whereas in truth, the Land in demand was not comprised within the Fine, and Iudgment is given for the Demandant in the Scire facias, that he in the Reversion may en­ter: In the principal Case here, there is apparent and manifest covin; for the Tenant for life is vouched without cause, and this Recovery is by assent, and is to the use of the Bargainee, who is Tenant for the life of another, and therefore by the Common Law, he in the Reversion may enter before the Execution be sued. And it is well known, that these common Recoveries are used to dock a Remainder in tail; and that was the scope of this Recovery: And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat, who voucheth a stranger, the Demandant counterpleads the vouchee, and it is found for him; he in the Reversion hath no remedy, but a Writ of Right, and if such vouchee enters into the Warranty, and loseth by Action tried, or by default, &c. That Book is to be intended of a Recovery executed; for there in such a case, he in the Reversion may not enter, but is put to his Writ of Entry by the Common Law, vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger, he in the reversion may enter, but if he doth not enter untill the other hath reco­vered, then he cannot enter, but he is put to his Writ of Entry, Ad ter­minum qui praeteriit, vel de ingress. ad com. Legem, and therein shall falsifie the Recovery. And there by Brook, Voucher of a stranger is not a cause of forfeiture; for he doth not disaffirm the Reversion to be in the Lessor. And he vouched, 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer; and so he argued, That before execution, he in the Remainder might enter, but after execution, he is put to his Action; but in our Case, although Execution be sued, yet he in the Remainder may enter, for it is found by verdict, That at the time of the Recovery he was within age, and then no Laches of entry shall be imputed unto him, and then he shall not be driven to his Action: As if Tenant by the Curtesie maketh a Feoffment with Warranty, and dieth, and the same descendeth to his Heir within age, yet he shall enter, although that he had not avoided the Warranty in the life of his Ancestor; And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case: For Sir William Pelham, the Bargainee, was but Tenant for life, and although that he be but Tenant for the life of another, yet he is Tenant for life as fully as if he were Tenant for his own life: The words of the Statute are, or otherwise for the term of life or lives quo ad nom. As upon the Statute of 20 E. 1. which gives receit, i. de defensione juris; the words are, Cum quis aliquod Breve Dom. Regis impetret versus tenen­tem per Legem Angliae, vel feodum talliatum, vel sub nomine Dotis, vel alio modo ad terminum vitae, &c. Also, although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate, yet he is within the Statute of 32 H. 8. for he was in the Re­mainder at the time of the Recovery, and at the time of the entry, he in the immediate Remainder was dead, and then he next in Remain­der: See 15 E. 4. 9. by Littleton, If I grant my services to one for life, and he in a Praecipe brought against him, plead in the Right; or gran­teth unto another the said services in Fee, the same is not any forfei­ture, because it is not any discontinuance. It will be objected, That [Page 62] the words of the Statute of 32 H. 8. are, That such Recoveries shall be utterly void; and if so, then he in the Reversion cannot be damnified, and then no cause of forfeiture; To that it was easily to be answered, That where Tenant for life doth any thing which sounds to the disinheri­ting of him in the Reversion by matter of Record, although it doth not devest or otherwise prejudice the Inheritance, yet it is a forfeiture. Coke contrary; Here in our Case there is not any Covin: Sir William Pel­ham, the Bargainee, he was deceived by the Bargainor, for he did not know but that the Bargainor was seised in tail at the time of the Bar­gain, and it was lawfull for him to doe other act in the farther assurance of his bargain; and it was also lawfull for him to vouch his Bargainor; and although the Bargainor vouched a stranger, yet it is not a forfei­ture, 39 E. 3. 16. Aid prayer of a stranger is a forfeiture, and the reason thereof is, because he acknowledgeth the Reversion to be in a stranger, and that is the cause of the forfeiture. See Book of Entries 254. Where upon aid prayer, the party to have aid sheweth special matter; but in our Case, Sir William Pelham hath vouched his Bargainor, and that not without cause, for he hath a Warranty from him; and the Deman­dant could not counterplead it, for he had seisin, by force whereof he might make a Feoffment: As unto the Case of 14 E. 3. Tit. Receit 135. Lesse for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day, in that case it is said, that he in the Reversion may enter. It is true, that he may enter in the Receit, but not into the Land for forfeiture, for then Fitz. would have abridged the Case in title of Entry Congeable, and not in the Title of Receit: and the Book of 5 E. 3. is good Law, for there the Tenant doth confess the Reversion to be in another; but in our Case the Tenant voucheth, which is a lawfull act done, and according to the Covenants of his purchase: And al­though the Recovery be by agreement, yet it is not therefore a forfei­ture; for if the Tenant for life voucheth truly, it is no forfeiture. Be­fore the Statute of West. 2. cap. 3. which gave Receit to the Wife, and to those in the Reversion where the particular Tenant is impleaded, and maketh default, vel reddere noluerit, there was no remedy in such cases, but by Writ of Right, but no entry, and that was for the reason of the credit which the Law gave to Recoveries, for if they might enter; wherefore is Receit given? but that was in two cases onely: But afterwards, because it was found, that many particular Tenants being impleaded would plead faintly, the Statute of 13 R. 2. gave re­ceit in such cases. And upon what reasons were these Acts and Sta­tutes made, if in such cases the entry was congeable? But after these two Statutes, another practice was devised, for such particular Te­nants would suffer Recoveries secretly, in such sort, that those in the Re­version could not have notice thereof, so as they could not before Iudge­ment pray to be received, to remedy which mischief, the Statute of 32 H. 8. was made, by which all Recoveries had against Tenant by the Curtesie, or otherwise for life or lives, by agreement of the parties of a­ny Lands whereof such particular Tenant is seised shall be void, as Tenant by the Curtesie, &c. should be void against him in the Reversi­on; and yet there was an evasion to creep out of that Statute; for such particular Tenants, would make a Feoffment with Warranty, and then the Feoffee should be impleaded in a Writ of Entry, and he vouch the Tenant for life, who would aver, and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants, &c. For the remedy of which mischief, the Statute of 14 Eliz. was made, by which it is provided, That such Reco­veries had where such particular Tenants are vouched shall be void, if such Recovery be by Covin betwixt them: And he conceived, That the forfeiture is not in respect of the Recovery it self, but of the Plea pleaded by the Tenant: And here in our Case, there is not any Covin [Page 63] found, or that Sir William Pelham knew that he was but Tenant for life; but it is found, that this Recovery was with their assent, and that was lawfull as the case is; for they might agree to have such a Recovery for farther assurance: and so Sir William Pelham hath not vouched any but his Bargainor, and that according to their Cove­nants; and this Bargainor was not a bare Tenant for life, but he had also a Remainder in tail, although not immediately depending upon the Estate for life, which he had cut off; there it was not meerly a feigned Recovery: See 5 E. 4. 2. and 24 H. 8. br. Forfeit. 87. where Tenant for life being impleaded in a Praecipe, voucheth a stranger, the same is no Forfeiture, for the same doth not disaffirm the Reversion: but con­trary of Aid prayer, for a stranger may release with warranty to Te­nant for life, upon which he may vouch: And he reported in his Argu­ment, That Bromley, Chancellor of England, sent him to both the chief Iustices, to know their Opinions upon this point; and they were of Opinion, That the Voucher of a stranger was not any Forfeiture, and also that after the Recovery was executed, he in the Remainder could not enter; but they conceided, that the Right of him in the Remainder was not bound: And he said, That after the Recovery was executed, that he in the remainder could not enter: See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawfull, infinite Suits would fol­low thereupon, which would be much to the Discredit of common Re­coveries, which are now the Common Assurances of the Land. As to the objection of the Enfancy, the same will not help the matter. Br. Sav. Default 50. 6 H. 8. A Recovery had against an Infant, in which he voucheth and loseth, is not erroneous; contrary of a Recovery upon a default: And if an Infant, Tenant in tail, suffer a common Re­covery, the same is a discontinuance, for in such Recoveries Infancy is not respected: And in a Scire facias upon a Iudgment had against the Father, the Heir shall not have his age: And he cited a case out of Bend­loe's Reports, 5 Eliz. Tenant for life, the Remainder over to a stranger in Fee, Tenant for life is disseised by Covin; in a Praecipe quod reddat against the Disseisor, he voucheth the Tenant for life, who enters into warranty generally, and voucheth over the common Vouchee: It was adjudged, That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant, for he was but Tenant in Law, because Vouchee; and also that the Recove­ry was a good bar to him in the remainder, notwithstanding that he was within age at the time of the Recovery.

And afterwards at another day the Case was argued by the Barons; and Clark Baron conceived, That the Entry of him in the remainder was congeable: It hath been said, That Sir William Pelham did not know that the Bargainor had an Estate but for his life, or that any other person had any remainder therein; the same is not to any pur­pose to excuse him: for 42 E. 3. Every Purchasor ought at his own peril take notice of the Estates and charges which are upon the Lands of which he is Purchasor; and the Law presumes that none will pur­chase Lands without advice of Councel, and without knowing the Titles to the Lands. And although divers Statutes have been made to provide against the practices of particular Tenants, yet it is no argu­ment, that no other remedy was before. And by Littleton, If Tenant for life joyneth the Mise upon the mere right, it is a forfeiture. And he held strongly, That the Iudgment did not take away the Entry, cause of forfeiture being given before the Iudgment: See 5 Ass. 3. and 22 Ass. 31. to that purpose: For where Tenant for life is impleaded, he ought to attend upon him in the reversion, and to expect instructions from him in defence of his Title, &c. And therefore if he maketh default, or confesseth Action, the same is a forfeiture: And as to the supposed recompence, the same shall not help this Case, for this is a common [Page 64] recovery, and nothing else but an Assurance: And Recoverors they are but Assignees, and they shall take advantage of Conditions by 32 H. 8. and a Recoveror shall be seised to the use of him who suffereth the Re­covery, if no other use be expressed. And he also held, That when Te­nant for life bargains, and sells his Lands by Deed enrolled, although no Fee passeth, yet it is a forfeiture, and that by reason of the En­rolment, which is matter of Record. And he said that if an Infant, Tenant for life, be disseised, and the Disseisor dieth, and afterwards the Infant dieth, that he in the Remainder might enter.

Gent, Baron, argued to the same intent; and he said, That if Te­nant for life suffereth a Recovery, the same is not simply a forfeiture, for he may have a warranty upon a Release or Confirmation made to him. Attornment doth not give a Right, but is onely a Consent, yet if he who hath not any thing in the Reversion will levy a Fine thereof unto another, and afterwards the Conusee brings a Quod juris clamat against the Tenant of the Land, and he attorn, it is a Forfeiture.

Manwood, Baron, to the same intent; this is a new Case, and I have not seen nor read the Case in any Book, nor seen any presidents; and it is a great case, and a general case, and worthy to be argued: And I conceive clearly, That here is a direct and express forfeiture: the Dignity of Iudgments in reputation of Law hath been urged, which ought to stand in force until they be reversed by Error or Attaint: And also Littleton 481. hath been urged, where upon the Statute of West. 3. he saith, That before the Statute aforesaid, if a Lease had been made to one for life, the remainder to a stranger, and afterwards a stranger by faint Action hath recovered against Tenant for life by de­fault, and afterwards the Tenant for life died, he in the Remainder had not any remedy: But there Littleton doth not report the same as his own Opinion, but as an Opinion conceived by a Reader upon the said Statute; and in truth it is but a meer conceit. And as to the main point, he took this difference; Such Recoveries in which the title of the Demandant stands indifferent to the Court, and non con­stat, if it be good, or not being suffered by Tenant for life by default or confession, without aid-prayer of him in the Reversion, do not make any forfeiture, although that the Tenant for life hath not dealt with him in the Reversion, not having prayed in aid of him: And in such case, if a Lease be made for life, the Remainder over in Fee, upon such Recovery he in the remainder shall have a Formedon in the remain­der, or a Writ of Right, and shall not put out him who recovered, without any Action, and that by the common Law. Then came the Statute of West. 2. c. 3. which gave unto the Wife a Gui in vita, upon a Recovery had against the Husband by default, where before she had not any remedy, but onely Writ of Right: and notwithstanding, si ulte­rius quaeratur, si necesse habet ostendere jus suum, secundum formam brevis quod prius impetraverat: And if his Right be not better than the right of him in the Reversion, he shall lose it, notwithstanding the Iudgment given before for him: and that Statute gave Receipt, or Writ of Entry, ad terminum qui praeteriit; and that Statute is to be intended of such Re­coveries where a good Title or indifferent is, so as non Constat Curiae, if it be good, or not? After that Tenant for life was driven unto a new shift, and would not make default, or lose for not pleading, but he would plead, but that faintly; for the remedy of which mischief, the Statute of 13 R. 2. which gave Receipt in such case; the particular Tenant be­ing restrained by this Statute, he jugled yet, and practised to suffer a Recovery secretly, without notice of him in the Reversion: for the re­medying of which mischief, the Statute of 32 H. 8. was made, and that makes such Recovery had against such a particular Tenant void against him the Reversion.

[Page 65]It hath been objected, That the said Statute of 32 H. 8. did not give any forfeiture in this case, but makes the Recovery void; and there­fore he in the Reversion ought to stay until after the death of the parti­cular Tenant: To that I shall speak after. But here our case is of a common Recovery, and it doth appear to the Court, that the De­mandant hath not right, for the Tenant might have barred him: Also this Recovery is not to the use of the Recoveror, but to the use of him who was Tenant in it; and in truth it is nothing else but an assurance: and in these feigned Recoveries the Recoveror comes in under the Title of the Tenant to it, and not paramount, as in case of a Recove­ry upon a good Title. A Lease for years made by him who after suffers a Recovery is good, and shall not be defeated by the Recovery; other­wise it is where the Recovery is upon a good Title. See Statute of Glocest. cap. 11. where upon default of the Tenant, Receipt is given for Lessee for years; yet if the Tenant vouch, upon default of the Vou­chee the Lessee for years shall be received: and now Receipt of Lessee for years is out of the Book, for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery: but no Receipt lieth in the case of a common Recovery, for that he who recovers cannot put out the Termor. As to that which my Brother Clark hath said, That the bargain and sale in this case is not any forfeiture, but when the bargain and sale is en­rolled, then it is a forfeiture; I am not of such Opinion: for although that the Enrolment be of Record, yet the Deed is not of Record; for against a Deed enrolled, a man may plead Infancy, although none can plead Non est factum. Also he held, That although by the bargain and sale, and the Enrolment of it, the Bargainee had not a fee, for by such act the Reversion is not removed; yet by the Recovery, and the Execution of it, the Bargainee hath gained a fee out of the Lessor, for the Recovery is to the use of the Bargainee, against whom it was had. It hath been objected, that here is onely a Voucher, which paradven­ture was lawfull in this case, by reason of a warranty paramount, or of a Release or Confirmation with warranty: and two Cases have been vouched to that purpose, viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe, voucheth a stranger, the Demandant counterpleads the Voucher, which is found for him, he in the Reversion hath no remedy but a Writ of Right; so if the Vouchee had entred into the warranty, and lost, &c. As to that book, we ought not to conceive, That every Case reported in our books is Law; but let us observe, of what autho­rity that case is; truly it is the conceit of the Reporter himself, for he puts the Case, and resolves the case, but no Iudge or Serjeant is na­med in the case, &c. The other case is 5 E. 4. 2. b. Note by Heydon clear­ly, If my Tenant for life voucheth a stranger, who entreth into the warranty generally, and doth not know how to bar the Demandant, the Tenant shall recover in value, and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion; as a Re­lease to the Tenant for term of life shall enure to him in the Reversion: But that is but the Opinion of one Serjeant, &c. But I answer to these books, If the demandant in such recovery hath a good Title, so as the Tenant or the Vouchee, as Heydon saith, do not know how to bar the Demandant, there such Voucher of a stranger is no forfeiture, nor such Recovery suffered upon it, for against his Will, volens nolens, he suffered it: but if the Tenant hath good matter to bar the Deman­dant, and no good cause of Voucher, nor any warranty, as the matter is in the case of a common Recovery, there the Voucher of a stranger, or suffering of a Recovery, is a forfeiture of his Estate. And here in our case if the Demandant hath not any Title, the Tenant or Vouchee hath not any warranty; but the Tenant might have barred the De­mandant if he would: And he said, That the Voucher onely doth not make the forfeiture, but rather the recovery; for when Iudgment [Page 66] is given, and Execution is had, then the Fee is plucked out of the Reversioner: vide 6 R. 2. If Tenant for life claimeth a Fee, the same is a forfeiture: but here Sir William Pelham hath done more, for he hath gained Fee by the Iudgment, therefore à fortiori it shall be a for­feiture. But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture, and what not: 5 Assis. 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion, supposing that the Tenant for life held of his Lease; the Tenant confessed the Action, upon which Iudgment is given; B. enters, and his Entry adjudged lawfull, for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion: and there it appeareth, that such Recovery by Covin is but an aliena­tion, and without any strength of a Recovery. And he cited many other cases cited before by Altham: 14 E. 3. Recept 135. where Te­nant for life pleads in chief, and prays in aid of a stranger, where he might bar the Demandant, and would not, the same is a forfeiture: Also 2 E. 3. 2. and 27 E. 3. where Tenant for life, in a Quid juris clamat, attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land, the same was a forfeiture; and yet the Attorn­ment doth not devest the Reversion out of the Lessor: 50 E. 3. 7. and 8. Land was given by Fine in tail, the Remainder over to a stranger in fee, the Donee took a Wife and died without issue, the Wife accepted Dower assigned by a stranger, he in the remainder brought a Scire fa­cias against the Wife; she is Tenant in Dower of the assignment of a stranger, and pleads to the Title; the Demandant recovereth, she hath lost her Dower, for she hath not pleaded as she ought, being a particular Tenant, &c. H. 4. Tenant for life loseth his Land in a Re­covery against him against his Will, and thereupon brings Quod ei de­forceat, and declares upon an Estate-tail, and recovers, the same is a forfeiture, because he hath challenged a higher Estate than he had. 5 H. 5. Tenant for life joyns the Mise upon the meer right: 2 H. 6. Lessee for years being ousted, brings an Assise, and recovers: 1 H. 7. Accepts a Fine of a stranger upon condition come ceo, &c. all these are forfeitures. In the principal Case here, the Tenant who suffers his Recovery doth not plead at all to defend the Right: but whereas he might have barred the Demandant, he giveth strength to his preten­ded Title, and makes it a perfect Title; and by suffering this Reco­very and Iudgment to pass upon it, he hath taken the Reversion out of the Lessor to whom he owed Fealty, and therefore he shall forfeit his Estate. And without any doubt it is apparent to the Court, that the Demandant in this Recovery hath not any Title, but the Recove­rors in such cases are but as Assignees or Purchasors, which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Re­coverors, &c. As to the inventing of Recoveries, it was a necessary de­vice, for it was to take away Estate-tails, which were the causes of great mischiefs and inconveniencies in this Realm: and there was great reason for it; for Tenant in tail might by the common Law alien his Lands post prolem suscitatam, and now he hath an Inheritance, and may do Waste, But he was so restrained by the Statute of West. 2. that all the Realm, and the Subjects in it, were inveigled thereby; Ioyntures of Wives, Leases of Fermors, Mortgages to Creditors, Statutes, and other Assurances, were defeated by the deaths of Te­nants in tail, which was both against the common Law, and also a­gainst all Conscience. These matters coming to the knowledge of the Iustices, and the mischiefs thereupon following being very frequent, and it appearing that the Tenant in tail was a dangerous fellow, and that there was no safe dealing with him, they took consideration of them: and considering also with themselves, That Lineal Warranty and Assets, and Collateral Warranty without Assets, did bar the [Page 67] Entail, upon this consideration they grounded the practice and usage of common Recoveries. So as by that means Tenant in tail, hath Potestatem alienandi, as he hath at the Common Law; and by this means, right was done to the Common Law because its authority was restored; and thereby injury was done to no man: But as for Tenant for life, he never had Potestatem alienandi. And as to that which hath been said, That the recovery shall stand in force untill af­ter the death of Tenant for life; and in our Case here, Tenant in tail is alive; Truly, if the Law should be such, great mischiefs would follow: For then great Iointresses, the Widows of great persons, having assurances to them of great and stately Houses, and of Lands furnished with Timber, of great yearly value, might suffer such Re­coveries; and so having plucked the Fee out of the Heirs, might commit waste, and the same should be dispunishable, which would be an intolerable mischief; and so he concluded, that the suffering of a Recovery was a forfeiture, and Iudgment, Trin. 21 Eliz. was given, and entred accordingly.

XC. Noon's Case. Trin. 31 Eliz. In the Exchequer.

DEBT was brought in London, against one as Executor, and upon fully administred pleaded, it was found for the Plaintiff, who assigned the same to the Queen, whereupon a Scire facias issued out of the Exchequer against the Defendant, into the County of Dorset, The Serhiff retorned Nulla bona, &c. which Scire facias was upon a Constat of goods in another County; It was agreed by all the Ba­rons, that the Debt was well assigned to the Queen: And also that the Scire facias might issue forth of another Court, than where the Re­cord of the Iudgment remained; and that upon a Constat of goods, in another County than where the Writ is brought, or where the party is dwelling, he may well have a Scire facias in another County. But the Retorn was challenged, because contrary to the verdict: As in a Re­plevin, No such beast, is not a good Retorn, but Averia elongata; or Nullus venit ex parte querentis ad monstrand. averia: And here the She­riff might have retorned, Devastavit, which well stands with the Ver­dict, 5 H. 7. 27. But as to that, it was said by the Barons, That it is true, that the Sheriff of the County where the Writ was brought, is concluded by the Verdict, to make any retorn contrary to it; but the Sheriff of another County shall not so be; but the Sheriff of the County where the Writ is brought ought to retorn Devastavit, &c. and thereupon the Plaintiff shall have Process into another County; But the Question farther was: If a Scire facias upon Testatum shall issue into another County, before that the Sheriff of the County where the Writ is brought, had retorned a Devastavit? for some conceived, That a Devastavit where the Writ was brought, ought first to be re­torned, and then upon a Testatum, Process should issue forth into any County within England; But others were of opinion, That without a Devastavit retorned upon a Testatum, Process might be sued forth im­mediately into any other County. Williams said, If I recover goods by Action brought in Midd. I may upon a Testatum, have a Capias into any foreign County.

XCI. Western and Weild's Case. Trin. 31 Eliz. In the Exchequer.

IN a Writ of Accompt brought in London, the Defendant pleaded, Ne­ver his Receiver, &c. which was found for the Plaintiff, and Iudge­ment given, that the Defendant should accompt; Afterwards the Defendant brought his Writ of Privilege; and if the same should be allowed after Iudgment? was the Question: Coke, It shall be al­lowed, for the Defendant hath not surceased his time. This Iudge­ment to accompt is not properly a Iudgment, for no Writ of Error lieth upon it before the accompt be ended: Manwood, Regularly, after Iudgment, no privilege shall be allowed, but that is to be intended of a Iudgment ended; but here, notwithstanding this Iudgment, the Action is depending, and therefore he conceived that the privilege should be allowed in this case. It was objected, That then the Plain­tiff should be at great mischief, for he should lose the advantage of his Trial; for he must begin again, and plead again, and have a new Trial. Clark, the Plaintiff shall have benefit of his former Trial by way of Evidence.

XCII. Brian and Cawsen's Case. Trin. 27 Eliz. In the Common-Pleas. Rot. 1353.

3 Len. 115.IN an Action of Trespass by Brian and his Wife, and others, against Cawsen; That William Gardiner was seised in Fee, according to the custome of the Manor of C. of certain Lands, and surrendred them to the use of his last Will; by which he devised them in this manner; i. I bequeath to John Th. my House and Land in M. called Larks and Sone: To Steph. Th. my House and Land, called Stokes and Newmans, and to Roger Th. my House and Lands, called Lakins and Brox. Moreover, If the said John, Stephen or Roger, live till they be of lawfull age, and have issue of their bodies, lawfully begotten, then I give the said Lands and Houses to them and their Heirs in manner aforesaid, to give and sell at their pleasure; but if it fortune one of them to die without issue of his body, lawfully begotten, Then I will that the other brothers, or brother, have all the said Houses and Lands in manner aforesaid: and if it fortune the three to die without issue, in like manner, Then I will, that all the said Houses and Lands be sold by my Executor, or his As­signs, and the money to be given to the poor: The Devisor dieth; John, Stephen and Roger are admitted according to the intent of the Will, Ro­ger dieth within age, without issue, John and Stephen are admitted to his part, John comes of full age, and hath issue, J. and surrenders all his part of the whole, and his Estate therein,, to the use of Stephen and his heirs, who is admitted accordingly; Stephen comes of full age, John the father dieth, Stephen dieth without issue, John the son, as cosin and heir of Stephen is admitted, according to the Will, and afterwards di­eth without issue, The Wives of the Plaintiffs are heirs to him, and are admitted to the said Lands, called Larks and Sone, and to the moye­ty of the Lands, called Lakins and Brox, parcell of Lands where, &c. by force whereof they enter into all the Lands where the Trespass is done, and it was found, That A. sole Executor, died intestate, and that Caw­sen the Defendant is cosin and heir of the Devisor, and that he as heir, entred, and did the Trespass. First, it was agreed by all, That by the first words of the Will, the three Devisees had but for their lives. But [Page 69] Fenner and Walmesley, who argued for the Plaintiffs conceived, that by force of the latter words (scil.) If the said John, Stephen and Roger, live till they be of lawfull age, and have issue of their body, lawfully begotten, Then I give the said Lands and Houses to them and their heirs, in manner aforesaid, &c. that they have Fee; and the words (in manner aforesaid) are to be re­ferred, not to the Estate which was given by the first words, which was but for life, but to make them to hold in severalty, as the first Devise would, and not jointly, as the words of the second Devise do purport: And Fenner said, It had been resolved by good opinion, That where a Fine was levied to the use of the Conusee and his Wife, and of the heirs of the body of the Conusor, with divers Remainders over, Proviso, That it should be lawfull to the survivor of them, to make Leases of the said Lands in such manner as Tenant in tail might make by the Sta­tute of 32 H. 8. Although those Lands were never devised before the Fine, yet the Wife survivor, might demise them by force of the Proviso, notwithstanding the words in manner, &c. So if Lands be given to A. for life, upon condition, the remainder to B. in manner aforesaid; these words, in manner aforesaid, shall refer unto the Estate for life limited to A. and not to the Condition, nor to any other collateral matter. The words, If they live untill they be of full age, and have issue, are words of Condition, and shall not be construed to such purpose, to give to them by implication an Estate tail; for the words subsequent are, That they shall have to them and their heirs, to give and sell at their pleasures, by which it appeareth, that his intent was not to make an Estate tail; for Te­nant in tail cannot alien or dispose of his Estate, &c. And as to the lat­ter words, And if it fortune they three to die without issue, &c. these words cannot make an Estate tail, and the express limitation of Fee in the former part of the Will, shall not be controlled by implication, out of the subsequent words: As if Lessee for fourty years deviseth his term to his Wife for twenty years, and if she die, the remainder of the term to another, although she survive the twenty years, she shall not hold o­ver. And here, the second sale appointed to be made by the Executor, shall not take away the power of the first sale allowed unto the Devisees after issue. Snagg and Shuttleworth, Serjeants, to the contrary: And they said, that the Defendant hath right to two parts, for no Inheri­tance vesteth in the Devisees until full age and issue; and because two of the Devisees died without issue, they never had an Inheritance in their two parts, and so those two parts do descend to the Defendant, as heir to the Devisor, no sale being made by the Executor; These words, If John, Stephen and Roger, are to be taken Distributive, viz. If John live, &c. are to be taken Distributive (scil.) If John live untill, &c. he shall have Inheritance in his part, Et sic de reliquis: As if I have right unto Lands which A. B. and C. hold in common, and I by Deed release unto them all, the same shall inure to them severally, 19 H. 6. And here, these latter words, If they three die without issue, it seems to be but an E­state tail: See to that purpose, 35 Ass. 14. 37 Ass. 15. For a man cannot declare his intent at once, but in several parts; all which make but one Inheritance, and so it is said by Persay, 37 Ass. 15. we ought to adjudge upon all the Deed, and not upon parcell. And see Clatche's Case, 16 E­liz. Dyer 330, 331. And it was said, That if I give Lands to one and his heirs, as long as J. S. hath heirs of his body, the same is a Fee-sim­ple determinable, and not an Estate tail, Quaere of that. Then here the Fee-simple is determined by the death of the Devisees without issue, and therefore the Lands shall revert to the heir of the Devisor, especi­ally there being no person in rerum natura, who may sell, for the Execu­tor before any sale by him made, died intestate; and if he had made Executors, yet the Executor of the Executor could not sell, which see, 19 H. 8. 9, 10. And afterwards, the Iustices resolved, That no Estate tail is created by the Will, but that the Fee-simple is settled in them [Page 70] when they came to their lawfull age, and have issue; so as the resi­due of the Devise is void: And Iudgment was given for the Plain­tiffs.

XCIII. Hil. 29 Eliz. in the Common Pleas.

THE Case was this, (viz.) By the Civil Law the Parson ought to have his Tythe by the tenth Ridg: And in a great Field there was Corn upon the Arable Land,Roll. 646. and Grass upon the Head Lands; and in a Suit for Tythe Hay, and Rakings of the Corn, the Defendant did prescribe, to pay the tenth Shock of Corn for all the Corn, Hay and Rakings of the Corn; and the Prescription was challenged not to be good, for it is upon the matter a Prescription of Non Decimando, for the tenth Shock is due of common Right, and so nothing is for the Hay and Rakings: It was holden by all the Iustices, That for tying of Horses upon the Head Lands, and ea­ting of the Grass and Corn together, that the Prescription was good: But the doubt was, when the Grass is made into Hay, which is upon the Head Lands, If it be a good Prescription then, and dis­charge for the Hay, because it is another thing than what is growing upon the Land? But in the end all the Iustices agreed, That by the Civil Law (ut supra) the tenth Ridg is due for Tythe Corn;1 Cro. 446. 475. therefore for the reaping, binding and shocking, it is a reasonable Prescription, that the party shall have the Hay upon the Head Lands in recompence of the said other things, and the Hay upon the Head Lands is but of little value.

XCIV. 29 Eliz. Challoner and Bowyer's Case.

IN Assise of Novel Disseisin by Challoner against Bowyer, it was gi­ven in Evidence at the Assise, That William Bowyer was seised, and having issue two Sons, and two Daughters, devised his Lands to his younger Son in tail, and for want of such issue, to the Heirs of the body of his eldest Son; and if he die without issue, that then the Land shall remain to his two Daughters in Fee: William Bow­yer dieth, the younger Son dieth without issue, living the eldest Son, having issue him who is Tenant in the Assise: It was mo­ved, That notwithstanding that by way of Grant, the Son, li­ving his Father, cannot take as heir, i. by limitation, as Heir to his Father, because that none can be said or held Heir to his Father as long as the Father be alive; yet by way of Devise the Law shall favour the intention of the party, and the intent of the Devisor shall prevail. But all the Court was strongly against it, and held, that as well in Case of Devise, as of Grant, all is one. Whereupon the Tenant produced Witnesses, who affirmed upon their Oaths, That the Devisor declared his meaning concerning the said Will, That as long as his eldest Son had issue of his body, that the Daughters should not have the Land: but the Court utterly rejected the matter; and Iudgment was given for the Plaintiff.

XCV. the Countess of Linnox Case. 29 Eliz. In the Exchequer.

IN this Case it was said by Manwood chief Baron, That whereas the Cistercians, &c. had a Privilege, that they should not pay Tithes for their Lands, quas propriis manibus excolant, but their Fermors should pay Tithes: and now by the Statute of 31 H. 8. they are dissolved, That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were: for the Queen cannot excolere; ergo, her Fermors shall be discharged: and so long as the Queen hath the Freehold, her Fermors shall have such Privilege, although she Leaseth for years, or at Will: But if the Queen granteth over the Reversion, then the Fermors shall pay Tithes.More Rep. 915.

XCVI. Golding's Case. Mich. 29 Eliz. In the King's-Bench.

IN an Action upon the Case against Gloding, the Case was;1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole, being Tenant for life by Devise of Lands, Leased the same for years, to begin after her death; and afterwards made another Lease, 18 Octob. for twenty one years to the same Lessee, to begin at Michaelmas before; and the Pleading was, Virtute cujus quidem dimissionis: and the Lessee entred Crast. Sanct. Mich. which was be­fore the making of the Lease: And upon the Grant of these two Lea­ses, the consideration of Assumpsit was grounded in an Action of the Case thereupon, and six hundred pounds damages given: And now this was moved in Arrest of Iudgment.

Coke for the Plaintiff; Where two Considerations are laid down in the Declaration, although that the one be void, yet if the other be sufficient, the Action upon the Assumpsit lieth, and damages shall be taken accordingly. And the Grant upon the Assumpsit was, That both the Leases should be assigned to the Defendant; and the Plain­tiff hath declared accordingly, although that one of the Leases be void: And the Agreement was, That the Plaintiff should assign totum statum, titulum, & interesse suum quae habet in, &c. It appears here in the Pleading, That the Lease was made the eighteenth of October, and the Lessee did enter, and was thereof possessed, Crast. Mich. which was before, and so the Lessee then entering was a Disseisor, But by Coke, the same is not a Disseisin, although that the Lessee entreth before the Lease made; for there was a communication of a Lease, although the Lease was not made be­fore the eighteenth of October; and peradventure it was by assent of the Lessor, in which case it cannot be a Disseisin: but be it a Dis­seisin, yet in as much as he hath assigned all his interest, quod ipse tunc habuit, the Consideration is answered; and he hath also delivered both the Indentures of Demise, and hath granted all that which he might grant; be such Grant void or good, it is good Consideration enough as to us.

Egerton, Solicitor, contrary; In every Action upon the Case upon a Promise, there are three things considerable, Consideration, Promise and Breach of Promise; As to the Consideration in our Case, the Grant of the Lease, which is to begin after the death of the Lessor, is merely void. And as to the second Consideration, it appeareth, That the Lessor at the time of the making of the [Page 72] Lease had but a Right, for he was disseised; for he who was after­wards the Lessee entred before he had any Lease made unto him; and so here is not any consideration to ground the Assumpsit upon: But admit that there be a consideration, yet the Action doth not lie: For 19 Eliz. a difference was taken by the Iustices, (scil.) When in the Declaration in an Action upon the Case, two or more considerations are laid, and are not collateral, but pursuant: As if I owe you an hundred pounds, and I say, That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you: If you bring an Action upon the Case against me for the hundred pounds, and lay in your Declaration both considerations, although you do not pay me the ten pounds, yet the Action lieth: But where the considerations are not pursuant, but meerly collateral, and do not depend the one upon the other, As in consideration that you are of my Councel, and you shall ride with me to York, I promise to give to you an hundred pounds; there both considerations ought to be performed, or otherwise the Action doth not lie: and so here in the principal Case; the considerations being collateral, they both ought to be performed. Afterwards, upon consideration had of the Case by the Court, Iudgment was given for the Plaintiff: and it was said by Coke, That there was not any Disseisin in the Case, but he who entred was Tenant at sufferance, by reason of the prece­dent communication.

XCVII. Curtise and Cottel's Case. Trin. 28 Eliz. In the King's-Bench.

THE Case was this, That one Bonham was seised of a Manor, within which there were divers Customary Lands demisable by Copy for three lives: The Lord of the Manor did demise some of those Lands to three Sisters, Habendum to them for their lives successive, for the Fine of 100l. by them paid; and they being seised accordingly, the eldest Sister, who was Tenant in possession, took to Husband one Chapman; after which the said Lord by Indenture leased the same Land to the eldest Sister, the Remainder to the Husband, the Re­mainder to the second Sister, and no Agreement was made thereunto by the second Sister by Deed, before or after the making of the In­denture; but four days after the Lease made she agreed to it in the Country, and then took to Husband Curtise, and they entred, clai­ming the said Land, upon which Entry the Action was brought: The point was, That when the Lease by Indenture was made to the eldest Sister, at which time no agreement was made by the second Si­ster who was in Remainder; yet when after she agreed, If by that Agreement her Right to the Copihold were extinct, or not? so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture, the second Sister might come and claim her custo­mary interest, as it were paramount the interest of the eldest Sister, which she claimed by the Indenture.

Glanvil, The customary interest of the eldest Sister is extinct upon this matter, by reason of her agreement to it afterwards. Where an Estate is given to one by a lawfull act, it shall be adjudged in the party before agreement, until it be disagreed unto; and if the party do once agree, he cannot afterwards disagree unto it. If an Estate be lawfully made to a Copyholder but for years, his whole interest in the Copyhold is determined: and that a Freehold cannot be waived in pais, but onely [Page 73] by matter of Record: See 13 R. 2. Joynt-tenants 13. A Charter of Feoffment was made to four, and Seisin was delivered to three of them in the name of them all; and afterwards the fourth Feoffee came and saw the Deed, and said, That she would not have any thing in the Lands, but altogether disagree unto it; and it was, that that disagreement by word in pais did not devest the Freehold out of her: But when the party doth disagree in a Court of Record, there the Freehold is out of the party ab initio; and if he once a­gree, he shall not disagree afterwards. See Littl. Sect. 648. Te­nant in tail enfeoffeth his Son and Heir apparent, and another, and Livery and Seisin is made to the other, according to the Char­ter of Feoffment, in the name of the Son also, the Son not know­ing of it, nor disagreeing to the Feoffment; the other Feoffee dieth, the Son neither occupies the Lands nor takes the profits of them during the life of his Father; the Father dieth, the same is a Remitter to the Son, because the Freehold is cast upon him, and there is no default in him, and therefore he is remitted: But up­on an illegal act is otherwise; for if A. disseise B. to the use of C. in such case nothing is in C. before an express Agreement, for the Dis­seisin was an unlawfull act. And in this Case at Bar, it doth not appear that the eldest Sister is dead, and therefore the Right of the second Sister cannot now come in question.

Shute, Iustice, If the second Sister, at the time of the making of the said Indenture, had agreed unto it, then it had been a full extiguish­ment, but by an agreement afterwards it is not good.

Gawdy, Iustice, The remainder is in consideration of the Law; and the Estate of the first Sister is not so determined, that any can take advantage of it; for the Lord, against this Lease by Deed indented, cannot enter, or claim any thing: and the second Sister, although she hath not agreed, yet she cannot enter during the life of her elder Sister, for her Remainder takes effect in possession after the death of her said Sister. But if any should take advantage of it, it should be the Lord, if his Deed indented did not stand against him. And afterwards Iudgment was given against the younger Sister.

Clench, Iustice, was of another Opinion, viz. That the Entry of the younger Sister, notwithstanding that her elder Sister was alive, was lawfull: Quaere of that.

XCVIII. Wellock's Case. Trin. 28 Eliz. In the King's-Bench.

A Parson, in consideration of twelve pence, granted to one of his Parishioners, That he should hold his Lands discharged of Tithes: It was holden by the whole Court, That the same was no good Discharge, being without Deed, as a Lease of his Tithes. But it was holden, If the Parson afterward sueth the Parishioner for Tithes against the same Grant and Promise, the Parishioner may have an Action upon the Case against the Parson upon his Promise, although he cannot plead the Grant as a Lease.

XCVIII. Lawson and Hare's Case. Trin. 28 Eliz. In the Common Pleas.

3 Len. 178. A Replevin by Lawson against Hare, who avowed for a Leet Fee; and shewed how that he, and all those whose Estate he hath in the Hundred of C. have used to hold a Leet, once every year; and that at each time, when such Leet hath been holden, the In­habitants within the said Leet have used to pay to the Lord of the Leet 16 d. for a Leet Fee; and that the Lords of the said Leet have used to distrain for the same: and shewed farther, that 5 Julii 26 Eliz. he held there a Leet, &c. The Plaintiff replied, Absque hoc, that they had used to distrain; and issue being joyned, it was found for the Defendant. It was moved in Arrest of Iudgment, because, that the Defendant had entitled himself to a Leet, by an Estate in the Hundred, and did not shew a Deed of it, which was said, he ought to have done; as is 11 H. 4. 48. And of such opinion was Anderson and Windham, Iustices. Periam and Rhodes Iustices, contrary, as this case is, and that the Avowant need not shew a Deed, But if the hundred it self had been in question, then a Deed ought to have been shewed; But here the Avowant en­titles himself to one thing, (scil.) a Leet, and a Leet Fee, by reason of the Hundred, and it is sufficient for him to say, That he is seised of the Hundred, &c. although it be by disseisin: for if he hath possession of the Hundred, be it jure, vel injuria, he shall have also all things incident thereunto, for the possession of the Hundred draws to him the Leet, and the Leet, the Leet Fee. But admit in this case a Deed ought to be shew­ed,1 Cro. 217. 245. we are to see if the same be helped by the Statute of Jeofailes, which extends to defaults in form in Writs, Original or Iudicial Counts, De­clarations, Plaints, Bills, &c. 18 Eliz. cap 14. and such defects are thereby helped. And by Anderson, although that the Avowant be Quasi an actor, yet in Rei veritate, he is Defendant: For although that he is to have retorn of the Cattel, if it be found for him, yet he who fueth the Replevin is the Plaintiff, and if the Defendant will justifie the distress, and not avow, he is meerly Defendant, and not a Plaintiff, or Actor, no more than in a Pra [...]cipe quod reddat, The Tenant voucheth and reco­vereth in value, he cannot be said Plaintiff, or Defendant, and the A­vowant cannot be Nonsuit, as the Plaintiff. But Windham and Periam were of a contrary opinion; For Avowry is in lieu of a Declaration, and the Plea of the Plaintiff to the Avowry, is not called a Replication, but a bar to the Avowry. But admit the Avowry be within the Sta­tute, then if the Statute of Jeofailes there extend to help it? And Ander­son conceived that it did: But the Plaintiff might have demurred up­on the Avowry for the not shewing the Deed, and Iudgment should have been given for him; but when he hath traversed, and the issue found against him, now it shall be intended, that Avowant hath a Deed, although he hath not shewed the same. Another Exception was taken, because it is said in the Avowry, That the said Leet was holden, 5 Julii, and then it was void: For the Statute of Magna Charta, cap. 35 requires, that Leets be holden within one Month after Michaelmas and Easter; But that Exception was not allowed: For by Anderson, Windham and Rhodes, by force of the Prescription, The Lord might hold his Leet what day he pleased, and that his Liberty is not restrained by the Statute; and such is the common experience: for the same Statute provides for it, (scil.) Quod quilibet habeat libertates suas quas habuit, & habere consuevit tempore Regis H. avi nostri, vel quas postea perqui­siret: And by Rhodes, the said Statute doth not extend but to the Sheriffs Towns, and not to other Leets, which see Br. Leets, 23. [Page 75] upon the Case of 8 H. 7. 1. which was affirmed by him to be good Law; Contrary by Periam, but he granted, that if a Leet hath used to be holden at one day certain, other than that which is limited by the said Statute, the same may so continue, notwithstanding the Statute, for such Liberty is saved by the Statute. And by Anderson and Rhodes; If the King grant to one a Leet to hold Semel quolibet anno, and doth not say, Ad libitum of the Grantee, yet the Grant is good, and the Grantee may hold it at what day he will.

C. Goore and others against Dawbeny. 13 Eliz. In the Exchequer-Chamber, Error.

A Writ of Error was brought in the Exchequer-Chamber by Goore and Goore, Swinnerton and Tedcastel, against Dawbeny, of a Iudge­ment given against them in the Court of Exchequer, in an Action upon the Case, in the nature of a Conspiracy brought by Dawbeny, &c. who declared, That Goore and Goore, were joint Merchants of a stock of many wares, in moyeties transported in Barbary, and Swinnerton and Tedcastel were their Factors, and Dawbeny and the Goores were also joint Merchants intire of Merchandizes transported, &c. And the said Swinnerton and Tedcastel were their Factors therein; and that was to merchandize for two years; and shewed farther, That the said Plain­tiffs did conspire against the said Dawbeny (See the Declaration in the Number Roll, for I could not take it in brief.) Coke of Councill with the Plaintiff assigned the Errors; because Dawbeny in his Decla­ration hath declared, that they were joint Merchants (scil.) the now Plaintiffs, and have conspired against him, and hath not shewed the place where they were joint Merchants, or where they were made joint Merchants, and that is issuable, although it be not the principal thing in the Declaration; for that is the fraud: As where Debt is brought for Rent reserved upon a Lease for years the principal mat­ter is the Debt, and the principal Issue is Nihil debet; Yet the De­mise is issuable, and Non dimisit is a good Plea: And here the Defen­dant by the Plea of Not guilty, hath not lost the advantage of Excep­tion aforesaid. And he cited a great Case lately adjudged betwixt Stansam and Matthew, in an Action upon the Case, conceived upon the Trover of a Bond and the Conversion of it to his use; The Defen­dant pleaded, Not guilty, and it was found against him; And because in the Declaration there was not any place of the Conversion, Iudg­ment was stayed. Here in the Declaration are two things, First, the Conspiracy, Secondly, the execution of it,, for the one without the other will not maintain the Action, but here the Conspiracy is not pursued, nor executed according to that which is laid to be conspired. The Conspiracy is laid, That the Factor upon his account deman­ded 4000 l. of Barbary money, per nomen bona & denariorum summas, and the Execution is laid, That he demanded in allowance of wares delivered to Isaac Abess: And he took a general rule, That a Com­mander shall never be charged, but where his Commandment is strictly and precisely pursued. Barbary money is included in this word Bona, for it is not current in England: See as to the pursuing of the Commandment; Sanders and Archer's Case, Plow. 18 Eliz. 437. And in our Case, he not onely puts the thing, but also the person, for the Conspiracy is that he demanded allowance for goods delivered to Isaac, and his four sons, for Isaac. In the one Case it is pretended, That Isaac and four sons are Debtors; and in the other Case Isaac onely: Also here Dawbeny hath allowed and accepted the accompt of the Factors, against which he cannot have this Action; for it is [Page 76] ignorantia crassa, idque facti, quae non excusat: Also upon such incertain demand as is laid in the Declaration, Dawbeny was not holden to make allowance: i. for so much wares upon a certain bargain made with I­saac; and that was not a lawfull demand, and upon such uncertain de­mand, he was not bound to make allowance; Et hoc modo est ignoran­tia juris quae non excusat omnino. Also here Swinnerton onely accompts and demands allowances, and Swinnerton onely was not Factor, but also Tedcastel, and therefore Dawbeny was not bounden to allow that accompt to Swinnerton, no more than to a mere stranger: And also Dawbeny alone was not to make allowance, for the two Factors were accomptable to him, and to Goores also. And so allowance by one of them to whom they are accomptable, is not good. One Executor (where the power is committed to two) sells the Land, the sale is void, and two joint Attorneys, &c. one onely can doe nothing: And here in this Declaration, it is many times alledged, that they were conjunctim Mercatores, conjunctim Factores; But I confess, that one joint Factor, with the express consent of his companion, may accompt alone; and so of the other, one may by express consent take an Accompt onely. One Factor is no Factor where there are many joint Factors; and in our Case, the two Goores and Dawbeny saw the accompt, but Dawbeny onely allowed of it, and that is not good: As if two Arbitrators are, and one onely makes the award, although both hear the matter. 14 E. 3. Fitz. Acc. 72. That the one Accomptant cannot accompt without his com­panion; but there Parn saith, That it had been adjudged, 6 E. 3. that the one might accompt without the other: See 41 E. 3. 3. & 9. Tam­worth's Case. Tanfield contrary: As to the first Error, it is but convey­ance and matter of inducement to the fraud and conspiracy, which is the principal point of the Action; and therefore needeth not to be so pre­cisely alledged: and also by the general issue, they have passed the ad­vantage of it, and all the special matter of the Count is contained in the general issue; for not guilty, goes to all, and includes the whole. Also upon the matter, the Iury hath found that they were joint Mer­chants; and although they were joint Factors, and the one onely hath accompted, yet the same accompt is good enough, for it was made with the consent of the other, as appeareth by the Declaration. Conspirave­runt, & agreaverunt, that Swinnerton in his accompt, peteret allowance, &c. so there was consent to take the accompt, &c. and 6 E. 3. it is adjudged ut supra. And that the one joint Factor may accompt without his compa­nion, is the Law of Merchants; for Factors are oftentimes dispersed, so as they cannot be both present at their accompts, and so it hath been heretofore allowed in the King's-Bench: And as to that that Dawbeny onely hath given allowance to this accompt, the same is good enough: If I promise to two to doe any act, the one of them may discharge me from it, and that by word, for it is but a personal thing: Two joint-te­nants of a Manor grant the Stewardship thereof to one, and 20 l. per ann. for the exercise of it; if the one discharge him, it is a good discharge as to the service, but yet he shall have his Fee: If the Lord of the Ma­nor grant the Stewardship thereof to another, taking 10 l. per ann. of the issues and profits of his Court there for his Fee: and afterwards the Lord dischargeth the Steward, the same is void; for it is a disad­vantage to the Steward, for he cannot have his Fee, if no Courts be holden; but if the Fee be limited to issue out of Lands, there such dis­charge is good; for there the Steward shall have his Fee although that no Courts be holden there, See 18 E. 4. 8. to that purpose. Egerton, Solicitor, to the contrary; although (as hath been objected) the mat­ter of joint Merchant be but matter of inducement, it is notwithstan­ding material, and without it the Action will not lie: In Debt, upon Arbitrament, The Plaintiff in his Declaration, ought to shew the sub­mission; and although the Defendant pleadeth, Nihil debet, yet if the [Page 77] place of the submission be not shewed in the Declaration, all is naught; for although that it be but inducement, yet it is a material inducement; for if no submision, no award, and if no award, no Debt, and then no cause of Action. The Case of 14 E. 3. cited before, there the Accomp­tants by their Deed, or jointly, or severally accomptable at the pleasure of him to whom, &c. Also, because it is set forth in the Declaration, that they were joint Merchants of wares, adventured into Barbary, for the space of two years; the Factor in praying of allowance, ought to shew what wares were adventured into Barbary within the said two years. Conspiracy is a thing odious, and ought to be directly proved; and it is not reason, that that which he himself hath once allowed, he himself shall after defeat it, as here he attempts. And he relied much upon the variance between the Conspiracy and the execution of it mo­ved before by Coke, where by the Conspiracy, Isaac is made the Debtor, with his four sons; and in the Execution, Isaac is made the onely Deb­tor, and to that point, he vouched the Case, 3 & 4 Ph. & Ma. betwixt Brown and Nevil, That an award was to be performed,Brown and Nevil's Case. (scil.) an award made between Joh. Brown, for, and in the behalf of John Moore on the one part, and R. Nevil on the other part; and did not shew that Moore made the submission, and for that cause it was holden naught: For Moore was a principal person in the award, and Brown but a servant, &c. So in our Case for Isaac. Popham, Attorney General, in an Action up­on the Case, The Plaintiff declares, Quod cum the Defendant was indebted to the Plaintiff in 20 l. he promised to pay to the Plaintiff 20 l. Here it needs not, that the Plaintiff shew in his Declaration, the place or time in which the Defendant became his debtor, for the promise is the principal matter, and the other matter is but induce­ment: So if A. in consideration that I at his request have married his daughter, promised to pay to me 100 l. In an Action upon the Case brought by me upon this promise, it is not necessary that I shew the place where I married his daughter. In all personal things, where two are chargeable to two, the one may satisfie it, and one may ac­cept of satisfaction, and bind his companion, and yet the one cannot have an Action without his companion, nor both onely against one, 18 E. 4. 3. Two joint tenants of a Manor have one Bailiff of it, the one of them assigns Auditors to the Bailiff, who accompts, and is found in arrearages, the same is a good accompt, and it is holden there, that both, &c. may have Debt upon the arrearages of the accompt ta­ken by the manner. And if one may assign Auditors, he may also take accompt, and discharge the accomptant against his companion. And he conceived, That this allowance of the accompt by Dawbeny, did not exclude him of his Actions, but rather gave him cause of Action, Nam Laesus non esset, nisi credidisset; and the Bailiff of my Husbandry, who bargains and sells for me, if upon his accompt to me, he alledgeth and surmiseth, that he hath sold my Cattel to one who is decayed, and upon that surmise I allow his accompt; afterwards, Re comperta, I shall have an Action of Deceit: And in this very Case at the Bar, it was holden in the King's-Bench, That Dawbeny, notwithstanding his allow­ance of this false accompt, should have his Action, &c. Note that af­terwards, viz. Trin. 32 Eliz. The Iudgment given for Dawbeny was reversed.

CI. Sir William Waller's Case. Trin. 31 Eliz. In the Exchequer.

IN this Case it was moved by Winter, 3 Len. 259. 4 Len. 44. Post 87. That if one hath Iudgment in Debt, and upon that, within the year and day, sues a Capias ad satisfaciendum, although that he doth not prosecute the same by the space [Page 78] of two or three years, yet when he pleaseth he may proceed thereupon, and he shall not be put to a Scire facias; for a Writ of Execution once sued forth, shall be a continual claim, and the party shall never be put to a Scire facias; and of such opinion was Philips.

Manwood, I grant, that if one hath sued forth a Writ of Execution, and that be continued by Vicecomes non misit breve, for two or three years, yet the Plaintiff may proceed thereupon, and shall not be put to a Scire facias: but if such Writ be sued forth, and not continued, but discontinued by a year and a day, he shall be put to a Scire facias, for it is negligence of the Plaintiff of not continuing of it, which within the year and day he might without Order of the Court, but after the year not by any Order of the Court, &c.

CII. Griffin's Case. Trin. 31 Eliz. In the Exchequer.

IT was holden in this Case, That if Lessee for years of a Messuage grants totum Messuagium suum, the Grantee hath but at Will; but if he grant all his Interest and Estate in such a Messuage, then the whole Lease passeth: and so it was said to have been lately adjugded in the Case of one Winnibank in the King's-Bench.

CIII. Seckford and Wolverston's Case. Psach. 26 Eliz. In the King's-Bench.

THE Plaintiff being Bailiff of the Liberty of Esheld, in the Coun­ty of Suffolk, the Sheriff of the said County directed a Warrant unto him to arrest the Defendant upon a Latitat retornable in the King's-Bench; by force of which the Defendant being arrested, became bound in the Obligation upon which the Action is brought; the Con­dition of which is,1 Cro. 672. 776. Owen Rep. 40. That if the Defendant personally appear in the King's Bench at Westminster, and there to answer, &c. It was moved, that the Obligation was void by the Statute of 23 H. 6. For the form which the said Statute prescribes for Obligations to be taken by the She­riff, is according to these words, Appear at the day contained in the Bill, Writ or Warrant, and in such place, &c. and that all Bonds taken in other form shall be void. As to the words of surplusage [personally] the Iustices were of opinion, that the Obligation was well enough, notwithstanding that because, as the Case is, the appearance of the Defendant ought to be in person upon a Latitat, for the Defendant is supposed to be in Custodia Mariscal. And so it hath been adjudged in the Common-Pleas, where the appearance of the party arrested is de jure personal, &c. contrary where personal appearance is not requisite. As to the other matter [and there to answer] Wray put a difference, where the words are [there to answer] that the Bond is well enough, for it is no more in effect, but that he shall appear eo animo ut responde­at. But if the words had been [Appear and Answer] the same is a void Condition, for it may be that the Plaintiff will never declare a­gainst him: But Gawdy and Ayliff, Iustices, were of a contrary opi­nion, and that the Bond was void by reason of the words aforesaid: but the Court would not give Iudgment against the Plaintiff, but ex gratia Curiae suffered the Plaintiff to discontinue his Action.

CIV. Partridg and Pool's Case. Pasc. 26 Eliz. In the King's-Bench.

IN an Action of Trespass by Partridg against Pool, 3 Len. 97. the Plaintiff did suppose the Battery at D. in the County of Midd. The Defendant justified, by reason of an Assault at S. in the County of Glocester, abs­que hoc that he beat the Plaintiff at D. in the County of Midd. upon which Traverse the Plaintiff did demur in Law.1 Cro. 842. It was argued by Popham, Attorny-General, That the Traverse of the County is good; and he put the Case 21 H. 6. 8, and 9. In Trespass of Battery at D. in the County of York, the Defendant doth justifie by an Assault at London, in such a place in such a Parish, and the hurt which, &c. absque hoc, that he was guilty de aliqua transgressione in Com. Ebor. upon which issued a Venire facias into Yorkshire, and as the book is, the Tra­verse to the County was taken with great deliberation, &c. prout, &c. See also 22 E. 4. 39. And the Traverse de jure ought to be allowed, for the Iury of Midd. are not bounden to find the Assault in the County of Glocester: See 2 Ma. Br. Jurors 50. In Actions upon transitory matters, although they be laid in Foreign Counties, yet the Iurors, if they will, may give their Verdict, but they are not bounden to it.

Egerton, Solicitor, contrary; And he put a difference, where the justification is local, and where transitory: As in false Imprisonment the Defendant justifies, as Sheriff, the taking of the Plaintiff by vir­tue of a Capias directed to him at D. within the County of G. where the Plaintiff declares of an Imprisonment in another County, there the Traverse of the County is good; for the Defendant could not take the Plaintiff by force of the said Process in any other County, than where he himself is Sheriff, and so the justification is local: 11 H. 4. 157. But in our case the matter of the justification is merely transitory. And at last, after many motions, it was adjudged, That in the prin­cipal Case the County was not Traversable; and so Iudgment was given for the Plaintiff; Gawdy, Iustice, being of a contrary Opinion: but by Wray clearly, The Iurors are bounden, upon pain of Attaint, to take notice of such a transitory thing done in another County: which see 2 Ma. Br. Attaint 134. 9 H. 6.63.

CV. Daw's and Mollins's Case. Pasc. 26 Eliz. In the King's Bench.

IN an Attachment upon a Prohibition by Daws against Mollins, for that the Defendant traxit Querent. in Curiam Christian. for Tithes of great Trees, sub nomine sylvae ceduae: The Defendant pleaded, that the Loppings for the Tithes of which he sued, were the Loppings of Trees, called Asp, Beech and Oak, de stipitibus prius succisis crescentes: and also for Hornbeams, Maples, Hazels, &c. The Plaintiff, as to the Asp, Oak, and Beech, did demur in Law; and as to the residue, he pleaded, that with part he mended the Hedges, and the rest being de minimo valore, were bound up with the boughs of the Oak, &c. into Faggots; upon which the Defendant did demur in Law. It was ar­gued by Egerton, Solicitor, on the part of the Plaintiff; and he held, That a Wood of common Right ought not to pay Tithes, not because the soil in which it groweth yields other Tithes of the Herbage, but be­cause non renovantur in annum; and therefore at this day no Consulta­tion shall be granted for Quarry, Stone, and Coals: But after [Page 80] came the Statute of Sarum, (vide F. N. B. 51. h.) by which it was a­greed, coram Concilio Regis in Parliamento apud Sarum, Quod Consulta­tiones fieri debeant de sylva cedua, eo non obstante quod non renovantur per annum: and see to that purpose the Register 49. Et ulterius, super hoc facta fuit quaedam Consultatio pro Abbate de Notley de sylva cedua: which Statute was afterwards expounded by the Statute of 45 E. 3. cap. 3. not to extend to great Wood of the growth viginti annorum, vel amplius, but onely to such Wood which is called Sylva Cedua. And at last, after many motions, it was ruled, That because the Defendant had not shewed, that the Trees, (scil.) Oak, Ash, and Beech, were not be­fore cut within twenty years before the last succision, of which the Tithes are now demanded, Tithes shall not thereof now be paid. And as to the other point, That the Hornbeams, Sallows, &c. did grow sparsim amongst the Oaks, and the Owner felled the whole Wood, and caused them to be promiscuously cut into Faggots, and bound up in Faggots together, and the most part of every Faggot was Oak, and the residue was of little value, so as the severance of the Sallows, &c. from the Oak, &c. would not quit the charge; in such case Tithe shall not be paid: but of the other part, If the most part of the Wood be Sallows, &c. and here and there sparsim groweth an Oak, &c. and the Owner cuts down all the Wood, and makes Faggots as before, Tithes in such case shall be paid of them.

CVI. The Queen and Lord Lumley's Case. Trin. 26 Eliz. In the Exchequer.

Hob. 304. 3 Len. 101.BEtwixt the Queen and the Lord Lumley, it was moved in the Exche­quer; Queen Mary seised of the Rectory of D. granted advocationem Ecclesiae de D. If now by this Grant the Advowson passeth as now dis­appendant, or the Rectory it self passeth as appropriate? or nothing at all passeth? was the Question. And by Manwood, chief Baron, the Advowson doth not pass, but doth remain appropriate; as it was be­fore; for the Church, as it was appropriate by a judicial act, so with­out such an act it cannot be disappropriate: And he said, That by the Grant of the Advowson, the Rectory did not pass; for by the Appropri­ation the Advowson is gone, and is not in esse, and so by consequence cannot be granted: And it is not within the Statute of 4 and 5 Ph. and Ma. of Confirmation of Grants of the King; for the said Statute doth onely help misrecital, misnaming, mistaking, &c. but here there is no such thing in rerum natura, as the Patentee pretendeth to be pas­sed by the Patent: and if it were in the case of a Subject, nothing would pass;Sand's Case. as it was adjudged in one Sand's Case, 11 Eliz. And he said, that at this day a Parsonage may be disappropriated, but that ought to be by a judicial act, as by Presentment, and not by any other private act of the Proprietor:Roll. 240. Tit. Appro­priat. And so he said, a Church was disap­propriated by the Lord Dyer, by Presentment, which of late he made unto it.

CVII. Herring and Badlock's Case. Trin. 26 Eliz. In the King's Bench.

3 Len. 94. A Replevin was brought by Herring against Badlock, who avowed for damage-feasant, and shewed, That the Lady Jerningham was seised of such a Manor, whereof the place where, &c. and Leased the same to the Defendant for years, &c. The Plaintiff said, That long [Page 81] time before King Henry the eighth was seised of the said Manor, and that the place where, &c. is parcel of the said Manor demised and de­miseable by Copy, &c. And that the said King, by such a one his Ste­ward, demised and granted the said parcel unto the Ancestor of the Plaintiff, whose Heir he is, by Copy in Fee, &c. and upon that there was a Demurrer, because that by that bar to the Avowry the Lease set forth in the Avowry is not answered, for the Plaintiff in the bar unto the Avowry ought to have concluded; And so was he seised by the Cu­stome, until the Avowant praetextu of the said term for years entred: And so it was adjudged.

CVIII. Moor and Sir John Savage's Case. Trin. 28 Eliz. In the King's Bench.

IN an Action upon the Case by Moor against Sir John Savage and his Wife, for that the said Lady had reported, That Moor was a lying Knave, and a perjured Knave; The Defendant justified, That where an Estate for life absolute was devised to the said Lady by her former Hus­band, the Plaintiff had deposed, that the said Land was devised to the said Lady, if she kept her self sole:Postea 102, 103. To which the Plaintiff replicando said, Of his own wrong without such cause: Egerton, Solicitor, did demur upon it; for he said, The Plea goeth to all the justification be­fore; for where part of a Plea, (scil.) the justification is matter of fact, and part is matter of Record, there, Of his own wrong, &c. is no good Plea, but there ought to be a special Traverse, absque hoc, that he so deposed, or absque hoc, that the Devise was absolute: And this Plea here, Of his own wrong, &c. goes to matters in fact onely, and such which lie in the notice of the Iury: See 5 H. 7. 6. Although that divers matters are alledged in the bar, yet this Plea, Of his own wrong without such cause, &c. extends to all, where no matter of Re­cord is alledged in the Plea: As in false Imprisonment, a Capias is directed to the Sheriff, being Defendant, to arrest the Plaintiff, in such case such general Plea is not good; but there he may plead Nul tiel Record: See also 13 H. 7. 3. 21 H. 6. 5. And here a principal matter in the justification is matter of Record, and therefore such a Plea here is not good. Altham contrary, If the principal matter in such justification be matter of Record, then such a Plea is not suffici­ent; but if the matter of Record be but inducement, then the Plea is good enough: And he vouched 45 E. 3. 7. In Trespass the Defendant saith, That he is Forester of the said Forest of B. and at a Swanmoot it was presented by the Foresters, Verderors, Regardors, and Agis­tors, That the Plaintiff had taken Deer in the said Forest, upon which the Defendant came to the Plaintiff, and prayed him to find Pledges to answer before Iustices in Eyre, &c. and he refused so to do, for which cause he kept the Plaintiff until he made agreement, and de­manded Iudgment, if any wrong, &c. and the Plaintiff replicando said, Of his own wrong, &c. and the issue was accepted of by the Court; yet he said the Presentment in the Swanmoot was not matter of Record, but onely inducement, and the Request to find Sureties, which he would not, for which cause he took and imprisoned him, the same was the principal matter, and but matter in fact; and therefore he said, that the Plea was good; and he said that in this case the Oath is not on Record. And Coke said, That in the Cases put by Altham, Of his own wrong without such cause, is a good Plea, with an absque hoc unto the matter of Record: See the Book of Entries 320. see 30 H. 8. Action upon the Case 104. without that, that he swore modo & forma: It was adjourned.

CIX. Firrell and the hundred of B's Case. Trin. 28 Eliz. In the Common Pleas.

IN an Action upon the Statute of Hue and Cry by Firrell against the Hundred of B. The Defendants pleaded, Not guilty, and in Evidence, the Plaintiff, to prove that he was robbed, as he had declared, offered to the Iury his oath, in making good his Declaration, which Anderson and Periam Iustices, utterly refused. But Windham affirmed, That such an oath had been accepted in the Case of one Harrinton, where the Plaintiff could not have other Evidence to prove his Cause, in respect of secrecy; For those who have occasion to travel about their business, will not acquaint others what money, or other things they have with them in their journies: And we see, that in some causes, the Law doth admit the oath of the party in his own cause; as in Debt, the De­fendant shall wage his Law: Periam, That's an ancient Law, but we will not make new Presidents, for if such oath be accepted in this Case, by the same reason in all cases where is secrecy, and no external proof, upon which would follow great inconveniencies: and although such an Oath hath been before accepted of, and allowed here, yet the same doth not move us; and we see no reason to multiply such Presidents. The Declaration is, that the Plaintiff was robbed of 10l. de denariis ip­sius querentis; and upon the Evidence it appeareth, That the Plaintiff was the Receiver of the Lady Rich, and had received the said money for the use of the said Lady, and exception was taken to it by Shuttleworth, but it was not allowed; for the Plaintiff is accomptable to the Lady Rich the said money. And it was agreed, that if he who was robbed, after he hath made Hue and Cry, doth not farther follow the thieves, yet his Action doth remain.

CX. Large's Case. Mich. 29 Eliz. In the King's-Bench.

3 Len. 182.THE Case was, A. seised of Lands in Fee, devised the Lands to his wife, until William his son should come to the age of 22 years, and then the Remainder of part of the Lands, to his two sons, A. and John, The Remainder of other part of his Lands, to two others of his said sons, upon condition, That if any of his said sons before William should come to the age of 22 years, shall go about to make any sale of any part, &c. he shall for ever lose the Lands, and the same shall remain over, &c. And before his said son William came to the age of 22 years, one of the other sons Leased that which to him belonged, for 60 years, and so from 60 years to 60 years, until 240 years ended, &c. Bois, A. and J. are joynt-tenants of the Remainder, and he said, That the opinion of Audley, Lord Chancellor of England, is not Law, (scil.) where a man deviseth Lands to two, and to their heirs, they are not joynt-tenants, as to the survivor, but if one of them dieth, the survivor shall not have the whole, but the heir of his that dieth shall have the moy­ety: See 30 H. 8. Br. Devise 29. And he said, That this Lease, although it be for so many years; is not a sale intended within the Will, and so is not a Ioynture. 46 E. 3. One was bounden, that he should not a­lien certain Lands, and the Obligor did thereof enfeoff his son and heir apparent, the same was held, to be no alienation within the Condition of the Obligation: Of the other side it was argued, The remainder doth [Page 83] not vest presently; for it is incertain, if it shall vest at all; for if Willi­am dieth before he cometh to the age of 22 years, it was conceived by him, that the Remainder shall never vest, for the words of the Will are, Then the Lands shall remain, &c. 34 E. 3. Formedon 36. Land is de­vised to A. for life, and if he be disturbed by the heir of the Devisor, that then the Land shall remain to D. Here D. hath not any remainder, be­fore that A. be disturbed; It was farther argued, that here is a good Condition, and that the Devisee is not utterly restrained from sale, but onely untill a certain time, (scil.) to the age of William of 22 years. And it was said, that this Lease is a Covenous Lease, being made for 240 years, without any Rent reserved: As such a Lease made for 100 years, or 200 years, is Mortmain, as well as if it had been an express Feoffment, or Alienation. But it was said by some,Antea 36, 37. that here is not any sale at all, nor any lease; for the Lessor himself hath not any thing in the Land demised: As if a man disseiseth a Feme sole, and seaseth the Lands, and afterwards marrieth the disseisee, he shall avoid his own Lease, 5 E 3. One was bound that he should not alien such a Manor, the Obligor alieneth one Acre, parcell of it, the Obligation is forfeit, See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years, and so from 100 years to 100 years, untill 800 years be encurred, the same is Mortmain, Vide Stat. 7 E. 1. Colore termini eme­re, vel vendere. And in the principal Case, if the Devisee had entred into a Statute to the value of the Land leased, by the intent of the Will, the same had been a sale; and such was the opinion of the whole Court: and by the Court, the word in perpetuum, shall not be referred to the words precedent, but unto the words following; (scil.) in perpe­tuum perdat the Lands. And if a custome be in the case that the Infant of the age of 15 years may sell his Lands; if he make a Lease, the same is not warranted by the custome: And afterwards it was adjud­ged by the whole Court, that the Lease made as before, was a sale within the intent of the Will of the Devisor.

CXI. Brooke's Case. Hill. 29 Eliz. In the King's-Bench.

APpeal of Burglary was brought against Brooke, who was found guilty; and before Iudgment given, the Plaintiff died, And now Egerton moved that Iudgment should be given for the Queen up­on that verdict, or at least that the Declaration in the Appeal should be in lieu of an Indictment, and that the Appealee be thereupon arraigned and put to answer the same. For if the Appellant had been Nonsuit, or released, the Defendant should be arraigned at the suit of the Queen. Coke, God hath now by the death of the party, delivered the Defendant: and it is not like, where the Plaintiff releaseth, for there it is the default of the Act of the party, but here it is the Act of God; and he held it for a rule, That where auterfoits acquit is a good Plea, there also auterfoits convict shall be a good Plea: And it was holden in Sir Tho. Holcroft's Case,Sir Thomas Holcroft's Case. That where the party is convic­ted at the suit of the Queen, there the Appeal doth not afterwards lie. Wray, If the Appellant dieth before Verdict, the Defendant shall be arraigned at the suit of the King; But if his life hath been once in jeo­pardy by Verdict, he conceived, that it shall not again be drawn into danger; and some were of opinion that the Defendant should be ar­raigned at the suit of the Queen upon the whole Record, and plead auterfoits acquit, and that they said was the surest way.

CXII. Ognel and Paston's Case. 29 Eliz. In the Exchequer..

1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel, upon an Escape, and the Case was this: Francis Woodhouse was bound in a Recognizance to the said Ognel; Whereupon Ognel sued forth a Scire facias, and upon two Nihils retorned, had Iudgment, and upon that a Levari facias, and then a Capias ad satis­faciendum, upon which Paston the Defendant, a Sheriff of Norfolk, to whom the Capias was directed, took the party, and afterwards suffered him to escape. The Defendant pleaded, That before the said Capias, the said Francis Woodhouse was committed to him, and in his ward con­tinued for Felony; and after the Capias, was endicted thereof, and ar­raigned, and found guilty, after which he escaped; And all this was found by special verdict: First it was argued, if upon a Recognizance acknow­ledged in the Chancery an Action lieth; and it was said by Bois, That it doth not lie in the mouth of the Sheriff to say, that this Capias doth not lie in the Case: As if a Iustice of Peace maketh a Warrant to a Con­stable, which Warrant is not good in Law, yet the Constable is not to examine that, or to dispute the validity of it, 5 H. 7. And a Capias hath lain in such case, and so it hath been the course for the space of 200 years: and he said, That although Francis Woodhouse was convict of Felony, yet the same is not any discharge of the execution, as 35 H. 6. 8. although the husband be attainted of Felony, yet he is not so dead in Law, but if the King pardon him afterwards, he shall be restored, and his wife shall have Dower; and if he be killed, his wife shall have an Appeal: 12 H. 4. My Villain is attainted, the same is no discharge of his villainage as to me; But if the King pardon him after, he shall be my Villain, 6 E. 4. 4. One is in Execution pro fine Regis, and afterwards is outlawed for Fe­lony, and hath his Charter of pardon for the Felony yet he remains in Execution for the interest of the party, for there the Execution is not extinct, but onely suspended. Godfrey contrary, Capias doth not lie upon a Recognizance; but if Debt be brought upon a Recognizance, and the Plaintiff recovereth, then a Capias lieth; which see 14 Eliz. Dyer 306. Puttenham's Case. 2 H. 4. 6. In Dower the Demandant recovereth her Dower, and damages, and prayeth a Capias ad satisfaciendum for the da­mages, but she could not have it; for no Capias lieth upon the original; and to the same purpose, see 8 R. 2. Fitz. Execution, 164. 15 H. 7. 15. Capi­as pro fine lieth for the King, where no Capias lieth in the Original; but no Capias ad satisfaciendum for the party; no Capias in Debt before the Statute of 25 E. 3. and see the Stat. of West. 2. cap. 18. cum debitum fu­erit recognit. si in electione sequent. execut. habere per Fiere facias, or Elegit, therefore no other manner of Execution; for the Statute hath provided ut supra. And he said, That debt doth not lie upon a Statute Merchant, or Staple: See 15 H. 7. 16. Another reason why a Capias doth not lie in such case, is upon the words of the Recognizance, Et nisi fecerit, tunc concedit, quod summa praedict. levetur de bonis & catallis, terris & tenemen­tis; Ergo, not of the body. And when Woodhouse was convict of Felo­ny, the Queen had an interest in his body, and upon the pardon, the Execution which was suspended during the conviction, is now recei­ved: And he confessed the case of Villainage; that during the attain­der, the Lord cannot meddle with the Villain in the presence of the King, See 27 Ass. 49. and see 2 H. 4. 65. A. was condemned to B. in cer­tain damages upon an Action of Trespass brought by B. against A. and A. was committed to Newgate, in Execution upon a Capias ad satisfaci­end. and afterwards was arraigned of Felony, and thereof attainted, [Page 85] and committed to the Ordinary, as Clark, Attaint. And the Iustices commanded the Ordinary, That after that the prisoner had made his purgation, that he should not let him go at large, but should conduct him to the prison of Newgate again: And there is a Quaere made by the Reporter, If after purgation the Ordinary might suffer him to escape; and if he at whose suit he was condemned in Trespass shall have debt a­gainst the Ordinary for such escape. At another day the matter was argued by Coke for the Plaintiff, at the Common Law, No Land was subject to Execution, i. no Lands of the Debtor himself; but yet the Lands of the Debtor being descended to his heir, should be chargeable to the Obligee of the Debtor, in which he and his heirs were bound, and that seemed to be very strange; and he conceived, That in that point, custome and usage had encroached upon the Common Law: The Sta­tute of West. 2. c. 13. gave Elegit of the moyety of the Lands; but yet there was no Capias in Debt before, 25 E. 3. cap. 17. before which Sta­tute, it was a general Rule, That no Capias lay at the Common Law, but where the King was to have a Fine, See 35 H. 6.6. At the Com­mon Law Capias did not lie but where the Action is vi & armis, or that the King is to have a Fine; For there was Outlawry at the Common Law in such case. It will be objected, That the Statute of 25 E. 3. which gave Capias in Debt, doth not extend to a Scire facias upon Reco­very; That such Process shall be made in a Writ of Debt, as is used in a Writ of Accompt; and here is no Writ of Debt, but a Scire facias onely: If my Debtor upon an Obligation cometh without a Writ, and confesseth the Debt, I shall have a Capias against him, and yet the same is not in a Writ of Debt: Ergo, so in case of Recognizance. Where a Statute speaks precisely of a Writ Original; yet oftentimes by Equity it shall extend to a Scire facias, and other judicial Process: As upon the Statute of 25 E. 3. cap. 7. which enables the Incumbent to plead in a Quare Impedit. It shall extend to a Scire facias upon a Re­covery in a Quare Impedit, 46 E. 3. 13. And in our case a Capias doth not lie by the Letter, yet it lieth by Equity. And he said, That Statute which helps the Subjects to get their debts and rights, are to be, and have been taken beneficially and liberally expounded, in advantage of the Creditors. And see 48 E. 3. 14. Where a Scire facias is sued upon a Re­cognizance, a Capias doth not lie, but there it is holden, that in a Scire facias, upon a Recovery in debt, a Capias lieth. And as to this Capias, the Sheriff is but the minister to the Court, and he is not to controll the Court, but to accept of the same, as the same is directed to him. It is a common learning in our Law, That although the Court doth proceed inverso ordine, yet it shall not be utterly void, 36 H. 6. 34. Iudg­ment given at the Common Law of Lands within the five Ports; for the five Ports in times past, were parcel of the Crown: But of Lands in Wales it was otherwise before the Statute of 27 H. 8. by which Wales is united to the Crown. And although that the Capias erronice Emana­vit, the same is but erroneous, and so voidable, and not void, for Error may be as well assigned in the Executione judicii, as in redditione judicii, 16 H. 7. 6. Outlawry without an Original Writ, is not void, but voidable, 2 R. 2. and the reason thereof is given, 11 H. 7. in Collins's Case, but they are Iudges of the cause, although that their procee­dings be not according to Law. But the Sheriff, or any other stran­ger, shall not take advantage thereof, See 8 E. 4. 21 E. 4. and he cited to this purpose, 13 E. 3. Barre 253. The Iailor shall not take advan­tage of undue proceedings of the Auditors against an Accomptant; and he insisted much upon the Vsage and Precedents, and customs of Courts which are Laws in such cases. And although that by strict and precise rule of Law, a Capias doth not lie naturally nor properly upon a Recognizance, where the suit begins by Scire facias, yet because the usual practice, and common experience hath allowed of it, and ad­mitted [Page 86] thereof from time to time: It is safer to suffer a mischief to one, than an inconvenience to many. And although the Proverb, Exempla illustrant, non docent aut probant, may hold place in some arts and Sci­ences, yet in our Law, Examples are good arguments, 11 E. 4. 3. In the King's Bench, a man in custodia Marischalli, shall be put to answer a Bill, but in the Common-Bench, a man who is in the custody of the Guar­dian of the Fleet, shall not be put to answer to a Bill, and that is by reason of the several usages and customs in the said several Courts; so as custome and usage makes a Law in such case. 39 H. 6. 30. in a Writ of Mesne, The Iudges were clear of opinion, That the Plaintiff ought not onely to shew the Tenure betwixt him and the Tenant Pe­ravail, but also betwixt the Mesne and the Lord Paramount; yet when they had conferred with the Prothonotaries, and saw the Prece­dents of former times in such cases, They would not change the former courses, notwithstanding that their opinions were to the con­trary: So 2 H. 7. 8. The Venire facias is, 12 liberos & legales homines, and the Sheriff retorned 24, and holden good, by reason of the usual course of the Court in such cases; and yet in our Law, the number of persons is not material, which see in the Earl of Leicester's Case, 15 H. 8. but custome dispenseth with the same.

Atkinson argued the contrary; At the Common Law for Execution in Debt within the year, a Levari facias, and a Fieri facias lay; after the year the party was put to a new Original; and there was no Capias at the Common Law, but in cases of contempt, force, or other notable misdemeanour, untill the Statute of 25 E. 3. cap. 17. which gave it in Debt, Detinue, &c. And the Statute of West. 2. cap. 18. gave Fieri Facias and Elegit, but no Capias was given upon a Recognizance by any Statute, and he relied much upon the Book of 48 E. 3. before cited, the rule of which Book is, That in a Scire facias upon an Original in which a Capias lieth, the Scire facias shall follow the nature of the Original upon which it is founded: but where a Capi­as ad respondendum doth not lie, there not a Capias ad satisfaciendum, 34 H. 6. 451. In Debt against Executors, they appear and plead fully ad­ministred, and it is found against them, and Iudgment is given for the Plaintiff, who after the year sueth a Scire facias against the Execu­tors, and Execution awarded by default, and thereupon a Capias and Exigent: And that matter being shewed to the Court, a Supersedeas was granted, because the Capias improvide & erronice emanavit: for no Capi­as lieth against Executors where they plead, &c. although it be found against them, Ergo, neither a Scire facias grounded thereupon. And al­though the Stat. of 25 E. 3. gives a Capias in Debt, yet if Debt be reco­vered in a Justicies, a Capias doth not lie by the Equity of the said Sta­tute: and he relied very strongly upon Puttenham's Case, 13 Eliz. cited before. And as to that which hath been said, That notwithstanding, that the Capias was against the Law, and so his imprisonment by colour thereof wrongfully, yet, de facto, he was in Prison, and the Sheriff hath taken him, and he shall excuse himself in a false imprisonment brought; yet I say, That this erroneous Process appearing to you, you will not again err, by allowing these erroneous proceedings, but rather reform them: For the Sheriff himself, who is a stranger to the Re­cord, cannot have Error to reverse these proceedings, and so with­out remedy, unless the Court doth relieve him therein. And he said farther, That this Capias, Posito quod legitime emanavit, cannot fasten or work upon Francis Woodhouse, being imprisoned, and convict of Fe­lony; for being imprisoned, and restrained of his liberty, how can he (his restraint continuing) be de novo restrained before that he be enlarged and restored to his liverty? Nam omnis privatio praesuppo­nit habitum; and Ergo, imprisonment, liberty precedent. And so he concluded, That Francis Woodhouse, Neque de facto, nor de jure, was in [Page 87] prison: and that no Capias lieth in the Case, especially after the year, as here it was, and the party being convict and in prison, cannot be taken, &c. Manwood, If within the year a Levari facias, or a Fieri facias be sued forth and be retorned, not served, or that Vicecomes non misit Breve, and so the year passeth in the default of the Sheriff; yet the Plaintiff shall not be put to a Scire facias. At another day it was argued by Tanfield for the Defendant, That upon this Scire facias no Capias lieth, and then no lawfull Execution, and then no escape. Where there is no Capias in the Original, there is no Capias in the Execution, but here in our Case, there is not any Original, because it is a Scire facias upon a Recovery, Ergo, no Capias can be where there is not any Ori­ginal. As to that which hath been said, That the ancient Presi­dents and course in Cancel. is against us; be it so; yet the course in the King's Bench and Common Pleas is with us, That a Capias doth not lie in such case of Scire facias. And the Chancery as to the Common Law ought not to vary from these Courts, for one and the same Common Law ought to be in all the said Courts, of things of the Common Law, and the Presidents alledged of the other side are silent, and sleeping proceedings and presidents, Slips of Clarks, which were never drawn into question; the ancientest of which was hatcht but in the later part of the Reign of King H. 8. And if the Common Law doth not warrant such Executions, Truly the presidents cannot make such imprisonments lawfull without Act of Parliament. It hath been said, that Executions ought to be fa­voured, that is true, but also Liberty, to which the Law hath special respect: See the Statute of Magna Charta, Nullus liber homo capiatur, vel imprisonetur, nisi per legale judicium parium suorum, vel per legem terrae; and this is not Lex terrae, but usage onely: and Malus usus est abolendus, 26 Eliz. Error was brought upon a Iudgment given in Curia de Wood­stock, which is a Court of Record, and Error assigned, for that they had awarded Execution secundum consuetudinem Villae, against one who had bailed the Defendant without a Scire facias first sued forth against him, i. the bailee, and it was adjudged Error, and the custome could not maintain it, for the Bailee might have a release or other matter of discharge to plead: And he cited the Case of 13 and 14 Eliz. Dyer 306. That upon a Scire facias out of a Recognizance in Chancery, Iudgment was given for the Plaintiff, and the Warden of the Fleet was com­manded to detain the Conusor in his custody, in Execution for the Plaintiff, and afterwards the Conusor escaped, the Plaintiff not sa­tisfied, And it was holden no escape, for his body was not liable; in case of a Recognizance, to the Execution: and see also the book of Entries, 500 there is a Rule put, If the Recognizee will have execution within the year, he may have a Fieri facias, or Elegit, but not a Capias ad satisfa­ciendum. And he conceived; that this Process is not onely erroneous; but also utterly void: As a Capias in a Formedon, antea 77. contrary where in Debt a Capias is awarded after the year where it ought to be Scire facias, the same is but erroneous; for such Process lieth upon such Iudgment, if he had not surceased his time. Another matter he moved, because this issue is not well tried, for it was tried by Nisi prius out of the Exche­quer, and the Statute of West. 2. cap. 30. Mar. 14 E. 3. cap. 1. do not give Nisi prius in Causes out of the Exchequer but onely out of both Benches; but Causes out of the Exchequer are tried by Commission; and here their Commission was insufficient; for it was directed, Chr. Wray and Williel. Periam, without saying, Et eorum alteri; so as it was joynt, and not several, and Wray at the time of the trial, was as the Parliament at London, and so the cause was tried before Periam onely, and therefore coram non Judice. At another day, The Case was argued by the Barons of the Exchequer. And Clark Baron, conceived that the Plaintiff ought to recover, and he said, That upon the escape, the Common Law gave an Action upon the Case against the Sheriff; and the reason why the [Page 88] Sheriff shall be charged, is, that one cannot be in Execution but once; and then if the Sheriff should not be charged, the party Plaintiff should by negligence of the Sheriff lose his Suit, and also his Debt: And admit that a Capias doth not lie in the Case, yet the Execution by force thereof is not void, but voidable onely; and Error may be assigned as well in the Execution, as in the Iudgment; which see 17 Ass. 24. where the Recognizor in a Statute Merchant aliened the Land, and afterwards the Conusee sued forth Execution, so as the Land was ex­tended, supposing the payment, i. Solvend. 14 E. 3. whereas in truth it was 16 E. 3. and the Feoffee brought a Writ of Error thereupon, and it was allowed; but the Sheriff shall not take advantage of the same: And truly the common course is, That a Capias lieth upon a Recogni­zance: and 7 H. 4. 101. upon a Recognizance acknowledged for the Peace, a Capias lieth for the King: and a Recognizance is but an Ob­ligation of Record; and wherefore should not a Capias lie thereupon, as well as upon an Action brought upon an Obligation? The Statute of West. 2. cap. 45. Si recens sit Cognitio statim habeat Querens Breve de Ex­ecutione illius Recognitionis: and the Statute doth not speak in certain what manner of Writ, or what manner of Execution, therefore we ought to resort to the Common Law for it, as that is a Capias. Gent, Baron argued and agreed in every point with Baron Clark.

Manwood, chief Baron, argued, That the Plaintiff should recover; and he put the Case of Recognizance: The Plaintiff sueth two Scire facias's, upon which two Nichel's are retorned; and afterwards a Levari facias, and upon that also Nihil is retorned, and then issueth a Capias ad satisfaciendum for to take the said Francis Woodhouse, who then was in Prison for Felony, upon which Capias the Sheriff did arrest him, and he being afterwards convicted of Felony, escaped; upon this matter Debt is brought against the Sheriff. A Recognizance taken in the Chancery is a thing upon Record in a Court of Record, an Obligation of Record, and a Debt upon Record. It hath been objected, where no Capias lieth in the Process upon the Original, there no Capias lieth upon the Execution: but it is good to examine the Reason thereof; for Lex plus laudatur quando ratione probatur: The Capias upon a Recogni­zance is not by 25 E. 3. but by the common Law: for here is a Debt upon Record, wherefore shall not this body be subject to it, as well as in the case of a Debt upon a bare Obligation? I do admit the Rule, That where there is no Capias ad respondendum, there is no Capias ad satisfaciendum, but that ought to be intended in cases where there is an Original, and Mesn Process before Iudgment; but here is no Origi­nal, nor Mesn Process before Iudgment, ergo, our Case is not with­in the same Rule: But I will put a good Rule; It is Debt upon Re­cord, ergo a Capias lieth: In the King's Bench, If the Defendant comes in by Latitat, if the cause whereof the Action is brought be of impor­tance, he is to put in special Bail; and those who bail him shall be bounden in a Recognizance, &c. The Defendant is condemned in the Action: Now if the Defendant cannot be found, so as Execution may be sued forth against him, then a Scire facias shall issue forth against the Sureties which bailed him, and upon that a Capias, and that is very frequent therein use: So also is the course of the Court of Com­mon Pleas; ergo it shall be so in the Chancery in case of a Recognizance. If one be taken in Execution upon a Statute Staple, and sueth an Audita Querela upon a Release, or other matter, and be bound with Sureties in the double value, &c. to the King, and to the party: If he be condemned in the Audita Querela, &c. and cannot be found, a Scire facias shall issue forth against the Sureties, and thereupon a Capias. And this question, If the Capias in this case lieth, or not? is to be de­cided either by Audita Querela in the Chancery, or by Error in the King's Bench: for the said Courts have authority to affirm the proceedings, [Page 89] or to disaffirm them. And here the Question was, If Woodhouse were imprisoned or no? and not, if the Capias erronice emanavit or not? And he took a difference where Process is awarded out of a Court which hath not authority of the Principal cause; there it is coram non judice, and the Process is void; and if the Sheriff taketh the party by force of such Process, it is meerly void, and he a Trespassor; but contrary if the Court hath authority of the principal cause, there if the Process be misconceived, it is onely erroneous.10 Co. 76. An unskilfull man in Chancery makes an Appeal of Murther, retornable in the Common Pleas; and there an unskilfull Clark makes a Capias upon it, the same is coram non-judice, and not all together void: But if in a Writ of Entry, in the nature of an Assise, the Demandant hath Iudgment to recover Debt and Damages, and thereupon issueth a Capias, the same is not void, for it is but a misawarding of the Process, & provide emanavit. If out of the Common Pleas immediately a Writ issueth to the Sheriff of Chester, which is a County Palatine, where the King's Writ doth not run, the same is void, and false imprisonment lieth upon such a taking. A Formedon brought in the King's Bench, and upon that a Capias, is void, & coram non judice; and the Sheriff is bound to take notice of the Law in such cases, that those of the King's Bench have not authority to hold plea in real Actions. As to that, That Woodhouse was convict of Felony, the same shall not avoid the Execution; but I grant, that the King shall be satisfied before the subject, &c. And he relied much upon the said Case cited before, 13 E. 3. Bar. 253. as to the matter of the Ca­pias: 19 H. 9. In Escape the Defendant pleaded a Release of him who recovered to the Prisoner being in Execution, and it was holden no Plea. And in the principal Case Iudgment was given for the Plaintiff.

CXIII. Bridget Clark's Case. Antea 30, 31. Mich. 29 Eliz. In the Exchequer.

THE Case was, Clark was indebted to Archdel by Obligation, and afterwards delivered to Andrews certain Hogsheads of Wine to satisfie the said Archdel the said Debt: and afterwards the Obligation of Clark is assigned to the Queen for the Debt of Archdel: And if the property of the said Hogsheads of Wine were altered by the delivery of them to Andrews before the Assignment? was the Question. Egerton, Solicitor, The property is not altered, for the Bailor might have an Action of Account against Andrews before that he hath delivered the same over according to the Bailment: but if he hath delivered them over, the same is a good bar in an Account: But if one be accountable to me upon a Bailment, and afterwards I do require him to deliver the Goods over to A. the same is not in bar of Account, but is good in discharge of account before Auditors; for the same is matter after the Bailment, not upon the Bailment. If Goods be bailed to bail over upon a consideration precedent of his part to whom they ought to be bailed, the Bailor cannot countermand it; otherwise it is, where it is voluntary and without consideration; but where it is in consideration of a Debt not countermandable, contrary, if it be to satisfie the Debt of another. Manwood, Where the Debtor of the King is sufficient there a Debt due to him ought not to be assigned to the King, but onely where the Debt of the King is doubtfull, and that was the an­cient course; but now at this day multi videntur & habentur divites, qui tamen non sunt; and therefore omnis Ratio tentanda est, for the Recovery of the King's Debts. But as to the Case before us; The Wife is Executrix to her Husband, who was indebted to Archdel, and she de­livers the Goods to Andrews to satisfie Archdel, and all that is before the Assignment: And I am of Opinion, That the property of the said [Page 90] Goods is altered; for, as the case is, Andrews was Surety for Clark, and hath a Counter-Bond of Clark to save him harmless: If I borrow 100l. and deliver unto the Lender Plate for the security of it, the pro­perty general of it is in me, yet the Bailee hath a special interest in it, untill he be paid. If Goods be delivered to A. to pay unto B. A. may sell them. An Executor hath Goods of the Testators, and he with his own Monies payeth the Debts of the Testator, he shall retain the Goods, and the property is altered. And here in our case, Andrews may by virtue of this Bailment sell the Goods, and with the Monies arising thereof pay the said Archdel. And afterwards Iudgment was given accordingly, that the property of the Goods by the delivery over by Andrews was altered.

CXIV. Foskew's Case. Mich. 29 Eliz. In the Exchequer.

FRancis Foskew, seised of the Manor of Foskew in his Demesn as of fee in consideration of a Marriage to be had with Francis his Son with M. Daughter of Sir Edw. Huddleston, 9 Feb. 25. Feb. covenanted to levy a Fine of the Manor aforesaid; and that the said Fine should be to the use of himself and his Wife for their lives, and after their deaths to the use of the said Erancis their Son, and M. and the Heirs of their bodies begotten, with remainders over: The Fine was levied accordingly: afterwards, 19 Octob. 27 Eliz. Francis the Father ac­knowledged a Recognizance to the Queen, and died, his Wife died; and now this Manor is extended for the Debt to the Queen by force of the Statute of 33 H. 8. And now Coke came into Court, and prayed that the said Manor might be discharged of the Debt to the Queen, be­cause it is not chargeable by the said Statute; the words of whicih Statute are, All Manors, Lands, Tenements, &c. which hereafter shall descend, remain, or revert in Fee-simple, tail general or special, by, from, or after the death of any his or their Ancestor or Ancestors as Heir, or by Gift of his Ancestor whose Heir he is; which said Ancestor or Ancestors was, is, or shall be indebted to the King, or any other person or persons to his use, by Judgment, Recognizance, Obligation, &c. In every such case, the said Manors, &c. shall be charged, &c. This Statute was made for the bene­fit of the King in two points: 1. To make Lands entailed liable to the King against the issue tail for the Kings Debts in the cases afore­said, where they were not liable. 2. To make Bonds taken by the Officers of the King to the use of the King, as also of Statutes. We cannot deny but that we have Lands of the Conusor, and of the Gift of the Conusor our Ancestor, whose Heir we are, who was indebted to the Queen, and yet we are not within this Statute: Was or shall be in­debted, shall not be intended after the Gift made; for if he first convey his Land, and afterwards becomes indebted, the same is not within the Statute: and where a mischief is to be remedied by a Statute, the remedy in exposition of the Statute is to be applied according as the mischief doth require: [Shall be] is to be intended of future Debts after the Statute: and in our case, the Father was not Receivor, or other Officer to the Queen: And if this Statute should be so construed, the Father might take 10000 l. for the Marriage of his son, and assu­rance of Lands unto him; and then if he will acknowledge a Debt to the Queen, he should defeat the whole, which should be a very great mis­chief: The words are, [By Gift after the Debt acknowledged to the Queen.] And he cited the Case, 19 Eliz. Plow. 191. betwixt Ludford and Gretton, upon the Statute of 18 H. 6. the words of which are, [That whatsoever Warrant hereafter to the Chancellor of England addressed, the [Page 91] day of the delivery of the same it be entred of Record in the Chancery; and that the Chancellour make Letters Patents upon the same Warrants, bearing date the day of the said delivery in the Chancery, and not before: and all Letters Patents made to the contrary shall be void.] And the Case was, That a Warrant was directed to the Chancellour, for the making of Letters Patents, and delivered to him before the making of them, but the day of the delivery was not entred of Record, &c. And it was holden, that notwithstanding that, the Letters Patents were good; for the mischief at the Common Law intended to be reformed by that Act, was not the post-dating of the Letters Patents, but the ante-da­ting, and therefore that ought to be principally taken into considerati­on: which mischief being understood, the words of the said Statute are to be applied to it; ipsae etenim Leges cupiunt, ut jure regantur; i. with an Equity according to the Mischief, and not always according to the pre­cise words: and in that case it is sufficient if the Letters Patents bear date after, and not before the delivery of the Warrant, and that was the matter intended to be reformed. Also, as our Case here is, we are not within this Statute; for the words are, Of the Gift of his An­cestour, but here the Son hath not the Lands of the Gift of his Ance­stour, but rather by the Statute of Vses, and so he is in the Post and not in the Per, by his Ancestour; for here the Fine was levied to di­vers persons unto the Vses aforesaid: and here the Gift was not a mere gratuity to his Son, but in consideration that he should marry the Daughter of Sir Edw. Huddleston; and also the Father was the King's Debtor after the Gift, and not before.

Popham, Attorney-General, to the contrary: The letter of the Sta­tute is with us, for he comes in of the Gift of his Ancestour, who was indebted to the Queen: and although that the Gift was by way of use, yet the precedents in the Common-Pleas and other Courts are, That he may declare, of the Feoffment of such a one, although it was by way of use: and he said, If A. be bound to enfeoff B. of such Lands, if he maketh a Feoffment to the use of B. and his Heirs, he hath well e­nough performed the Condition: and if the Case should not be within the Statute, then should that branch of the Statute be idle, and to no purpose: For if the Ancestour be seised, and becometh indebted to the Queen, and after makes a conveyance ut supra, the same is provided for by the first branch of the Statute: For the Land is liable to the Re­cognizance or Obligation made to the King, and that they shall be as effectual as a Statute Staple; and reason requires, that the son, who comes in by mere gratuity of his Ancestour, should be charged: And it was a common practice before the making of that Statute, That the King's Officers would convey their Lands to their children, and then become the King's Debtors; for the remedy of which mis­chief the Statute was made, and the Statute of 27 Eliz. doth not re­spect the Heir, because he is Heir, but as a purchasor onely, and that upon good consideration: Coke, If any fraud can be found in our Case, then without doubt we should be within the Statute, but being upon good consideration, it is out of the Statute; nor was there any pur­pose in the father when he made the said Conveyance, to become the King's Debtor, or Officer to him, for if there were, then he is within the Statute, also the Gift had been a mere gratuity, &c. And after­wards, at another day, the Case was moved by Coke, and he said, That here is not any Gift, because it was in consideration of Marri­age, and then no gift, for it is an old Proverb, What is freer than gift? Egerton, The father giveth to his son and heir, the same is with­in the Statute, and yet here is consideration, (scil.) of blood; Coke con­trary, Where the father giveth to his younger son, or to his daughter, which is not his heir; and of that opinion was Manwood, chief Baron: And afterwards, (as Coke reported) the son and his Lands were dis­charged.

CXV. Amner and Luddington's Case. Mich. 26 Eliz. In the King's-Bench. Error.

3 Len. 89. 8 Co. 96. ERror was brought in the King's-Bench by Amner against Luddington, Mich. 25 and 26 Eliz. Rot. 495. The Case was, That one Weldon was seised, and leased unto Pierpoint for ninety nine years, who devi­sed the same by his Will in this manner; I bequeath to my Wife the Lease of my House during her life, and after her death I will that it go a­mongst my Children unpreferred. Pierpoint died, his Wife entred, and was possessed virtute legationis praedict. and took Husband one Fulshurst, against whom one Beswick recovered in an Action of Debt 140 l. upon which Recovery issued forth a Fieri facias, and upon that a Venditioni Exponas, upon which the Sheriff sold the said term so devised to one Reynolds: Fulshurst died, his Executor brought Error to reverse the Iudgment given against the Testator at the Suit of Beswick; the Wife did re-enter, and sold the Land, and died. Alice, an unpre­ferred Daughter of Pierpoint, did enter, and upon that matter found by special Verdict in the Common-Pleas, the entry of Alice was adjudged lawfull: upon which Iudgment Error was brought in the King's-Bench. And it was argued upon the words of the Devise, be­cause here the House is not devised, but the Lease it self, (scil.) all his interest in the thing devised: And it is not like unto the Case betwixt Welchden and Elkington, 20 Eliz. Plow. 519. where the Case was, That Davis being Lessee for years, devised that his Wife should have and occupy the Land demised for so many years as she should live; nor unto the Case of Paramour and Yardley, 21 Eliz. Plow. 539. for there the Lesse devised, That his Wife shall have the occupation and pro­fits of the Lands untill the full age of his Son: For in these two Ca­ses the Land it self is quodam modo devised, but in our Case all the Estate is devised, i. the Lease it self. And also in those two Cases a certain person is assigned and named in the Will, who should take the residue of the term which should be expired after the death of the Wife: But in the Case at Bar, there is not any person certain ap­pointed, &c. but the Devise, as to that, is conceived in general words, to Children unpreferred; therefore neither any possibility, nor Remainder in any person certain, therefore all the term is wholly in the Wife, and then she might well dispose the whole. But all the Court was to the Contrary, and that in this case the possibility should rise well enough to the death of the Wife, to that Daughter unprefer­red. Another matter was moved, If the said term, being sold in the possession of the Wife of the Devisor by force of the Execution afore­said; If now, the judgment being reversed, the sale of the term be al­so avoided? for now the party is to be restored to all that which he had lost. And it was argued by Coke, That notwithstanding the reversal of the Iudgment, the sale did stand good; for the Iudgment for the Plaintiff in a Writ of Error is, That he shall be restored to all that which he hath lost Ratione judicii praedict. and the Iudgment was, That the Plaintiff should recover 140 l. and therefore by the Iudgment in the Writ of Error he shall be restored to so much, but the mean act, (scil.) the sale of the Lease, shall stand, and shall not be defeated or avoided. As 7 H. 6. 42. A Statute Staple is bailed in Ouster le main, the Conu­see brings Detinue against the Bailee, and hath Iudgment, and re­covers the Statute, and upon that hath Execution: The Baylee brings a Writ of Error, and reverseth the Iudgment given in the Deti­nue, yet the Execution shall stand, and Audita Querela doth not lie for the Conusor: And see 13 E. 3. t. Bar. 253. Accountant found in Ar­rearages, [Page 93] committed to the next Gaol, escapes, and reverseth the Iudgment given against him in accompt, by an Ex parte talis, yet the Action upon the escape lieth; and the Court, as to that point, all a­greed; but that point did not fall in Iudgment; for by the sale no­thing shall pass, but the interest in praesenti, which was in the Wife of the Devisor; but the possibility to the children unpreferred, was not touched thereby; And afterwards the Iudgment was affirmed.

CXVI. Edwards and Halinder's Case. Mich. 36 Eliz. In the Exchequer.

RIce Edwards brought an Action upon the Case against Halinder, See the Case reported in Popham's Re­ports fol. 46. very short, but not with the Argu­ments. and declared, That whereas one Banister had demised unto the Plaintiff a Cellar, to have from week to week, Quandin ambabus parti­bus placuerit; And also whereas the said Banister had leased to the De­fendant a Shop, directly over the said Cellar, there the Defendant had laid so great a burthen upon the floor of the said Shop, that there by the said floor fell down, and brake certain vessels of the Plaintiff's full of Wine, by reason whereof the Plaintiff lost his Wine, to the value of, &c. to his damages, &c. The Defendant said, That before the charging of the floor, ut supra, The said floor had sustained greater weight; and farther, that the said Banister let unto him the said Shop for to lay there the weight of 30 Tun, and he had laid there but the weight of 12 Tun; and also that the Walls of the said Cellar are so weak, that the floor of the said Shop fell by reason thereof; upon which there was a Demurrer in Law. It was argued by Godfrey for the Plaintiff; Where injury or wrong is done unto any, the Law gives remedy to the party grieved; and although that the Shop was let un­to him to lay wares there, which he hath done, and that it was not his intent to surcharge the said Warehouse, although the event be contra­ry, yet forasmuch as by the laying of wares there, a wrong and damage follow to the Plaintiff, the Defendant shall be punished; for the rule is Sic utere tuo, ut alienum non laedas: If I have a house, and another buil­deth so high over me, that rain-water descends and falls from his house upon my house, an Action upon the Case lieth, See F. N. B. 184. So if by his building he stops my light, as it was lately adjudged in the King's-Bench, in the Case betwixt Bland and Mosely: See 6 E. 4. 7. & 8. Da­mages recovered for a wrong done against the will of the party: and see other Cases upon this Learning, 13 H. 4. t. Action upon the Case 48. The Plaintiff had sold certain trusses of Hay to the Defendant, with­in such a Meadow, to be carried away from the said Meadow within a certain time; but the Defendant let the Hay lie there without carrying the same away, so it putrified the Meadow, by reason whereof the Plaintiff lost the profit of his Meadow for a great time; and thereup­on brought an Action of the Case against the Defendant, and the Acti­on was adjudged maintainable: See 22 E. 4. 8. where the owners of the Plough in turning of the Plough, according to the custome in the common fields upon the Land of another; one of the Plough Cattel, against the will of the driver, takes a mouthfull of Grass, the same is justifiable, but if the driver of the Cattel suffereth the same to continue, an Action will lie against him: So 22 E. 4. 49. Where I am bound to enclose my Land against another, and in default of enclosure, the Cat­tel of the other escaped into my Land and Close, I shall not punish him; but if he after notice, doth suffer them to continue there, he shall be punished, although it be through my default: Also it is al­ledged in our Declaration, That the Defendant intending to hurt and spoil the Plaintiff's Wines, did lay such a weight, &c. And the [Page 94] Defendant answers thereunto. That the floor fell in default of repai­ring of the walls of the Cellar, or for the ruinousness of them, where he ought to have pleaded farther, Absque hoc, that the Shop was sur­charged with the intent to hurt the Plaintiff's Wines; In an Action upon the Case, upon a Trover, The Defendant pleads, that the goods whereof, &c. were pawned unto him for the security of certain money not yet paid, The same is no plea without saying farther, Absque hoc, that he did convert, &c. See 43 E. 3. 33. In an Action brought against a Smith, for his negligence in curing of a Horse which he took upon him to cure; the Defendant was driven to traverse, Absque hoc, that the Horse perished in default of his care: Dalton contrary, Where in doing of a lawfull Act, by a mishap a damage cometh to another, against the will of the doer, no punishment shall follow: See the Case cited by the other side in 6 E 4. 7. & 8. If he might have done more than he had done to have prevented the mischief, he should be punished; but if he could not have done more than he hath done, or otherwise than he hath done to pre­vent it, he is dispunishable, and he may, Uti jure suo, although it be to the prejudice of another: See 12 H. 8. 2. & 3. Harcourt's Case; If I cannot otherwise let the water out of my Land, I may justifie the letting of it in your Land which is adjoining, although that your Land be drowned thereby: Sometimes ignorance of the party shall excuse the offence: As if my Dog worry your Sheep, if I do not know of such ill quality in him, I shall not be punished for the same. And it doth not appear that the Defendant had notice of the ruinousness of the walls, al­though now it appeareth that they were ruinous, and for that cause the floorfell; for the Defendant said, That the walls were ruinous, in occultis & absconditis partibus ipsorum; And here needs not any Traverse: For it is confessed, That the floor of the Shop was surcharged, but the same is avoided and excused, because that the walls were ruinous, in occultis & absconditis ipsorum partibus; And forasmuch as our Landlord (who is al­so the Landlord of the Plaintiff,) hath let to us the Shop, to lay there the weight of 30 Tun, therefore the Defendant hath good right, as to such weight against the Lessor of the Plaintiff, and all others, claiming under him. And here the Plaintiff hath declared of a Lease from week to week, Quamdiu ambabus partibus placuerit, and hath not averred the conti­nuance of his Lease, &c. Godfrey, A Lease is made from year to year, ut supra, &c. The Lessor brings Debt for the second year, he need not to aver the continuance of the Lease; for when the second year doth begin, the Lessor cannot put him out that year; But we, upon the matter, have averred the continuance, for we have said, Et sic possessio­natus existens, &c. Manwood, The Declaration is, That the Defen­dant, Nequitur & malitiose intendens, &c. tantum ponderis, was laid up­on the floor, Ita quod vi ponderis dirupta fuit contabulatio: And the Plea of the Defendant is, Quod muri in partibus occultis & absconditis ruinosi fuerunt, &c. & ideo corruerunt. So as the Plaintiff speaks of the floor, and the Defendant of the walls, and so the Defendant doth not an­swer the Plaintiff; for the Shopman ought not to go into the Cellar, nor the Cellar-man into the walls. But Dalton said, That the Plea was, Quod diruptio & fractio contabulationis fuit ex eo quod muri ruinosi fuerunt in partibus occultis & absconditis. At another day, it was ar­gued by Flemming for the Plaintiff, A voluntary and unlawfull act is laid to the charge of the Defendant, who pleads special matter to ex­cuse himself, but doth not answer the point of the Action, but one­ly that the fall was sudden, Et quia muri fuerunt ruinosi in partibus oc­cultis, &c. whereas we have declared, that the weight was the cause thereof: 3 H. 6. Double Plea 31. In an Action upon the Case, for neg­ligent keeping of fire, the house of the Plaintiff was burnt, he ought to take a Traverse, without that, that it was burnt by the ill keeping of the fire of the Defendant; and he needs not to aver the continuance [Page 95] of the Tenancy at will: 38 H. 6. 27. A Lessee for life assigns his Estate to B. who Leases at will to C. B. is disseised by D. and C. ousted, C. re­enters, and brings Trespass, he must aver the Life of A. but not of B. nor the continuance of the will. Atkinson contrary; I conceive there needs no Traverse, for the matter of the Declaration is expresly confes­sed, and avoided, 5 H. 7. 12, 13. where one makes Title to common, or Rent by prescription, if the other pleaded unity of possession, he needs not traverse; so where he claims B. for his Villain, &c. B. saith, that he is a Bastard, there needs no Traverse. We have confessed in plea­ding, Quod gravitate ponderis, the floor fell down; but we say farther, that the cause was, because the walls were ruinous, &c. and here is matter in Law; Who ought to repair them: The Lease was made unto the Defendant, 29 Julii, and the floor fell 30 Julii, the day follow­ing: and if by Law the Defendant ought to repair them, it was im­possible for him to do it, and that shall excuse him: If one hath a Shop, and another a Cellar under it, and the Shop minatur rainam, there is a Writ in the Register, De reparatione facienda. 153, &c. And it lieth against him who ought to repair by prescription, or by the Law. And we who are the Lessee, are not bound to repair; for if the ground Tim­ber be in decay, and so the house ruinous at the time of the Lease, it is a good Plea in an Action of Waste, if the house fell in such defect; for the Lessee is not bound to such reparation, (scil.) for great timber, which was rotten at the time of the Lease. But if after the Lease it becomes rotten for want of covering, it is otherwise, See 12 H. 8. 1. And here the Plaintiff hath remedy against his Lessor, for he is bound to the reparations by the Law, and not the Lessee; And as he may have the said Writ, De reparatione facienda, before the mischief, so he may now have after the mischief: and therefore no Law binds the Defendant to repair; Nor is there any custome pleaded to that pur­pose: and also for as much as the occasion of the Cause of action was the ruinousness of the walls, the Defendant shall not be charged with the same: And also he shall not be charged with a thing he could not prevent. Manwood, The Defendant hath pleaded, that the fall of the floor was, eo quod, the walls were ruinous in partibus occultis, which was a secret thing, and unknown unto the Defendant, upon which the Plaintiff hath demurred, and so confessed the plea of the Defendant to be true; and that he was ignorant of the feebleness of the walls, and therefore he needs not any Traverse. And here the Defendant hath pleaded, That the Shop was demised to him for greater carriage. Gent, Baron, was of opinion, That the Defendant had not fully an­swered to the Declaration; for he is charged with the laying of so much weight upon the floor there, so as, vi ponderis, it fell down; To which the Defendant hath said, That the walls were ruinous, in oc­cultis partibus; and doth not answer to the surcharging, (scil.) Absque hoc, that he did surcharge it: Clark, Baron, It is a general Rule, That every material thing alledged in the pleading, ought to be tra­versed, confessed and avoided, which the Defendant hath not done here but he would excuse himself through the default of another, and answer nothing to that with which he himself is charged; And afterwards Iudgment was given in the Court of Exchequer for the Plaintiff. Whereupon, afterwards, the Defendant brought a Writ of Error in the Exchequer Chamber, where the Case was argued again; But there the Iudgment given in the Court of Exchequer was affirmed. See this Case reported short, in Popham's Reports lately published.

CXVII. Linacre and Rhode's Case. Trin. 31 Eliz. In the Common Pleas.

Co. Rep. Blomfield's Case. 3 Len. 230.THE Case was, That Linacre was bound in a Statute; and his body taken in Execution, and the Sheriff voluntarily set him at large, and afterwards the Conusee sued Execution of the Lands of the Conusor; who thereupon brought an Audita Querela. It was moved by Yelverton, Serjeant, That by that voluntary discharge of him by the Sheriff, the whole Execution was discharged, for the Execution is intire: See 15 E. 4. 5. Where the Conusee in a Statute Merchant, hath the body and lands of the Conusor in Execution, and afterwards the Conusee surrendreth his Estate which he hath by Extent; now the Execution of his body is discharged; and the Conusor shall have a Scire facias, or Audita Querela to discharge his body: So if three Co­nusors be in Execution, and the Conusee doth discharge one of them, the same is a discharge of them all, and in the principal Case, the body is the principal, and therefore the discharge of the principal part of the Execution is the discharge of the whole. Hammon, Where the Conu­see himself dischargeth the Execution in part, it is good for the whole, but where discharged by the Sheriff, Nihil operatur: Anderson, If the Conusor dieth in Execution, yet the Conusee shall have Execution against his Heir of his land, for the having of the body in Execution, is not any satisfaction to the party; for his body is but a pledge untill the money be paid; and there is no reason, that the act of the Sheriff should discharge the Execution. Windham, to the same intent; And if the Conusee sueth Execution, and hath the body of the Conusor in Execution this day, he may the next day sue Execution of the lands, and the next day after, of the goods; and if the Conusee doth discharge the body, the whole Execution is discharged, and it is true, That if A. recovereth against B. in an Action of Debt, and B. is taken by a Ca­pias ad satisfaciendum, and afterwards the Sheriff permitteth B. volun­tarily, to escape, here B. is discharged, although it be not the act of the party; for there the Plaintiff had a full Execution, which is not here; for in Case of Execution upon a Statute-Merchant, the Execution by the body is not the full Execution, and therefore al­though the Sheriff hath discharged the body, yet the Conusee may have Execution of the goods and lands, but not of the body; and after­wards Iudgment was given against the Plaintiff; That the Audita Querela did not lie, and that Execution might be sued of the goods and lands but not of the body.

CXVIII. Webbe and Mainard's Case. Trin. 32 Eliz. In the Common Pleas.

IN Ejectione firmae, The Case was, Walter Goldsmith, seised of cer­tain lands, made a Feoffment to the use of himself for life, and after to the use of John his eldest son in Fee; Proviso, That after his death, his said son shall pay unto his younger son, William, 30l. by 3l. per ann. at the Feast of St. Michael untill the entire sum be paid, and if he fail of payment, then to the use of the said William and his heirs; Will. Goldsmith the Feoffor dieth, the money is not paid, but after­wards the said younger son makes an Acquittance, and thereby ac­knowledgeth the Receipt of the said money, according to the Proviso, John dieth; Now, if the younger son may enter? And first, if the [Page 97] younger son be concluded by that Acquittance, to say that the 30l. was not paid? And if he be not concluded, Then if because that the words are but words of limitation, the younger brother hath Title of Entry. and then, if this Entry be bound by the descent from John to his Heir? or if John by continuance of the possession, after the breach of the Proviso, be a Dissesor, or not? were Questions propounded to the Court, which the Court took time to consider of, yet it was then said, That the use was settled in William, and the possession exe­cuted unto it, but not such a possession upon which an Assise or Tres­pass lieth.

CXIX. Willis and Jermine's Case. Hill. 31 Eliz. In the King's Bench. Rot. 647.

IN Ejectione firmae, It was found by special Verdict,1 Cro. 167. Roll Tit. Es­tate 830. That the Dean and Chapter of Exeter Leased the Land, where, &c. to Jermine, ren­dering Rent to be paid at their Chapter-house at Exeter, and for default of payment, that such Lease shall be void and cease; and that the said Jermine conveyed his interest to the Defendant, and afterward the Rent was demanded at the Chapter-house, but not paid; and after­wards, The Dean and Chapter, by the name of Dean and Chapter of St. Mary of Exeter, where they are incorporate by the name of Dean and Chapter of St. Mary in Exeter,) make an Indenture of Lease for forty years, in their Chapter-house to Willis, and thereunto put their seal in the Chapter-house, and made a Letter of Attorney to another to enter, and to make Livery of the said Deed, which was done accor­dingly: it was moved by Harris, Serjeant, That this Lease made in manner, &c. is not good, for the Corporation is misnamed, i. of Exeter, for in Exeter; but the Court disallowed that Exception; for there is not any material variance, and so it was said, it hath been ruled. And he said, that for another cause the Lease is not good; for when the Dean and Chapter in their Chapter-house make this Indenture of Lease,Davis Rep. 42. and set their Chapter-seal to it, It was their Deed presently, without other delivery: and then Jermine being in possession at the time of the putting of the seal to it; they were out of possession thereof, and so the new Lease void, because they were not in possession at the time of the making of it; for no delivery is necessary to the Deed of a Corpora­tion; but the date of the sealing of it, makes it a perfect Deed, and then the delivery of the same by the Attorney is of no effect. Wiat to the contrary, This Lease is good: For Jermine was but Tenant at sufferance at the time of this Lease; but if Jermine had been a Dis­seisor, then delivery in the Chapter-house was void, and then the second delivery upon the land good. And Harris agrees, That if Jermine be but Tenant at sufferance, then the second Lease made of the land was good enough. But it was agreed by the whole Court, That the Lease is good enough for the manner, and there is not other form or means for a Corporation to make a Lease than this here: And it was moved; That the first Lease was not utterly ceased without entry, and then the new Lease being made before, entry is void; But Wray was clear of a contrary opinion; and said, That the Dean and Chapter might make such a Lease before entry; But Gawdy, Iustice, doubted of it, Vide 28 H. 8. 6. Dyer and Com. 2. and 3. Ph. and Ma. 132. Browning and Beston's Case.

Harris The Attorney hath not pursued his Authority, for his War­rant is to enter into the Land in the name of the Corporation, and claim it to their use, and then to deliver the Lease made upon the land; [Page 98] but the Iury have not found such matter, but have found onely that he came by virtue of the said Letter of Attorney, and delivered the same upon the land, but do not find that he entred, and claimed the same to the use of the said Dean and Chapter, But the Court held the same good enough; for in a special Verdict, every particular circumstance need not to be found, and in pleading it ought to be; and because it is found, That the Attorney, by virtue of the said Warrant of Attorney, hath delivered the Deed upon the Land, he hath pursued his Warrant in all. Gawdy, Delivery of the Deed is as necessary in case of a Cor­poration; as it is in the case of other persons.

CXX. Rymersly and Cooper's Case. Trin. 31 Eliz. Rot. 768. In the King's Bench.

1 Cro. 168, 169.IN an Action upon the Case, for slanderous words, the Plaintiff declared, That where, by the custome of the City of London, it hath been used, If the Mayor, Recorder, or any Alderman, being a Iustice of Peace there, might take the Deposition of any person produced before them, or any of them to be deposed in perpetuum rei memoriam ex parte alicujus personae, which Depositions are there recorded, in per­petuam rei memoriam; and are good matter to be given in Evidence to any Iury there to inform their consciences of the truth of the thing in Question, and declared farther, That he himself was produced be­fore one Bond, as a Witness to testifie his knowledge in quadam causa ibid. ex parte Edw. Stapleton, before whom he deposed, &c. The De­fendant spake these words in scandal of the Plaintiff, Rymersly was forsworn in the said oath before, &c. The Defendant pleaded, That the Plaintiff made not any such oath, and upon that the Plaintiff did demur in Law. George Crook prayed Iudgment for the Plaintiff, for the same is no plea; for the oath is but an Inducement, and therefore not traversable; for the ground of the Action is the speaking of the words; and admit there were not any such Oath taken by the Plain­tiff, the offence of the Defendant was the greater, Nam peccavit in utroque, tam in juramento, quod nullum omnino fuit, quam in perjurio, quod sine juramento esse non potuit; for if one saith, A. Murdravit J. S. whereas there never was any such J. S. yet the Action lieth for the scan­dalous words: Also this Plea doth amount but to the general issue, See 4 E. 6. Action, Sur le Case 113. 34 H. 6. 28. And as to the words, they are Actionable; for (forsworn) amounts to purjured, being spoken upon on oath taken in a Court of Record, and so was it lately holden in the Case betwixt Brook and Doughty: Brook and Doughtie's Case. Godfrey, Contrary, The De­claration is not good, for the custome in London is not well laid, or pursued; and therefore, upon the matter, it is but an oath taken be­fore a private man; for he hath declared, That in the City of Lon­don, it hath been used, &c. but doth not say, That the City of London is Antiqua Civitas, as he ought. See the Case of the Prior of Lantony, 12 E. 4. 8. and 22 H. 6. Prescription, 47. If a man alledgeth a custome within a Town, he ought first prescribe, That the said Town is an an­cient Town. Also it is not set forth in the Declaration: That Bond, at the time of the Deposition taken, was a Iustice of Peace in London, and then the custome is not well persued. But afterwards, the Record was looked upon, and allowed to be good by the Court, and the Court conceived, that the Plea of the Defendant was good enough, as 13 E. 4. 8. In Debt against an Abbat, the Plaintiff counted upon a borrowing by the predecessor, &c. the Defendant plea­ded, That he did not borrow, and it was holden a good Plea, and yet the Plaintiff in such Case might plead the general issue, See [Page 99] 26 H. 8. and 34 H. 6. Br. Action Sur le Case, 103. 3. Ma. Dyer. 121. The Lord Mounteagle's Case, 34 H. 6. 43. by Moile. In Trespass, Quare servientem suum verberavit, &c. It is a good Plea, to say, That he was not the servant of the Plaintiff; and if in the principal, the De­fendant plead, Not guilty, he should thereby confess, that the Plain­tiff was sworn. Wray, chief Iustice, The Plea of the Defendant is good: And it was moved by Egerton, Solicitor general, That the custome to take Oath, as is alledged, is not allowable, because it is not a reasonable custome, that such Depositions should be taken, in perpetuam rei memoriam, If there be not a suit depending in the Cause; and because that such custome not alledgable, it is not reasonable, and then the Plaintiff ought not to have Iudgment; and such also was the opinion of Wray and Gawdy, Iustices, But for the default in the De­claration, That it is not alledged, That London is antiqua Civitas, Iudgment was given against the Plaintiff.

CXXI. Alexander and Dyer's Case. Trin. 31 Eliz. Rot. 901. In the King's-Bench.

IN Debt for Rent reserved upon a Lease for years,1 Roll. 605. 1 Cro. 169. The Plaintiff declared, That he leased to the Defendant 37 Sept. certain Lands, to have and to hold from the Feast of St. Michael next ensuing, for a year, rendring 10 l. Rent, Virtute cujus, 29 Sept. the said Lessee entred, and enjoyed the said land, from the Feast of St. Michael, all the said year; and because the Rent was behind, &c. And upon Nihil debet pleaded, it was found for the Plaintiff. It was moved in Arrest of Iudgment, that upon the Plaintiffs own shewing, here is no Rent behind, and then no cause of Action; for it appeareth in the Declara­tion, that the Lessee entred 29 Sept. which is before the Term begins; For the words of the Habendum are, From the Feast of St. Michael, there­fore the Feast of St. Michael is no part of the Term, and then was the Defendant a Disseisor, and the day after, the Term began, which can­not alter his Estate, but that he continueth a Disseisor, and then he is not in by force of the said Lease, and so no Rent can be due: Williams, As the Declaration is here, the same is not any disseisin; for the Plaintiff set forth in his Declaration, That the Lessee, the Defen­dant hath occupied the Land demised, the whole year, and so hath not admitted any Disseisin, it being in his election to make it a Dissei­sin or not: Clench, Iustice, Be it a Disseisin or not, or be it that the Defendant entreth or not, he is to pay the Rent: Gawdy, The Lessee is a Disseisor, and continueth a Disseisor, and yet Debt lieth against him for the Rent, by reason of the privity of Contract: which see Rys­den's Case, 24 H. 8. Dyer 5. And so in our Case, Quod fuit concessum per totam Curiam, and afterwards Iudgment was given for the Plaintiff.

CXXII. Monings and Worley's Case. Hill. 32 Eliz. In the King's-Bench. Rot. 561. Error.

IN Debt upon an Obligation brought by Mary Worley, against Mo­nings in the Common-Pleas. The Condition was, That if Mary Wor­ley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings; nor marry her self, but with his consent, Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made (of Mo­nings) at his house at Waldersey, 100 l. That then, &c. And the De­fendant [Page 100] in the said Action pleaded, That the said Mary the Plaintiff, in the said Action, 4 Maii, 30 Eliz. departed out of his service without li­cence, The Plaintiff Mary, by Replication said, That 6 Septemb. the same year she departed out of his service with licence, and that 4 Octob. after, she demanded the said 100 l. at Waldersey aforesaid, and he refu­sed to pay it, Absque hoc, that she departed out of his service 4 Maii, 30 Eliz. without licence, and the Writ bare date, 18. of October, next after the demand; And it was found for the Plaintiff, and Iudgment given for her in the Common-Pleas; and now a Writ of Error is brought by Mo­nings. Tanfield, The Iudgment ought to be reversed; for always the Replication in such cases, ought to contain sufficient Cause of Action, and sufficient breach of the Condition, or otherwise the Plaintiff shall not have Iudgment, although that the Issue be found for him: as 7 E. 4. 31. In trespass for taking of goods, of A. and B. A. pleads Not guil­ty, B. justifies, the Plaintiff makes Title to the goods by a gift, B. tra­verseth the gift, and it is found for him against the Plaintiff, A. is found guilty: Now, although A. be found guilty, yet the Plaintiff shall not have judgment against him; for it is found, that he hath not any Title to the goods. As in Debt upon a Bond against A. and B. A. pleads Non est factum; B. pleads the release of the Plaintiff, and it is found the Deed of A. and that the Plaintiff hath released to B. the Plain­tiff shall never have Iudgment; for upon the Verdict, it appears, that he hath not cause of Action: And here in the Replication, there is not a sufficient breach shewed of the Condition; for although that Mary hath not departed from the service of the said Defendant, yet the same is not material; but the Defendant had twenty eight days after the demand, to pay the 100 l. but the same is not so here, for the Plaintiff hath prevented the Defendant; for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year, and so the Defen­dant had not his time allowed him. Gawdy, The issue is taken upon the departure out of his service, so as the demand is not now material, and therefore the alledging of the same is surplusage, and shall not hurt: And the Defendant hath pleaded in Bar, the departure of the Plaintiff out of his service, upon which he relieth, and the demand set forth in the Replication, is not to be regarded, as to prejudice the Plaintiff: As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees, The Lessor assigns the breach of the Covenant in suc­cidendo twenty Oaks, The Lessee pleads, that he did not cut the twenty Trees, nor any of them; The Iury found, that the Defendant had cut down ten Trees, The Plaintiff upon that Verdict shall have Iudgment, for the rest is but surplusage; and more put in issue than there needs to be. Fenner, It is not any full Plea to say, That the Plaintiff did not depart out of the service of the Defendant 4 Maii, for if she departeth at any other time, she shall not recover, for which cause she ought to have pleaded, That she continued in his service untill such a day, and then she departed with his licence, and the inducement to the traverse ought to be sufficient matter, otherwise it is not a full Plea, nor the Traverse is not good. And if it be surplusage, yet if it be not matter against her self, it makes the Plea naught, which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived, that the Iudgment was well given, for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence, or to stand upon the demand. And now, although he pleads the departure, yet the demand is not confes­sed. And afterwards the Iudgment given in the Court of Common-Pleas was affirmed.

CXXIII. Bashpool's Case. 27 Eliz. In the King's-Bench.

THE Case was this, The Father seised of Lands,Stiles Rep. 148. is bound in an Obligation, and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years, the remainder to the Son in Fee, and dieth; and no other Lands descend or come to the Son from his Father. It was moved by Godfrey, That the Heir in that case at his Election might wave the Devise, and take by descent, or è contra: See 9 E. 4. 18. by Needham. But Gawdy and Shute, Iustices,3 Len. 118. were of opinion, That the Son should be adjudged in by Descent: Clench contrary.

CXXIV. Bennet and Shortwright's Case. Trin. 30 Eliz. In the King's-Bench.

THE Case was,1 Cro. 206. The Defendant sued the Plaintiff in the Spiri­tual Court for Tythes in kind, and now the Plaintiff prayed a Prohibition, and suggested, That they had used in the said Parish, time out of mind, &c. to take the tenth Sheaf in satisfaction of Tythe of Corn, &c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes, he had severed the tenth Sheaf from the nine parts, and the Parson would not take them away: and that he had offered that matter by way of Plea in the Spiritual Court, but they there would not allow of it: And the Court was clear of opinion, That the suggestion was good; for if the Parishioner setteth out his Tythes, and the Parson will not take them, or if they be destroyed by Cattel by his Laches, he shall not have Tythes again: and there­fore if the Ecclesiastical Court will not allow that Plea, it is reason that the party have a Prohibition, for after severance transit decima in Catalla: But it was said by the Court, That if the Parishioner doth set forth his Tythes, and takes them again, he may be sued for Tythes in the Spiritual Court, and the setting forth shall not excuse him.

CXXV. Walter against Pery and Springe. Mich. 32 Eliz. In the King's-Bench.

WAlter brought a Scire facias against Pery and Springe, Sureties for one Brook upon Bail in an Action of Debt: The Defen­dants pleaded the death of Brook before Iudgment given against him: And all the Iustices (except Wray) held, that the Plea was not good, for it is a surmise against the Iudgment; for Iudgment cannot be gi­ven against a dead man. Wray, The same is Error in fact, and of such Error the party may have advantage in this Court. Gawdy, The Surety cannot take advantage of Error, nor plead it, for he is a stran­ger to the Record. Wray, He may plead, that the Defendant is dead after the Iudgment, quod fuit concessum: but it was ruled, That the Defendants should be sworn that their Plea was true.

CXXVI. Aldersley and Duparrie's Case. Mich. 32 Eliz. In the King's-Bench.

IN Debt upon an Obligation bearing date 4. Julii, 30 Eliz. The De­fendant pleaded, that it was endorsed with condition to pay 50 li. be­fore 15 Octob. 31 Eliz. and pleaded, that he had paid it before the 15. of Octob. aforesaid, scil. the ninth of June, 30. Eliz. which is three Weeks before the date of the Obligation, upon which the Action is brought: And they were at Issue, That the Defendant Non solvit before 15 Oc­tob. &c. And the Iury have found, That the Defendant had not paid it before 15 Octob. and that matter was assigned for Error; for that Plea is contrary and repugnant in it self, to alledg the payment before the date of the Obligation: But it was moved, That here the day of payment is not material, and but matter of surplusage; for the Issue is, Whether the Defendant paid the money before the 15. day of October? and the Iury have found the negative, so as the day in the Scilicet is not material, and the alledging of that is matter of sur­plusage: As 20 H. 6. 15. Trespass Quare clausum fregit, & herbam con­sumpsit, continuand. transgress. from such a day usque ad diem impetratio­nis brevis praedict. Scilicet, 14 F. 17 H. 6. whereas the date of the Writ fuit 12. Octob. 17 H. 6. scil. the October before February: But it was not allowed; for the day of the Writ brought is certain enough, and the mistaking in the Scilicet is not to any purpose. Wray, Payment before the day is not a good Plea, if he doth not shew the day and place. It was adjourned.

CXXVII. Parker and Burton's Case. Trin. 31 Eliz. In the King's-Bench.

IN an Action upon the Case for slanderous words, (scil.) That the Plaintiff was perjured: The Defendant doth justifie, That whereas a suit was prosecuted in the Exchequer-Chamber at Westminster betwixt the Defendant and another, and from thence a Commission was a­warded out of the said Court to divers persons, to examine certain Witnesses at B. in Berk. and there, by virtue of the said Commission, the Plaintiff was deposed, & false deposuit, praetextu cujus, he spake the said words.Antea 811. The Plaintiff replicando saith, De injuria sua propria abs­que tali causa: upon which Issue was joined, and tried in Berk. and found for the Plaintiff. And it was moved by Coke in Arrest of Iudg­ment, That the said Issue ought not to be tried in Berks onely, but by both Counties Mid. and Berks; for all the matter of justification doth arise out of both Counties; the Suit and the Commission which was in Midd. and the Execution of the Commission and the Oath which were in Berks; all which matters is but one Case: as 2 H. 7. 3. and 4. Atkinson, The Trial is well for the manner, for the matter of the justification is the Perjury, and the Suit and Commis­sion are but induction and conveyance to the Action: Also the Defen­dant hath not shewed, that the Exchequer-Chamber is in the County of Midd. as he ought: As where a man pleads a thing done in any Court, except in the Common-Pleas, he ought to shew in what County the said Court was at the time that such thing was done, for Communia Placita teneantur in loco certo. Gawdy and Wray, When the Defendant doth justifie by reason of the Perjury, and the Plaintiff replies without such cause, the same amounts to as much as if he had traversed the Per­jury, [Page 103] which being supposed to be committed there, shall be tryed there. Coke, It was the Case of one Loveday, 25 Eliz. In an Action upon the Case for slanderous words, the Defendant did justifie, by reason of a Robbery committed by the Plaintiff in another County; and the Plaintiff pleaded De son tort demesne sans tiel Cause: the same shall be tryed by both Counties: See 2 H. 7. 3. Also it was moved, that here it is not shewed in what County the Exchequer Chamber is: Admit that it be in Berks, yet it ought to be tryed by both Counties, and that was Chelderlie's Case: And although it be not shewed in what County the Exchequer Chamber is, the Plaintiff had Iudgment to recover, and the Tryal was held good enough.

CXXVIII. Sir Tho. Bacon's Case. Hill. 31 Eliz. In the King's Bench.

A Writ was awarded out of the Court of Admiralty against Sir Thomas Bacon and Sir Thomas Heyden, to shew cause, (whereas the Earl of Lincoln, late High Admiral of England, had granted to them by Letters Patents, to be Vice-Admirals in the Counties of Norfolk and Suffolk,) why the said Letters Patents ought not to be re­pealed and adnulled? and so the said Writ was in the nature of a Scire facias. And now it was made by Coke, Postea 114. That although the Admiral had but an Estate for life, yet the Patents did continue in force after his death: As the Iustices here in the Common Pleas, although they have their places but for life, yet they may grant Offices which shall be in force after their deaths, &c. And because this matter is determinable at the common Law, he prayed a Prohibition; for in the Admiral Court they will judge according to the Civil Law: and the Court gave day unto the other side, to shew cause unto the contrary, or otherwise a Prohibition should be awarded.

CXXIX. Weshbourn and Mordant's Case. Mich. 31 Eliz. In the King's Bench.

IN an Action upon the Case, the Plaintiff declared,1 Cro. 291. 1 Len. 247. 3 Len. 174. That whereas he was possessed of a parcel of Land called the Parsonage, lying ad­joyning to a certain River, from the 29 of May, 29 Eliz. untill the day of the bringing of this Writ, the Defendant had the said twentieth day of May stopt the said River with certain Loads of Earth, and so it continued untill the fourteenth day of February, by which his land was drowned, and so he had lost the profit of it by that time. And it was moved in Arrest of Iudgment, That upon the Declaration there doth not appear any cause of Action, for the Plaintiff hath made Title to the Land drowned from the twentieth of May, so as that day is ex­cluded, and the Nusance is said to be made the twentieth day, and so it appeareth the Nusance was before the possession of the Plaintiff; and if it were so, then cannot he complain of any wrong done before his time: To which it was answered, That although the stopping was made before his possession, yet the continuance of the same is after, and a new wrong, for which an Action lieth: as 5 H. 7. 4. It was presented, That an Abbat had not cleansed his Ditch, &c. by reason of which the Highway is stopt: The Successor shall be put to answer to the said Indictment, by reason of the continuance of it: And see, that continuation of a Nusance is as it were a new Nusance, 14 and 15 Eliz. 320. And it may be that the Plaintiff was not damnified [Page 104] untill long time after the twentieth day of May, (scil.) after the stop­ping: And the words of the Writ here are satisfied and true: And afterwards Iudgment was given for the Plaintiff.

CXXX. Trusto and Ewer's Case. Pasc. 31 Eliz. In the King's-Bench.

1 Cro. 23.IN this Case it was agreed for Law, That if a Controversie be be­twixt two for the Title of a Lease for years, and they submit the matter to Arbitrement: and the Arbitrators award, that one of them shall have the term: the same is a good Gift of the interest of the term: See 12 Ass. 25. 14 H. 4. 19. 24. But if the Award be, that the one shall permit the other to enjoy the term, the same is no Gift of the interest therein: See, as to the Arbitrement, 9 E. 4. 44.

CXXXI. Andrew's Case. Pasc. 32 Eliz. In the King's Bench.

1 Cro. 214.IN the Case of Andrews of Grays Inn, it was holden by Gawdy and Fenner, Iustices, That if a Lease for years be made by Deed inden­ted with these words, demisi & ad firmam tradidi; That upon that Writ of Covenant lieth against the Lessor, if he himself entreth upon the Les­see; but contrary if a stranger enter, if it hath not clause of Warranty: For by Fenner, when Covenant is brought upon that word Demisi, the Plaintiff shall recover the term it self, but not damages, and that cannot the Plaintiff do when a stranger entreth; and that was holden for clear Law: See 9 Eliz. Dyer 257. A covenant against the Heir in such case.

CXXXII. Bigg and Clark's Case. Hill. 32 Eliz. Rot. 549. In the King's Bench.

IN an Action upon the Case in the Court of Hertford, the Plaintiff declared, How that the Defendant hired a Horse of the Plaintiff to carry three Bushels of Coals from Ware to his House in Hertford, and that the Defendant in consideration thereof did promise the Plaintiff, quod ipse in via praedicta nollet onerare the said Horse aliter, than with the said three Bushels of Coals: And the Plaintiff said, That the Defendant had loaded the said Plaintiff's Horse with a greater weight than with the said Coals, and so had hurt his Horse, upon which the Plaintiff recovered: And Error was brought, and the Error assigned was this, That it is not specially shewed, how the Defen­dant aliter loaded the said Horse, with what thing: As 19 H. 6. In Debt against Executors, they plead, That they have onely expended such a sum of the Goods of the Testator in Funeral expences, absque hoc, that they have administred aliter, vel alio modo; the Plaintiff can­not Reply and say, that they have administred aliter, vel alio modo, without shewing how. Another Error was assigned, because it is not certainly shewed, how the Horse was hurt; but that Exception was not allowed, for it is not the point of the Action: but for the first mat­ter, the Iudgment was reversed,

CXXXIII. Toley and Windham's Case. Trin. 32 Eliz. In the King's Bench.

IN an Action upon the Case, the Plaintiff declared,1 Cro. 206. 3 Len. 150. That whereas certain controversies were betwixt the Plaintiff and Defendant for the profits of certain Lands which the Father of the Defendant had taken in his life time: and whereas he had brought a Writ of Subpoena out of the Chancery against the Defendant for the said profits taken by the Father of the Defendant in his life, intending to put in a Bill against the Defendant in the said Court: The Defendant, in con­sideration that the Plaintiff would stay his intended Suit, promised, That if the Plaintiff can prove, that the Father of the Defendant took the profits, or had the possession of the said Land under the Title of the Father of the Plaintiff, that he should pay to him for all the said profits: And farther declared, That he had proved, that his Father had taken the profits under the Title of the Father of the Plaintiff. Coke took up Exception to the Declaration, because it is not shewed, How and by what means, under the Title of the Father of the Plaintiff, he took the profits, as by Lease, for that is traver­sable. Gawdy, Iustice, The Son hath not any cause of Action or Suit for the profits taken in the time of the Father, therefore the staying of Suit arising from such matter is not any consideration: But as to the other Exception, because it is not shewed how, and by what Title he took the profits, it is well enough. As unto the other Exception, it was moved at another day, that there was a Case betwixt Stone and Withypool; An Infant promiseth to pay a simple Contract,Stone and Withypool's Case. and there­upon there was a Suit in the Chancery, but it was holden that it was not maintainable, for the promise was void, because there was no con­sideration. And it was agreed by all the Iustices, that this Action would not lie; for the Plaintiff hath declared, That where certain Controversies were betwixt the Father of the Defendant and him, (scil.) the Plaintiff himself, for the profits of certain Lands, which the Father of the Defendant had taken in the time of the Father of the Plaintiff, &c. and he doth not shew, that he himself is Heir or Exe­cutor of his Father, and therefore the Chancery cannot give him any remedy: And on the other side, if the Plaintiff had any remedy, the same ought to be against the Executors of the Father of the De­fendant; and the Plaintiff hath not allowed, that the Defendant is Executor to his Father, and therefore he hath not any colour of Suit against him, nor therefore is there any consideration. Fenner, The Defendant by the Law is not chargeable, nor in conscience, upon this matter he shall be charged; for by the same reason he should be charged for the simple Contract of his Father, and a promise to pay it will not bind him: And afterwards Iudgment was given against the Plaintiff.

CXXXIV. Veal and Robert's Case. Trin. 32 Eliz. In the King's Bench.

IN an Ejectione Firmae, the Plaintiff declared,1 Cro. 199. How that John Veal lea­sed to him, 30 Eliz for twenty one years ten Acres of Land called M. The Defendant pleaded, That before the Demise and Ejectment, one John Roberts was seised of the said ten Acres called M. in Fee, and 14 Eliz. demised the same to one John Cox for life, and afterwards 25 Elizab. [Page 106] John Roberts dyed, and the Reversion descended to the now Defendant; Cox demised the Land to John Veal for thirty years, who leased unto the Plaintiff, as in the Declaration, of which he was possessed quous­que, &c. Cox dyed 30 Eliz. after whose death the Defendant entred and ejected prout was lawfull for him to do, &c. The Defendant by replica­tion saith, That before John Roberts had any thing, one Wall of P. of Glocester was seised of the said ten Acres inter alia, and 29 H. 8. demised to John Veal, Father of the Lessor of the Plaintiff, the said Land inter alia, by the name of two Messuages and two Yard Lands in the Coun­ty of Glocester, nuper in tenura J. S. and of two other Houses in a Yard Land tunc in tenura E. H. nec non de ten acres vocat. M. lying inter C. & I. tunc in occupatione E. W. for term of years yet during, Habendum dict. four Messuages and three Yard Lands, in tenura I.S. & E.H. nec non the said ten acres to the said John Veal, à tempore mortis sursum red­ditionis forisfactur. vel determinationis status vel terminor. praedict. I.H. & W. in eisdem, for sixty years; by force of which he was possessed of the interest of the term aforesaid: and afterwards 14 Eliz. the Estate of the said E. W. in the said ten acres ended, for which the said John Veal entred, and 25 Eliz. dyed intestate; and Administration was commit­ted to J. S. Lessor of the Plaintiff, by force of which he entred, and Leased to the Plaintiff, and so he was possessed untill ejected: The Defendant did rejoyn, and said, That long before John Roberts had any thing, William Roberts was seised in Fee, and enfeoffed the said John Roberts before the Ejectment supposed, who demised unto John Cox, and so as in the Bar, absque hoc, That the said Abbat demised to the said John Veal, modo & forma prout the Plaintiff replicando allegavit, the which matter he is ready to aver, & petit Judicium: The Plaintiff said, That the Abbat demisit ut supra, & hoc petit quod inquiratur per pa­triam: and it was found for the Plaintiff. And it was objected by Snag, That this issue was not well taken, for the Estate of John Veal was not to begin before all the Estates, being in esse at the time of the ma­king of the Lease by the Abbat of Glocester, are expired. Coventry contrary; and that the Estates do begin severally, and singulatim, as the Estates precedent shall end, and shall not expect untill the other Estates be determined; which see Iustice Needham's Case, now re­ported by Coke, 5 part. 37 Eliz. and see Pollard's Case there cited. At another day it was objected by Snag, That the new Estate could not begin in any part untill all the former Estates be determined; for if this new Lease be made, reserving Rent; and one part thereof is now come in possession, then he should pay for that part all the Rent: But the Court was clear of Opinion, That the Lease in the ten Acres did begin presently, without having regard to the other Estates in de­mand for the intent of the Lessor was, That no mean time should be betwixt the expiration of the Lease for ten years, and the beginning of the new: As in the Case betwixt Wrotesley and Adams, 1 Eliz. Plo. Com. 198. A Lease is made to begin after the expiration of a former Lease for years; the first Lessee takes a new Lease of the Lessor, which was a Sur­render of the former Lease; If the Lease, (scil.) the second Lease, shall now begin? was the question: or should expect untill the first Lease shall end by expiration, for the former Lease is ended, but not expired, i. by effluction of time: And it was holden, that the said second Lease should begin presently; for the intent of the Lessor was, that no mean time should be betwixt the end and beginning of the said Estates. And afterwards Iudgment was given for the Plaintiff.

CXXXV. Pasch. 32 Eliz. In the King's-Bench.

NOTE, If a Record be removed out of the Common-Pleas into the King's-Bench by Writ of Error, and the Plaintiff shall not as­sign his Errors, then a Scire facias shall issue forth, quare executionem habere non debet: and upon summons, or two Nichels retorned, the Plaintiff shall have Execution, yet the Plaintiff may assign his Er­rors. And to such a Scire facias Exception was taken, because the Writ was coram nobis apud Westm. where it should be, ubicunque fuerimus in Anglia: and for that cause a Supersedeas was granted. It was also hol­den, That although a Writ of Error doth not lie here, upon a Iudg­ment given in London; yet upon a Iudgment given at Newgate, which is upon Commission in their Sessions, Error lieth here.

CXXXVI. Bows and Vernon's Case. Pasch. 32 Eliz. In the King's-Bench.

DEBT upon an Obligation was brought by Bows against Vernon and Hennington, who pleaded the Statute of 23 H. 6. and shewed, that Vernon was in Execution, and that the Bond was made for his deliverance against the Statute: The Plaintiff replied, and said, That at the time of the making of the said Bond, the said Vernon fuit sui juris, and at large, absque hoc, that he was in Prison tempore confecti­onis scripti praedict. modo & forma, &c. Egerton, Solicitor, moved, that the Traverse was not good; for if a man be in Prison in Execu­tion, and makes a promise to make a Bond, for which he is inlar­ged, and within an hour after he makes the Bond, the same is with­in the Statute: and therefore this issue is not well joined, but it ought to be absque hoc, that it was pro deliberatione, &c. and of such opinion was Fenner and Gawdy, Iustices: See Dive and Manningham's Case, 4 E. 6. Plo. Com. 68, 69. acc.

CXXXVII. Hunt and Sone's Case. Hill. 29 Eliz. In the Common-Pleas.

IN an Action upon the Case, the Plaintiff declared,Owen Rep. 42. 1 Cro. 118. 1 Roll. 30. 4 Len. 13. That whereas the said Plaintiff was seised in his Demesn as of Fee, of certain Land, and shews the certainty of them; the Defendant Sone, in con­sideration that the said Plaintiff permitteret the said Sone, occupare terras praedictas ab eodem die, (scil.) 20 Julii, 27 Eliz. usque ad secundum diem Novembris, quod esset in Anno Dom. 1589. super se assumpsit, quod ipse idem W. Sone ad festum omnium Sanctorum proxime sequen. 10 l. 2 s. 6 d. ac abinde annuatim durante termino dicto 20 l. & 5 s. at festa Annun­ciationis beatae Mariae, ac omnium Sanctor. per aequales portiones solvend. eidem Hunt (the Plaintiff) bene & fideliter contentare vellet: Ac licet praedict. W. Hunt permisit praefat. Sone occupare terras praedict. à dict. 20 die Julii, 27 Eliz. usque ad secundum diem Novemb. 28 Eliz. Licetque post dictum 20 diem Julii, 27 Eliz. & ante praedict. diem 2 Novemb. Anno 20 Eliz. dictum festum omnium Sanctor Anno 27 Eliz. supradict. ac festum Annunciationis beatae Mariae Virginis, ac festum omnium Sanctor. 28 Eliz. praeterierunt, praed. tamen W. Sone dict. 10 l. 2 s. 6 d. ad praed. festum [Page 108] omnium Sanctor. proxime sequent. post permissionem & assumptionem praed. ac aliud 10 l. 2 s. 6 d. ad festum Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad fest. omnium Sanct. Anno 28 Eliz. supradict. nondum solvit, &c. The Defendant pleaded, That the Plaintiff entred into parcel of the pre­misses ultimo Octob. 28 Eliz. & eadem occupare eidem W. Sone non per­misit: upon which they were at issue, and it was found for the Plain­tiff: And now it was moved in Arrest of Iudgment, That the Plain­tiff had not cause of Action before the whole Term be expired, for it is an intire Assumpsit, and cannot be by Action severed; and therefore it was said, That if I promise to pay you 20 l. viz. at such a Feast 5 l. and at such a Feast other 5 l. &c. there before the last day of payment no Action lieth, for the sum of 20 l. is one and entire: but if I promise to another at Easter next 10 l. and at Midsummer as much, &c. here are several Assumpsits; and upon default of payment of the first sum Actio oritur, without respecting the last payment: But at the last the Court was agreed, That Iudgment, notwithstanding the said Exception, should be given for the Plaintiff: and said, That the Declaration was well enough, as well in respect of the Exception aforesaid, as also that this word [licet] is effectual enough for the setting down the permission.

CXXXVIII. Roper's Case. Trin. 30 Eliz. In the King's-Bench.

Stamf. 166, 167. Terms of the Law, 75, 76. Inst. 131. ROper was robbed by Smith, and within a Week after the Robbery he preferred an Indictment against him, and within a Month af­ter the Robbery he sued an Appeal against Smith, and prosecuted the same untill he was out-lawed; and thereupon Coke moved to have re­stitution of the Goods taken: And B. of the Crown-Office said, That the Fresh-suit was not enquired; for upon an Appeal one shall not have restitution without Fresh-suit. Coke, The Books are, That if the De­fendant in an Appeal of Robbery be attainted by Verdict, the Fresh-suit shall be enquired of: but here he was attainted by Outlawry, and not by Verdict, and so the Fresh-suit cannot be enquired: and here the Indictment within a Week, and the Appeal within a Month after the Robbery, is a Fresh-suit. Wray, Fresh-suit in our Law is to persue the Felon from Town to Town, but the suing of an Appeal is not any Fresh-suit: See 21 E. 4. 16. Restitution granted upon an Outlawry in an Appeal of Robbery without Fresh-suit enquired: 1 H. 4. 5. if he confess the Felony: See 2 R. 3. 13.

CXXXIX. Piggot and Russel's Case. Trin. 30 Eliz. In the Common-Pleas.

1 Cro. 124. 1 Co. English his Case.NOTE, it was agreed per Curiam in this Case, That if Tenant for life being of full age, and he in the Remainder within age levy a Fine, and afterwards the Infant reverseth the Fine as to him for the Inheritance, he shall not enter for forfeiture, because he joined in the Fine, and so assented to it.

CXL. Sir John Savage's Case. Trin. 29 Eliz. In the King's-Bench.

IN Trespass, the Defendant justified, because Sir John Savage was seised of the Manor of D. within which Manor the custome is, That if any man taketh to Wife, any customary Tenant of the said Manor, and hath issue, and shall overlive his Wife, he shall be Te­nant by the Curtesie; and pleaded farther, That he took to Wife one Ann, to whom, during the said coverture,Postea 208. a customary Tenement of the said Manor did descend, and that he had issue by the said Ann, and that she is dead, and so, &c. and it was adjudged, That the Husband by this custome upon this matter, should not be Tenant by the Curte­sie; for Ann was not a customary Tenant of the said Manor at the time of the marriage.

CXLI. Stainsby and Hales's Case. Trin. 29 Eliz. In the King's-Bench.

IN a second Deliverance by Stainsby against Hales, Challenge was taken for the Hundred, and it was shewed and confessed, That the Hundred of Feversham in Kent, was and is within the Lathe of Seray, and that there is not, nor ever had been any Court holden in the said Hun­dred of Feversham, but that all the Inhabitants within the said Hundred have used to go to the Court of the Lathe of Seray: and it was holden by all the Iustices, that in this Case Challenge ought to be taken for the Lathe, and not for the Hundred, for no Court had been holden in the Hundred; See 2 H. 4. 6. 11 H. 4. 2. A Iuror was challenged for the Hundred, and the Triors said, That the party challenged was not of the said Hundred, where, &c. but they farther said, that there were six Hundreds, all which came to one Court; and the same was holden a good answer to the challenge, and the party challenged was sworn.

CXLII. Sands and Hempston's Case. Trin. 27 Eliz. Rot. 1201. In the King's-Bench.

IN a Replevin, The Case was, That Henry, Earl of Westmerland, Dy. 270. 2 Brownl. 26. 3 Len. 59. 1 Leon. 4. 16. Postea 15. 2 Roll. 157. was seised of the Manor of Kennington in Fee, and granted a Rent-charge to William Cordel, afterwards Master of the Rolls, for life, and afterwards made a Feoffment thereof to Sir John Clifton, who granted a Copihold to Sands for life, according to the custome of the said Manor, the same being an ancient Copihold; Sir John died seised, the Rent is behind, Sir William Cordel died, Hempston as Bai­liff of Cary, Executor of Sir William Cordel, distrained for the arrea­ges upon the possession of Sands, and it was clearly holden by the whole Court, That the possession of the said Copiholder was not chargeable to distress upon this matter, for the Copiholder is not in by him who ought immediately to pay the Rent, but is also in by the custome: Note by some, That the possession of a Copiholder is not liable to the Executor, by the Statute of If it be so, that the Lord of the Manor be within the degree limited by the said Statute.

CXLIII. Hooper's Case. Trin. 29 Eliz. In the Common-Pleas.

HOoper of Salisbury was brought to the Bar, to wage his Law in an Action of Debt, and upon examination, the matter appeared to be, That the Defendant was indebted to the Plaintiff upon a simple Contract, and upon communication betwixt them, it was agreed, that one J. S. should become bounden to the Plaintiff in an Obligation for the said debt, to be paid at a day certain, which J. S. became bound accordingly, and the Defendant was also bound to the said J. S. in a counter-bond for to save him harmless against the Plaintiff. And the Court was clear of opinion, that upon this matter, the Defen­dant could not safely wage his Law; for by this Obligation, made by a stranger to the Contract, the Contract upon which the Action is brought is not determined: And also here the Obligation was made after the Contract; But if J. S. had been bound, Ut supra, upon the Contract, it had been otherwise; and upon that reason, the Case of one Pudsey was adjudged.Pudseys Case. Where, upon the Contract, a stranger to the Contract being present, made promise to enter into a Bond unto the party, &c. for the paiment of the money, agreed upon the Contract, and afterwards became bounden accordingly; in that Case the Contract was determined, because the Obligation was pursuant to the Contract; and in the principal Case, the Court would not ad­mit the Defendant to wage his Law, although he earnestly desired it.

CXLIV. Knevit and Taylor's Case. Trin. 29 Eliz. In the Common-Pleas.

KNevit enformed against Taylor in the Common-Pleas, upon the Sta­tute of Usury, and the parties were at issue; and the matter de­pended four Terms untried after issue was joined; and now the De­fendant prayed, for his own expedition, that he might have Nisi Prius with Proviso, as the course is in the Exchequer in such case, to send Commissions into the Countrey where the Information is laid for the trial of the issue joined in the said Court, and that at the suit of the Defendant. And it was much doubted, if the Court might grant such Nisi Prius, because the Queen is Quodammodo a party to the suit. And by Fleetwood, Serjeant, The common course is so; But where the Queen her self is merely party, no such Nisi Prius shall be granted: and he said, That the Informer might be Nonsuit, although that the Queen be in such manner party. Nelson, Prothonotary, said, That he never saw such a Precedent,Postea 116. See F. N. B. 241.

CXLV. Alford and Lea's Case. Trin. 29 Eliz. In the King's-Bench.

1 Cro. 54. Post 181. ALford brought Debt upon a Bond against Lea, and the Case was, That the parties were bound the one to the other upon Conditi­on, to stand to the Award of B. and C. who award, that the said Lea, before such a Feast, shall make a release to Alford, but no place assig­ned where the release shall be delivered to the Plaintiff. Lea, Before the said Feast, sealed a release according to the award, and delivered the same to one Pine, to the use of the Plaintiff, who delivers it to one [Page 111] Mason, one of the servants of Alford, the Plaintiff, who two or three dayes after, offers it to Alford, but he refused it, It was holden by Wray, That the award upon this matter was well performed, not­withstanding the refusal of Alford, See Tawe's Case, 1 Eliz. Dyer 167. A. enseals, Quoddam scriptum Obligat. and delivers the same to one C. for to deliver it to the Obligee, who delivered it accordingly, as the Deed of A. who refuseth to receive it; and after gets the Obligation, and recovers upon it.

CXLVI. Marsh and Rainsford's Case. Trin. 30 Eliz. In the King's Bench.

IN an Action upon the Case; the Case was, That a communication was had betwixt the parties, That the Plaintiff should marry the daughter of the Defendant, in consideration of which, the Defendant promised the Plaintiff to give him 200l. but they could not agree upon the days of payment of it, after which they stole away the Defendant's daughter, and secretly married her, without the Defendant's know­ledge; yet afterwards the Defendant gave his consent to it,1 Leon. 102. and al­lowed of the said marriage; and in consideration of the said marriage, promised to pay the Plaintiff 100l. Egelton, Solicitor General for the Defendant, That the Action upon this matter will not lie; for here the consideration is precedent to the promise, whereas the consideration in such cases, ought to be future and subsequent; and as the Case is here, the Plaintiff is out of the course of consideration of marriage; for he hath stolen away and married his wife, without the knowledge or con­sent of her father: See such Case, 10 Eliz. Dyer 272. The servant of one A. is arrested in London, and two friends of his Master bail him, and afterwards A. promiseth to them, for their friendship, to save them harm­less from damages and costs, &c. It was holden that the Action doth not lie, for here is not any consideration, for the bailment was of their own heads, and it is executed before the promise; But if the Master before the enlargement of his servant had requested the Plaintiff for to bail his servant, and he had so done, the Action would have lien. Wrey, Iustice, Although the consideration be precedent, yet if it were made at the instance of the other party, the Action would have lien. But here the natural affection of the father to his daughter, is sufficient matter of consideration. If one cometh to a Serjeant at Law to have his coun­sel, and the Serjeant doth advise him, and afterwards the Client in consideration of such counsel, promiseth to pay him 20l. an Action lieth for it. And so Popham said, it had been adjudged in the Exchequer: And it is the common Practice in this Court, in consideration Quod querens deliberasset to the Defendant, &c. He promiseth to pay him so much; and as it was late adjudged betwixt Style and Smith: If a Physician, who is my friend, hearing that my son is sick, goeth to him in my ab­sence, and helps and recovers him, and I being informed thereof, pro­mise him in consideration, &c. ut supra, to give him 20l. an Action will lie forthe money; and afterwards in the principal Case Iudgment was given for the Plaintiff.

CXLVII. Williams and Linford's Case. Trin. 30 Eliz. In the King's Bench.

WIlliam's brought an Action upon the Case against Linford, 3 Len. 177. for stan­derous words spoken of the Plaintiff's land, viz. Williams is worth nothing, and do you think that the Manor of D. is his? It is but a com­pact [Page 112] between his brother Thomas and him; And farther declared, That at the time of speaking of the words, he was in speech with one J. S. to give to the said J. S. the said Manor of D. for his Manor of K. and that by reason of the said slanderous words,1 Cro. 346, 787. the said J. S. durst not pro­ceed in the said intended exchange. It was objected, That upon this matter, an Action upon the Case doth not lie; For the scandalous words were not spoken to him who was to be the Purchasor of the said Manor,Smith and Johnson's Case. but to a stranger. For in the Case betwixt Smith and Johnson, Johnson was in speech with another to sell his lands to him; and Smith said to him who was to purchase them, Will you buy Johnson's land? Why, it is troubled with more charges and incumbrances than it is worth. Wray, Iustice, There is no difference, whether words be spoken to the party, or unto a stranger, for in both cases the Title of the Plaintiff is slan­dered, so as he cannot make sale of his lands: Iudgment was given for the Plaintiff.

CXLVIII. Barefoot and Luter's Case. Trin. 30 Eliz. In the King's Bench.

THE Case was, A. B. and C. Ioynt-tenants in Fee, C. granted his part unto D. and afterwards A. B. and D. Leased for years, ren­dring Rent, and afterwards A. died, and they brought an Action of Debt for the Rent reserved, and declared generally, and upon the Evidence, the special matter appeared, that two parts of the Rent did belong to B. and but the third part to D. And the opinion of the Court was; That the Declaration ought to have been special upon the whole matter; For Prima facie, it was conceived that each of the Plaintiffs ought to have had the moiety of the Rent, and that is a supposal of the Declaration: But now upon the Evidence, it appeareth to the contrary: So as the Defendant nil debet, in that form; Another matter was, The Plaintiff declared of Rent of a whole year, ended at the Feast of St. Michael last past, whereas the Rent was not due at Michaelmas, as the Plaintiff had declared, but the thirtieth day after.

CXLIX. Brown and Ordinacre's Case. Trin. 32 Eliz. In the King's Bench.

HEnry Brown, and Joice his wife, Executors of Thomas Brown, brought an Action upon the Case against Van Ordinacre, Alien, and declared, That where A. and B. were indebted to the Testator, The Defendant, in consideration that the Testator respectuaret the said A. and B. pro solutione debiti praedict. per spacium unius septimanae tunc proxime sequen. to pay the Debt to the said Plaintiffs, modo sequent. viz. one moyety within one week after, and the other moiety at the end of the said week; and farther declared, That the Testator did forbear by the space of a week; and after Imparlance, Joice was summoned, and severed. The Defendant pleaded, That he did not promise, modo & forma prout pra [...]dict. Brown allegavit, and that it was alledged by both Executors. And by a Iury, De me­dietate Linguae, it was found for the Plaintiff. It was objected by Coke, That here is not any issue, prout Brown querens allegavit, where in truth, it was alledged by both the Executors, before se­verance, and not by Brown onely. Also here is not any sufficient consideration alledged; for the Plaintiff hath declared, That he hath forborn by a week, without saying, next following, as the con­sideration [Page 113] is laid in the Declaration; But that was not allowed, for so it shall be intended. It was also objected, That the Declaration is contrary to it self; for it shewed, That in consideration that the Testa­tor should forbear for a week, he promised to pay him within a week; but that exception was not allowed: For the week, in the Assumpsit, shall be construed, the week after the week in the consideration. Ano­ther exception was against the trial; for the Defendant being an Alien, The Venire facias was to summon twelve persons, Quorum quilibet eo­rum habeat 4.l. in lands of annual Rent, and that cannot be; for Aliens cannot have lands, not being made Denizens: By the Common Law before the Statute of 27 E. 3. An alien by the Grant of the King, might have an Action depending betwixt him and a Denizen, per medietatem Linguae, which see 22 E. 3. 14. and afterwards to make the same a ge­neral Law, the Statute of 27 E. 3. was made; but the same doth not extend to cases where the King was party, which defect was supplyed by the Statute of 28 E. 3. cap. 13. Afterward came the Stat. of 2 H. 5. by which it is enacted, That where the debt or damages amount to 10 marks every Iuror retorned for the trial, should be able to expend lands of the value of 40s. which was mischievous as to aliens; and for the remedy of that, The Statute of 8 H. 6. cap. ult. was made, which took away the effect thereof, as unto aliens; Then came the Statute of 27 Eliz. which enacted, That every Iuror, &c. should expend 4 l. lands, but that is where 40 s. was required onely, and doth not extend to our Case; and therefore the Venire facias in our Case, was not well awar­ded, To which it was said by the Clarks, That after the Stat. of 27 Eliz. It had always so been, to make the Venire facias generally accor­ding to the Statute; but that is not a thing material, and the Sheriff needs not regard that: Wherefore it was holden; That the Venire facias in the principal Case was well awarded.

CL. Mingey and Earl's Case. Pasc. 32 Eliz. In the King's Bench.

IN Debt upon an Obligation, The Defendant pleaded,1 Cro. 212, 267. That the Obligation was with condition, That whereas the Defendant had sold to the Plaintiff certain wood, growing upon certain lands, called S. in the County of Sussex. If the Plaintiff might quietly take and enjoy the said woods; and if the ground whereupon it groweth be four miles from the Town of Rye, that then, &c. And for plea he said, That the Plaintiff had quietly taken and enjoyed the said wood, and that the said land, by the next high and usual way for carriages, is 4000 paces from the Town of Rye, reckoning to e­very pace five foot; upon which the Plaintiff did demur in Law. Gawdy, Iustice, For the computation of a mile, in common under­standing, it is 1000 paces, and if it shall be counted by the common way, is the doubt; but the meaning of the Parties was, That the Plaintiff by felling of that wood, should not encur the damage of the Statute of 23 Eliz. cap. 4. And the Statute doth not respect the way of carriage, but that altogether, and to all intents, it be the distance of four miles betwixt the place where, &c. and the said Town of Rye; and here it is not material which is the common and usual way to Rye for carriages; but the nearness of the place where, &c. Quomodocunque, is the matter; and therefore the De­fendant ought to have pleaded, That the place where, &c. is every way distant four miles from Rye; and as to that, that he hath an­swered four miles, with 4000 paces, the same is well enough; for although he doth not answer the direct the words; yet if he doth [Page 114] answer in effect, it is well enough; for 1000 paces, and a mile, are all one in substance: Wray, The distance shall be accounted the nea­rest way, not as a Bird may fly.

CLII. Wellock and Hammon's Case. Trin. 31 Eliz. In the King's-Bench.

3 Co. 20. 1 Cro. 204, 205.THis Case is reported by Sir Edw. Coke, in his 3 Reports: See the principal case there. Here is a Limitation, and not a Condi­tion; for if it should be a Condition, it should descend to the Heir at the Common Law, which is the Devisee, and so shall be extinct in his person, and then the restraint is of no effect, for there shall be then no means to compell the Heir who hath the Land, to pay the Legacies, nor have the Legatories any remedy to compell the son to pay the Legacies, which shall not have effect, if it be not taken by way of Limitation: and to that intent, Scholasticas Case was cited, 15 Eliz. Dyer, 317. And this word, paying, in a Devise, shall never be construed to be a Condition. And it was holden by the Iustices, That where a man deviseth lands to his younger son, paying such a sum un­to such, the Devisee hath a Fee-simple; and if he do not pay the mo­nies accordingly, his Estate shall determine, by the same Limitation, and shall go to the heir without any other limitation, and the quantity of the monies, be it great or small, is not material: And they were of opinion also, that here the monies were not payable, but upon request: Coke, 2 Cro. 56, 57. 1 Roll 439. If a man be bound to perform Covenants, and one Covenant is to pay Legacies, there he needs not pay them without a demand; But where one is expresly bounden to pay such a Legacy, there he must pay it at his peril. And he said, That the Case, 28 H. 8. Dyer 33. is not Law; for there it is holden by Fitz-herbert and Baldwin, That where land was devised unto the Prior, and Convent of S. Barthol. Ita quod red­dant annuatim Decano & Capitulo Sancti Pauli. 5 l. and they fail of payment of it, that their Estate shall cease, and the Dean and Chapter, &c. shall have, &c. such conditions void. And that upon one Fee-simple, ano­ther Fee-simple cannot be limited; For by Coke, Common experience is otherwise, That upon a Fee-simple determinable, another Fee-simple may be limited; which Gawdy, Iustice granted: And as to the principal Case, Iudgment was given, with the limitation.

CLIII. Parker and Harrold's Case. Pasc. 28 Eliz. Rot. 485. In the King's Bench.

3 Len. 142.IN Debt upon an Obligation, The Condition was, That where­as the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty, If the Defendant shall permit the Plaintiff to use the said Office, and take the profits of it wholly to his own use during his life, without lett or interrup­tion done by him, that then, &c. The Defendant Pleaded, That the custome of the Realm of England is, That the Lord Admiral for the time being, might grant the said Office, and that such grant should be good but for the life of the Grantor;antea. 103. and shewed farther, That the Lord Clin­ton, Lord Admiral; granted the said Office unto the Plaintiff and the Defendant, and died; and that the Lord Howard was appointed Lord Admiral, and that he 27 Eliz. granted the said Office to one Wade, who ousted and interrupted him, before which time, the Defendant did suffer the Plaintiff to enjoy the said Office, and to take the profits of it, upon [Page 115] which the Plaintiff did demur in Law, Coke argued for the Plaintiff, That the Plea of the Defendant is not good; for he hath not entitled the Lord Admiral to grant the Office; for he hath said, That the cu­stome of the Realm of England is, and that cannot be good, for it can­not be tried; for a Visne cannot be from the Realm of England: Al­so if it lie through all the Realm, then the same is Common Law, and not custome, which see, Br. Custome 59. and see 4 & 5 Ph. & Ma. 152, 153. an express Case of the same Office, and there he prescri­bed, Per consuetudinem in Curia, &c. and also that such grant is good but during the life of the Admiral who granteth it: Also he doth not answer to any time after the grant of the Admiral Howard; for if we were lawfully put out by Wade, yet the Defendant against his Bond, shall not put us out, or interrupt us: As 5 E. 4. 115. In a Quare Impedit against an Abbat, and the Incumbent, who make default up­on the distress, upon which a Writ was awarded to the Bishop for the Plaintiff, upon which the Bishop retorned, That the Incumbent had resigned, of which he hath given notice to the Prior, and lapse incur­red; and the Bishop collates the former Incumbent, and then this Writ came to him; Now, although the Incumbent be in by Title, yet he is bound by the Iudgment: So here, although the Defendant hath another Title, and the former Title of the Plaintiff be deter­mined, yet against his own Bond and Deed, he shall not put out the Plaintiff, &c. And the Court was clear of opinion, That Iudg­ment should be given for the Plaintiff; but afterwards the Cause was compounded by order of the Lord Chancellour.

CLIII. Bedel's Case. Trin. 32 Eliz. In the King's-Bench.

THE Case was,3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann. and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands. A. brought an Action of Covenant; the Defendant pleaded, That before the day of payment the Plaintiff ousted B. of his Farm: It was mo­ved by Godfrey, that it was no Plea, because this is a collateral sum, and not for Rent issuing out of Land: Also the Defendant is a stran­ger to the Contract for the Farm: But the opinion of the Court was to the contrary; for the Defendant hath covenanted, that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant, and here is Quid pro Quo; and here the consideration upon which the Covenant is conceived, (scil.) the Farm, and the occupa­tion of it, is taken away by the act of the Plaintiff himself.

CLIV. Heal's Case. Pasch. 30 Eliz. In the King's-Bench.

HEal, a Bencher of the Inner Temple, being at the Bar; Wiat, a­nother Apprentice at Law, informed the Court against the said Heal, and shewed, That where his Client had obtained a Iudgment in the King's-Bench: The said Heal, being of Council with the other part, did advise his Client to bring the party, who had obtained the Iudgment, into the Chancery, and he procured an Order against him,Co. 3 Inst. 12. 123, 124. 4 Inst. 86, 91. by which he was cast into Prison: Which matter Heal could not ex­cuse, but submitted himself to the Court, saying, That he had seen a precedent which induced him so to doe: and that was the Case of one [Page 116] Prince, Princes Case. where a Iudgment given in this Court was drawn into que­stion and examined in the Chancery: But the Iustices said, That the same was an ill precedent, and against the Statute of 4 H. 4. which is, That no Iudgment be undone but by Error or Attaint.

CLV. Gray and Constable's Case. Pasch. 30 Eliz. In the King's-Bench.

SIR Thomas Gray covenanted with the Lady Constable, That where he is possessed of a Lease for twenty one years of certain Lands, That he will assure, convey and assign the said Lease to one Nevil, excepting the two last years of the said twenty one years: and he said Sir Tho. Gray was bound in a Bond to perform the Covenants of the said Indenture; upon which Indenture the Lady brought Debt a­gainst the said Sir Tho. Gray, who pleaded the Conditions, and the performance of them: The Plaintiff replicando said, That the De­fendant non assuravit, conveiavit, & transposuit, Anglice, set over, the said Lease; upon which they were at issue: And at the day of the Nisi Prius, it was moved by Cooper and Beaumont, That the Issue was mis­joined; for the Defendant pleads (as the Covenant it self is) That he had assured, conveyed, and assigned the Lease, and so pleaded the performance of other Covenants, &c. The Plaintiff assigned the breach in this, Quod non assuravit, conveiavit, & transposuit, Anglice, set over; which word [transposuit] is not in the Covenant, nor in the pleading of the performance thereof: and the English word [set over] although it sounds the same with assigning, doth not help the matter; and if the Latin word doth not agree with the matter, non refert of the English word, although in the Plea there be this word Anglice [set o­ver.] Note, the Covenant was (ut supra) The Plaintiff assigned the breach, Quod non assuravit, conveiavit, & transposuit, Anglice [set over,] &c. And the Defendant pleaded, Quod assuravit, conveiavit, & transposuit, Anglice, set over, &c. And the Court was clear of o­pinion, That the Issue for that cause was not well joined: And after­wards, by the assent of the parties it was amended.

CLVI. Doghead's Case. Pasch. 30 Eliz. In the King's-Bench.

Hutt. 35. Hob. 250. Antea 110. 1 Cro. 177. And. 116.AN Information was upon the Statute of 27 Eliz. cap. 4. by the party grieved; which Statute gives unto the King one moyety of the value, and the other moyety to the party grieved: The Plain­tiff was nonsuit; It was holden by the Court, that he shall not pay costs and damages by the Statute of 18 Eliz. for the Statute (as the Title of the same doth imply) is to redress Disorders in common In­formers; and so is the Preamble: and the words also of the clause of costs and damages are [Every such Informer] and so by Ive, Secon­dary of the Crown-Office, An Action given to the party grieved is not a popular Action; and the Statute of 18 Eliz. extends onely to popular Actions.

CLVII. Cony and Chomley's Case. Pasch. 30 Eliz. In the King's-Bench.

IN an Ejectione Firmae, after Verdict in Arrest of Iudgment, it was moved, That the Plaintiff had declared in Ejectione Firmae, Quod cum Robertus Diggon per Indenturam suam gerent. dat. 20 Maii, 1 Cro. 773. 890. di­misit, &c. where he ought to have said, iisdem die & anno: For al­though the Indenture bear date (ut supra) yet it may be that it was delivered at another day, and then it doth begin to be a Demise. And if in an Action upon the Case upon Assumpsit to pay money upon re­quest, although it be found for the Plaintiff, yet if no day be put in the Declaration when the request was made, but onely [licet saepius requisitus] in case where a request ought to be made, there the Plain­tiff shall not have Iudgment; as it hath been oftentimes adjudged, Quod omnes Justiciarii concesserunt: But yet afterwards, notwithstan­ding the Objection aforesaid, Iudgment was given for the Plaintiff.

CLVIII. Marsh and Jones's Case. Mich. 29 and 30 Eliz. In the Common-Pleas.

IN a Replevin, the Case upon the Evidence was,3 Len. 114. That before the Statute of Quia Emptores terrarum, a man made a Feoffment in Fee, to hold of him by the service, solvendi post quamlibet vacatio­nem sive alienationem, the value of the annual profits of the Lands: And it was holden by the Court, That the value shall be intended such a value, as was the value at the time of the Feoffment made, and not as it is improved by succession of time.

CLIX. Willoughby's Case. Mich. 29 and 30 Eliz. In the King's-Bench.

WIlliam Willoughby and two other were indicted,1 Cro. 3 Len. 216. That whereas the Parson of the Church of D. and all his predecessours have used to have Common in such a place, the said Willoughby, &c. vi & armis, &c. had inclosed it, and the Inclosure was upon their own Lands: It was moved, That upon this matter they ought not to be indicted, but the party grieved is put to his Action; as where a Pre­sentment is made of a Disseisin: See 27 Ass. 20. And it was the Case of one Morden, Morden's Case. 1 Cro. Ma­dox Case. 29 Eliz. upon the stopping of a Way upon his own Land: And it was said, That if it should be upon the Lands of ano­ther, it were not material: for it is but a hindrance from the taking of Common, which cannot be vi & armis. Also it was said, That the Indictment is recorded and certified, as found before the Iustices of Assise and Gaol-delivery, and they cannot take such Presentments: And although the said Iustices of Assise and Gaol-delivery were in rei veritate also Iustices of the Peace, yet the Indictment being recor­ded, and certified to be taken before them, in quality of Iustices of the Peace, will not help it: for the Court shall not respect any other authority, but that which appeareth upon Record; and therefore for the causes aforesaid they were discharged by the Court.

CLX. Collet and Robston's Case. Error. Hill. 30 Eliz. In the King's-Bench.

3 Len. 149. COllet and Andrews recovered in a Writ of Account against Robston: Hil. 29 Eliz. Rot. 1. and now Robston brought a Writ of Error, and assigned for Error, That whereas the said Writ of Account was brought against the said Defendant as Receiver of Monies, for to render Ac­count, quando ad hoc requisitus fuerit, the said Writ ought to have been more special: But the opinion of the Court was, That the Writ in his generalty was holden good: And so it was adjudged in the Case of one Gomersal, (scil.) quod reddat ei rationabilem computum suum de tem­pore, quo fuit Receptor Denariorum ipsius A. Another Error was as­signed, That the Iury had assessed damages which ought not to be given in an Action upon Account: which see 2 R. 2. Acco. 45. and 2 H. 7. 13. But see the Book of Entries, fo. 22. In a Writ of Account against one, as Receivor to Account render, damages were given: For if my Bailiff,1 Leon. 302. by imploying of my Moneys, whereof he was the Receivor, might have procured to me profit and gain, but he neglects it, he shall be chargeable to me in right, and shall answer for it. And here in our case, damages shall be given: and afterwards, notwith­standing all objections made to the contrary, the Iudgment given be­fore was affirmed.

CLXI. Yates's Case. Hill. 30 Eliz. In the King's-Bench.

3 Len. 231. A Writ of Error was brought by Yates and others upon a Iudgment given in a Writ of Partition; and it was assigned for Error, that the Writ of Partition was not sufficient; for it is there set forth, That the Plaintiffs insimul & pro indiviso tenent cum defendente, &c. and do not shew, of what Estate, or whose inheritance: See F. N. B. 61. 5. and 62. a. insimul & pro indiviso tenent de haereditate quae fuit A. matris of the Plaintiff and the Defendant.1 Cro. 759, 760. And yet see F. N. B. 62. A. A Writ of Partition betwixt strange persons, without naming haereditate in the Writ: And see also that a Partition of Lands in London, without shewing of what Estate:Courtney and Pole­wheel's Case. Finch and Firrel's Case. L. Cheney and Bell's Case. See Register 76. 6 Eliz. in a Partition by Court­ney against Polewheel, no Estate shewed in the Writ: so betwixt Finch and Firrel, and betwixt Fry and Drake, 14 Eliz. Devon. 26 Eliz. betwixt the Lord Cheney and Bell: and Mich. 4 and 5 Ph. and Ma. Rot. 208. It was holden, That it is not necessary in such a Writ to shew the Estate: and such also was the opinion of the Court in the principal Case: but Tenants in common ought to shew it in the Count: And the Iudg­ment given was affirmed.

CLXII. Phillips and Stone's Case. Mich. 29 and 30 Eliz. In the King's-Bench.

IN Debt upon an Obligation, the Defendant pleaded the Statute of 32 H. 6. upon which this special matter was found, That one J. S. had heretofore recovered against him 100l. in an Action of Debt, and upon the Capias ad satisfaciend. he was taken and committed to the Plaintiff, who was Gaoler, &c. to the Sheriff, and so being in Exe­cution [Page 119] he escaped and afterwards he was re-taken by the Plaintiff, and kept in prison; and so being in prison, made the Bond upon which the Action is brought: It was said by the Court, That if a Prisoner being in Execution, escapes with the permission of the Gaoler, the Execution is utterly gone and extinguished, and the Plaintiff, at whose Suit he was taken in Execution, shall never resort to him who escapes, but shall hold himself to the Goaler for his remedy: but if such a Prisoner escapeth of his own wrong without the privity or con­sent of the Gaoler, the Gaoler may well take him again for his in­demnity, untill the Plaintiff hath determined his Election, whether he will have his remedy against the Gaoler, or that he will maintain his Execution: 13 H. 7. 1, and 2. But as unto the Statute of 23 H. 6. the Court was of Opinion, That posito that the party who escapes cannot be taken again; yet being taken, the Bond which is taken colore Officii, is within the said Statute, because the party was re­taken colore Executionis, and so the Bond was void.

CLXIII. Gering's Case. Mich. 29 & 30 Eliz. In the King's Bench.

IN Debt upon an Obligation, against one as Executor;1 Len. 87. the Case was, That the Testator of A. by his Will, appointed certain lands, and named which should be sold by his Executor, and the monies thereof coming, to be distributed betwixt his daughters, when they have accomplished the age of one and twenty years. The lands are sold, and if the monies thereof being in the hand of the Executor, un­till the full age of the daughters shall be Assets to pay the debts of the Testator,, was the question; and it was the opinion of the whole Court, that the said monies should not be Assets; for they said, that that money is limited to a special use: Quaere of this Case; For I have heard, that it was afterwards resolved in another Case, that the mo­nies in the like Case remaining in their hands should be Assets.

CLXIV. Davies and Percie's Case. Mich. 29 & 30 Eliz. In the Common Pleas.

BEtween Margaret Davies and one Perce, the Case was,2 Roll 284. Goldb. 58. That one Anth. Perce, upon speech of a marriage to be had betwixt the said Anthony, and the mother of Margaret, covenanted by Indenture with certain friends of the mother, to pay to all the daughters of the mo­ther 20l. a piece at their several ages of four and twenty years, and to perform the Covenant, was bound to the said friends in an Obli­gation. Anthony Perce made his Will, and willed, that his Executors should pay to each of the daughters 20l. at their several ages of four and twenty years, in discharge of the said Covenant, and died; Now the said Margaret sued the Executors in the Spiritual Court for the 20l. bequeathed to her, and upon this matter, the Executors prayed a Prohibition: And by the Lord Anderson, a Prohibition will lie; for here is no Legacy, but the Will refers to the Covenant, and is in discharge of the Covenant: As if A. be indebted to B. in 20 l. And if A. by his Will willeth that his Executors shall pay to the said B. 20l. in discharge of the said debt, the same is not any Legacy, but a Declaration that the intent of A. is, that the debt shall be paid. Periam, Iustice, was of the same opinion as the Lord Anderson; and Anderson said, If a Legacy be bequeathed to me, and the Executor covenants to pay [Page 120] me the said Legacy, and afterwards J. sueth the Executor in the Spiri­tual Court, he shall have a Prohibition; Quod caeteri Justiciarii negave­runt, See F. N. B. 44 Br. If the Testator by his Will charge his Exe­cutors to pay his debts and his creditors, they do not pay them, and the creditors sue them in the Spiritual Court, they shall not have a Prohibition, Vide 6. H. 3. Prohib. 17. which Anderson Vehementer negavit; and afterwards the Iustices looked and advised upon the Indenture, and found that the in­denture and Obligation were made to the friends of the mother of the daughters, and not to the daughters themselves, to whom the Lega­cies were give and bequeathed; and therefore were of opinion, that a Prohibition did not lie.

CLXV. Thorp and Tomson's Case. Hill. 30 Eliz. In the Common Pleas. Rot. 336.

IN Ejectione firmae, It was found by special Verdict, That one Thimble­thorp was seised of the lands where, &c. and by Contract, sold the same to Thorp, but no assurance was yet made; and afterwards, Thorp before any assurance made, sold likewise the said lands to Tom­son, and afterwards, Thimblethorp made assurance thereof to Tomson, and afterwards Tomson being seised, devised the Lands to his younger son,Dyer 376. by these words: I bequeath to R. my son, all the lands which I pur­chased of Thorp, whereas, in speaking the truth according to Law, he purchased them by immediate assurance of Thimblethorp, although he did contract with Thorp for the same; And the opinion of the whole Court was without argument either at Bar, or at the Bench; That the Devise was good; for in the repute of the people, they preseised of Thorp, for Tomson paid the monies for the same to Thorp, and the Court commanded Iudgment to be entred accordingly: And after­wards Exception was taken to the Verdict, because it is not found by what service the land devised was holden, Socage, or Knight-service; nor that the Devisor is dead; and these were holden to be material Exceptions, and for that cause, the Iudgment was stayed, and after­wards the Verdict was rejected, and a Venire facias de novo awarded.

CLXVI. Grove and Sparre's Case. Hill. 30 Eliz. In the Common Pleas.

AN Action of Trespass was brought by Grove against Sparre, Process continued untill Sparre was outlawed; and now it was moved unto the Court, to avoid the Outlawry, That the original Writ, and all the Iudicial Process thereupon are directed Vice-Com. Wigorn. and in the Filazar's Roll, in the Margent is written, Here­ford, and in the body of the said Roll is written, Et praedictus Grove ob­tulit se quarto die post, Et Vicecomes modo mandat. quod praedictus Spar non est inventus, &c. Ideo praeceptum est Vicecom. &c. and at the Capias retorned, it is entred in the Roll as before, Hereford: whereas the Capias is directed Vicecom. Wigorn. as of right it ought to be: and the Roll was perused by the Court, and it was, ut supra, and that with­out any suspicion of Rasure; for which the Court gave day to the Queens Serjeants to advise themselves to maintain the Outlawry; and the Defendants Council prayed, That a Recordatur be made in what Estate the Roll now is, for doubt of amendment by way of Ra­sure, or otherwise; which was granted by the Court.

CLXVII. Rushton's Case. Mich. 33 Eliz. In the Exchequer.

RUshton was indebted to the Queen in 200 marks,See this Case vouched in C. 4 part, in Palmer's Case. 3 Len. 204. upon which issued an Extent against him out of the Exchequer to levy the said sum to the Sheriff of Suffolk; and it was found by Inquisition, That Rush­ton 22 Junii, 22 Eliz. was possessed of a Lease for the term quorundam annorum adhuc venturorum; and the debt of the Queen did begin 12 Febr. 17 Eliz. Exception was taken to this Office, because that the term is not certainly found but generally quorundam annorum; and it was said by Coke, That the Office was good, notwithstanding that Exception, for the Queen is a stranger to the Lease, and therefore ought not to be forced to find the precise certainty; which see in Partridge's Case in Plowd. The Defendant had made a Lease Pro termino quorundam annorum contra formam statuti: Also Rushton came not to the Lease by Contract, but by compulsary means, as by Execution, &c. And here we are not in the Case of pleading, but of an Office, where such precise form is not requisite: As if it be found by Office, that J. S. was seised in tail, without shewing of whose gift the same was, it is good; so an Indictment, De morte cujusdam hominis ignoti, the same is good, but such Endictment taken before the Coronor, is not good: And that a Lease for years may be extended, see 21 Ass. 6. If a man be indebted to the Queen, being a Lessee for years, and afterwards before any Extent comes, sells his term, the same cannot be exten­ded after. And here it appears, That this Lease was to begin at a day to come, and that the Lessee did enter before the day, by which he was a Disseisor; and so he said he had lost his term. Te­nant for the life of another is disseised, and dieth, he remains a Dissei­sor, and the occupancy doth not qualifie such disseisin: And afterwards the Inquisition for the incertainty aforesaid was holden void, and a new Commission was awarded.

CLXVIII. Holland and Boin's Case. Mich. 29 Eliz. In the Common Pleas.

IN a Replevin by Thomas Holland against William Boin's,3 Len. 175. 1 Len. 183. Ow. 138. who made Conusans, as Bailey to Thomas, Lord Howard, and shewed, that the Prioress of the late dissolved Priory of Hollywell was seised of the Ma­nor of Priors in the County of Hertford, and granted the same by words of Dedi & Concessi pro certa pecuniae summa, to Thomas Audley, Chan­cellor of England, and his Heirs, who entred and died seised, and that the said Manor, inter alia, descended to Mary, daughter and Heir of the said Thomas Audley, who entred, and also died seised, by force whereof the said Manor descended to the said Thomas Lord Howard, &c. and shewed, that the said conveyance, by the prioress to Audley bore date 4 Novemb. 29 H. 8. and then enrolled in the Chancery. The Plaintiff in Bar of the Avowry, shewed, that after the making and enrolling of the said Conveyance, the said Prioress Leased the said land to Sir H. Parker for 99 years, and conveyed the said land to him, and shewed farther, That the said Conveyance specified in the Conusans was primo deliberatum, 4 Nov. 31. H. 8. Absque hoc, that the said Prioress, the said 4 Novembris, 29 H. 8. dedit & concessit, the said Ma­nor to the said Audley, upon which it was demurred in Law; and the Court was clear of opinion, That the averment of primo deliberatum, [Page 122] against a Deed enrolled ought not to be reversed, for by the same reason it may be averred never delivered, and so upon the matter, Non est factum: And it was farther objected, That bargain and sale by a Cor­poration is not good; for a Corporation cannot be seised to another use, and the nature of such Conveyance is to take effect by way of use in the Bargainee, and after the Statute to draw the possession to the use; But the Court utterly rejected that Exception was dangerous,Note, Pasch. 30 Eliz. it was adjudged for the Plain­tiff in the Re­plevin; (scil.) the Conveyance of the Prioress was not well pleaded; for it ought to be plead as a Bargain and Sale, and not as a grant: and Judgment was given accordingly. for such was the Conveyance of the greater part of the possessions of Mo­nasteries: And by Shuttleworth Serjeant, Although such a Corpora­tion cannot take an Estate to the use of another, yet they may charge their possessions with an use to another.

CLXIX. Venable's and Serjeant Harris's Case. Mich. 28 & 29 Eliz. In the King's Bench.

Quaeries. Hughs R. 13. 3 Len. 185. 4 Len. 112.THE Case was, a Lease was made to A. and B. for their lives, the Remainder to Thomas Venables in tail, who 3 Eliz. was attainted of Felony; 23 Eliz. was a general pardon: Thomas Venables 24 Eliz. levied a Fine, and suffered a common Recovery to the use of Harris Serjeant. An Office is found, Harris traverseth the Office, and upon that there is a demurrer. Leke argued, That traverse doth not lie in this Case: 4 H. 7. 7. where the King is entitled by double matter of Record, the party shall not be admitted to traverse, nor to his Mon­strans de Droit, but is put to his Petition, which see, 3 E. 4. 23. in the Case of the Earl of Northumberland, 3 Len. 75. where the Tenant of the King is attainted of Treason, and the same found by Office: See also 11 H. 4. in the Case of the Duke of Suffolk, and that is not helped by the Statute of 2 E. 6. cap. 8. For the words are untruly found by Office, but here the Office is true. By this Attainder, Thomas Venables is ut­terly disabled to do any Act; for by Bracton, a person attaint, shall for­feit Patriam, Regnum & Haereditatem suam: 11 H. 4. one was attainted of Felony, and before Office found, the King granted over his Lands: Also he is not helped by the general pardon; for before the general par­don, he had a special pardon, so as the general pardon non operatur. But the Iustices said, The forfeiture did remain untill the general par­don. Harris, contrary; And he put the case of Sir James Ormond, 4 H. 7. 7. where the King is entitled by matter of Record, and the subject confesseth the King's title, and avoids it by matter of as high na­ture as that is for the King, Traverse in that case lieth: and if the King be entitled by double matter of Record, if the party doth avoid one of the said Records by another Record, he shall be admitted to his traverse; and so here we have the pardon, which is a Record, and that shall avoid the Record of the King: See 3 E. 4. 24. in the Earl of Northumberland's Case; and here the pardon hath purged the forfei­ture, in respect of the offence: and he said, Tenant in tail being at­tainted of Felony, shall not lose his lands, but the profits onely, for he hath his Estate by the Will of the Donor, and there is a confi­dence reposed in him: as in Walsingham's Case, he cannot grant his Estate over: and see Wrothe's Case; An annuity granted, pro Con­silio impendendo cannot be granted over or forfeited, for there is confi­dence: And see Empson's Case, and Dyer 2. 29 Ass. 60. If the issue in tail be outlawed of Felony in the life of his father, and getteth his Char­ter of pardon in the life of his father, after the death of his father he may enter; but by Thorp, If the issue in tail getteth his Charter of pardon after the death of his father, then the King shall have the profits of the lands during the life of the issue: And the Case of [Page 123] Cardinal Pool was debated in the Parliament, Cardinal Pool's Case, 27 Eliz. That he being Dean of Exeter, was seised of Lands in the right of his Church, and was attainted of Treason: It was holden, That he should forfeit the profits of such Lands: But admit, that by this Attainder the Land be forfeited, yet the party hath the Freehold until Office found: See Ni­cols's Case on the Commentaries: and see also the Case of the Dutchy in the first Commentaries. And here the Pardon hath dispensed with the Forfeiture. Tenant of the King alieneth in Mortmain, before Office found, the King pardons it, this is good. The Lord Poynings convey­ed all his Lands to Sir Adrian Poynings, who was an Alien, and after­wards is made a Denizen, and the King pardons him, and releaseth unto him all his right in the said Lands without any words of Grant; and it was adjudged, the same shall bind the King. And he said, that he had found a good precedent, 14 H. 7. where a general pardon before seisure into the King's hands was allowed, contrary after seisure with­out words of Grant. See Br. 29 H. 8. Charter of Pardon 52. If a man be attainted of Felony, and the King pardons him all Felonies, & exe­cutiones eorundem, the same shall not serve for life and Land, if no Of­fice be found, but it shall serve for the Goods without words of Restitu­tion and Grant; for the King is entituled to them by Outlawry without Office, but the King is not entituled to the Lands untill Office be found: See ibid. 33 H. 8. 71. The Heir intrudes, and before Office found the King pardons; now the Heir is discharged as well of the issues and pro­fits, as of the Intrusion it self, and also of Livery: But a pardon gi­ven after Office is available for the Offence, but not for the issues and profits: And he cited the Case of Cole in the first Commentaries, where a pardon was granted Mesne betwixt the stroke and the death: See 35 H. 6. 1. 1 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case, 11 Eliz. Dyer 284, 285.

Egerton, Solicitor to the contrary; This Traverse is not good; for he that traverseth, hath not made Title to himself as he ought, up­on which the Queen may take Issue; for it is at the Election of the Queen to maintain her own Title, or traverse the Title of the party. At the Common Law, no Traverse lay but where the Livery might be sued; but that is helped by the Statute of 34 E. 3. cap. 14. but where the King is entituled by double matter of Record (as in our case he is) no Tra­verse is allowed until 2 E. 6. cap. 8. And in such case two things are requisite: 1. That the Office be untruly found: 2. That the party, who is to be admitted to his Traverse, have just Title or Interest of Estate of Freehold, &c. But in our case, The Office is confessed by the Traverse to be true, although that the Conveyance be not truly found: Also Harris, at the time of the Office found, had not just Ti­tle but an interest came unto him long time after the Office found: Also the Traverse is not good, for he traverseth the matter of the Con­veyance, which is not traversable; for if the King hath Title, non re­fert quomodo, or by what Conveyance he hath it. As to the matter in Law, (scil.) Tenant in tail in Remainder is attainted of Felony, if the King during the life of Tenant in tail shall have the freehold? and he conceived that he should, for it shall not be in abeyance, and it cannot be in any other; for when he is attainted, he is dead as unto the King. The chief Lord cannot have it, for Tenant for life is a­live, and also he in the Remainder in Fee, &c. the Donor shall not have it, for the Tenant in Remainder is not naturally dead, but ci­villy; and the Land cannot revert before the Tenant in tail be natu­rally dead without issue: but if there were any other in whom the Free­hold might vest and remain, then the King should not have the Free­hold, but onely the profits. So if the Tenant be attainted, the Lord shall have the Lands presently; 3 E. 3. 4 E. 3. The Husband, seised in the right of his Wife, is attainted of Felony; the King shall have but the profits, for the Freehold vests in the Wife, and if the Lord entreth, [Page 124] the Wife shall have an Assise. And Tenant in tail may forfeit for his life, as he may grant for his life: See Old N. B. 99. If Tenant in tail, for life, dower, or by the curtesie, be attainted of Felony, the King shall have the Lands during their lives; and after their deceases, he in the Reversion shall sue unto the King by Petition, and shall have the Lands out of the King's hands: and there it is farther said, That the Lord by Escheat cannot have it, for the party attainted was not his very Tenant, nor he in the Reversion, for the term yet endures. But now it is to see, if the Freehold be in the King without Office? and he conceived and argued, that it was: Where the King is entituled to an Action, there the King ought to have an Office, and a Scire facias upon it: as where the King is entituled to a Cessavit, Action of Waste, &c. 14 H. 7. 21. where the Entry in case of a common person is necessary, there it is requisite that there be an Office for the King: As if a Vil­lain of the King purchaseth Lands, or an Alien born, &c. so for a con­dition broken, Mortmain, &c. And in some cases, an Office is onely necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey, as by Office: as if the King be to take by descent, or as the Case is here. And true it is, that a person attainted of Felony may during his Attainder purchase Lands, and yet he cannot hold it against the King: and it is clear, that by the Common Law in such cases, the Land was in the King, but not to grant, for the Statute of 18 H. 6. was an impediment to it: but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office: See Doughtie's Case, 26 Eliz. And in our Case, an Office is not necessary to entitle the King, but for explaining of his Title: and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office; so where the King's Tenant dieth without Heir; or Tenant in tail of the Gift of the King dieth without issue: See Br. Office before the Es­cheator 34. and see 13 H. 4. 270. A man is attainted of Treason, the King before Office grants his Lands and Goods. Things which lie in Grant, as Advowsons, Rents, Remainder, such things upon At­tainder are in the King without Office. As to the general pardon of 23 Eliz. he said, That that doth not extend to this Case; and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen, so if the Queen had but a Right or Title onely.

Popham, Attorney General; By this Attainder the Estate of him in the Remainder in tail, accrueth unto the Queen for the life of him in the Remainder; for by our Law, Felony is punished by the death of the Offendor, and the loss of his Goods and Lands for the exam­ples of others, therefore nothing is left in the party: Tenant for life is attainted of Felony, the King pardoneth him his life, yet he shall have his Lands during his life, and he may dispose of the same for his life: And so is it of Tenant in tail, for he may forfeit all that which he hath, and that is an Estate for his life, which is a Freehold. If Lands be given to one and his Heirs for the term of the life of ano­ther, and the Donee be attainted of Felony, the King shall have the Land during the life of Cestuy que vie, for the Heir cannot have it, be­cause the bloud is corrupt, and there is not any occupancy in the case: for 17 E. 3. the Iustices would not accept of a Fine for the life of another, because there might be an Occupant in the case: But for a Fine of Land to one and his Heirs for the life of another, they would take a Fine, for there is no mischief of occupancy. Land is gi­ven to A. for life, the Remainder to B. for life, the Remainder to the right Heirs of A. who is attainted of Felony; B. dieth, now the King hath the Fee executed. And here in our Case, If the Tenant for life had been dead, no Praecipe had lien against him in the Remainder [Page 125] being in possession, but the party who hath right is to sue unto the King by Petition. 4 E. 3. If one seised of Lands in the right of his Wife for life be attainted, the King shall have exitus & proficua: but he conceived that Case not to be Law: For see F. N. B. 254 D. The Husband seised in the right of his Wife in Fee, is outlawed for Fe­lony, the King seiseth, the Husband dieth; now shall issue forth a Di­em clausit extremum, the words of which Writ in such case are, Quia A. cujus Terr. & Tenement. quae ipse tenuit de jure & haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar' in ipsum pro quadam Felo­nia unde indictatus fuit, &c. in Man. Domini H. patris nostri extiterunt, &c. therefore the King had not the issues onely, but also the Lands: See to the same purpose the Register 292. b. Stamford's Placita Coronae, 186, 187. affirms, That Tenant in tail being attainted of Felony, shall forfeit his Lands during his life. And he said, that the Estate of Thomas Venables was in the King without Office not to grant, for that is restrained by the Statute of 18 H. 6. but it is in him before Office, so as he who hath right ought to sue to the King by Petition, if he will have his Land: yet he conceived, that before the Statute of 18 H. 6. the King might grant the Land before Office, as it appea­reth by Thirning, 13 H. 4. 278. who was before the said Statute: So if the King's Tenant makes a Lease for years, the Remainder over to another in Fee, who dieth without Heir; the Remainder is in the King without Office, because a common person in such case cannot enter, but a claim is sufficient, and therefore it shall be in the King without Office. As to the pardon, he said, That it doth not extend to this Estate, for this is a Freehold, ergo, not within the pardon: As if the King's Tenant be attainted of Felony, and the King par­dons him all offences, and all things which he may pardon, these words shall not go nor extend to Freeholds, but onely unto personal matters, and such punishments and peins which do concern Chat­tels. But it may be objected, That by this pardon, Title of Quare Impedit, and Re-entries for Conditions broken are excepted; and therefore if they had not been excepted, they had been remitted by the pardon; and therefore this pardon shall extend to Inheritances and Freeholds: As to that, I say, That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons, and such Exceptions did begin 5 E­liz. And he said, he had been of Council in such Cases where it hath been taken, that such pardons did not extend to Freeholds: As an Abbat was disseised, and afterwards during the Disseisin the Abby is dissolved; the King makes such pardon, the same doth not transfer the Right of the King, and in that Pardon are divers Exceptions of Goods and Chattels in many cases, and therefore it cannot be inten­ded that the pardon doth extend to Freeholds. And see the said Act of pardon: The Queen grants all Goods, Chattels, Debts, Fines, Issues, Profits, Amercements, Forfeitures, Sums of Moneys; which word [Forfeiture] shall be intended of a personal Forfeiture, & non aliter, for it is coupled with things of such nature. And as to the Traverse, he said, It did not lie in this Case; for the Office is not untrue, but true in substance, although void in circumstance: And also the King here is entituled by double matter of Record, (scil.) the Attainder and the Office: and he said that the Statutes of 34 and 36 E. 3. which gave Traverse, are to be intended of Offices found vir­tute Officii, and not virtute Brevis, for then Efcheators were very trou­blesome: And the Statute of 2 E. 6. doth not give Traverse, but where the Office is untruly found; as if Tenant of the King be dissei­sed, and the Disseisor be attainted; the Queen seiseth the Land: Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit, for the Office is true: But if I [Page 126] be Tenant of the King, and seised of Land accordingly, and it was found that J. S. was seised of my Land, and attainted, &c. whereas in truth he had not any thing in my Land, there Traverse lieth, for the Office is false; and so in our Case, for the Traverse it is at the Common Law: and it was true that Venables was seised.

Coke to the contrary; and he said, That by the Attainder the Queen hath gained but a Chattel; and that notwithstanding this Forfeiture, if Venables had been in possession, a Praecipe should be brought against him: And where it hath been said by Mr. Attorney, That Writs set down in the Register are the best Expositours of our Law, the same is not so; for the Register saith, That Waste lieth notwithstanding a Mesn Remainder, which is not now Law, but it hath been clearly ruled to the contrary: and see accordingly 50 E. 3. the Register there­fore and the Writs are subject to the Iudgment of our Law; and the Writ of Diem clausit extremum is not to the contrary; for I confess, that in such case the Land shall be seised into the hands of the King, but the King shall not have but a Chattel therein: It hath been argued, It may be granted,Roll. Tit. Grant. 4 Len. 112. ac. Godb. 351. a. therefore it may be forfeited; Nego Consequentiam: for a man seised in the right of his Wife, may grant, but not forfeit: Gardian in Socage may grant, but not forfeit; the Husband may grant a term for years, which he hath in the right of his Wife, but he cannot forfeit it. A woman Inheretrix taketh a Husband, who after­wards is attainted of Felony, the King pardons him, they have issue, the Husband shall be Tenant by the curtesie, which proveth, that the King hath not the Freehold by that Attainder. Before the Statute of Westm. 2. Tenant in tail, post prolem suscitatam, might forfeit his Lands, but now the Statute hath so incorporated the Estate tail to the Tenant in tail, that it cannot be devested, even a Fine levied by him ipso jure nullus, although as to the possession it be a Discontinuance; and that is the reason wherefore Tenant in tail shall not be seised to another's use. See Stamford 190. The Husband seised in the right of his Wife is attainted of Felony, the King shall have the profits of the Lands of the Wife during the life of the Husband, &c. So if Tenant in tail be attainted of Felony, and that is but a Chattel in the Lands of the Wife, and also in the Lands of the Tenant in tail: and if the possessions of a Bishop be seised into the Queen's hands for a Contempt, in such case the Queen hath the possession, and not the pro­fits onely: the same Law of the Lands of Tenant in tail, or for life, being attainted of Felony: so of seisure for Alienation without license, or of the possessions of Priors, Aliens. See Brook Reseiser 10. So where the Seisure is for Ideocy. And he said, That in the principal Case nothing is in the King until Office: and as to the Case of 13 H. 4. 6. he confessed the same; for at that time many, and amongst them Lawyers and Iustices, were attainted by Parliament, and so was Sir John Salisbury, whose Case it was; and their Lands by Act of Parlia­ment given expresly to the King: and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony, his Lands remain in him during his life until the Entry of the Lord, and where the King is Lord untill Office be found: but in the Case of a common person, after the death of the person attainted, they are in the Lord before Entry, and in the Case of the King before Office, for the mischief of abeyances. And see the Lord Lovel's Case, 17 and 18 Eliz. 485, 486. Plow. where it is hol­den, That upon Attainder of Treason by Act of Parliament, the Lands were not in the King without Office in the life of the party attainted, upon the words of the Act, shall forfeit. See Stamford Prerogat. 54, 55. acc. He said, That this interest which came unto the King by this Attainder, is but a Chattel, and then it is remitted by the Par­don; and so he conceived, if it be a Freehold: For the words of the [Page 127] general Pardon are large and liberal, [Pardon and release all manner of Treasons, &c. and all other things, Causes, &c.] and here Forfeitures are pardoned; and this word [things] is a transcendent, &c. and al­though it be a general word, yet by the direction of the Act of general Pardon it ought to be beneficially expounded and extended, as if all things had been specially set down: Also the words are, [Pardon them and their Heirs,] therefore the Pardon extends to Inheritance, for o­therwise there is no use of that: And he conceived, That by the first branch of this Act, that the same extends to Inheritances, and to ac­quit the Lands of all incumbrances, for every Offence not excepted, for there is the word [Heirs,] and the third branch concerns onely Chattels, and that is by the word [Grant,] where the first is by words of acquittal: See 33 H. 8. br. Charter of Pardon 71. Tenant of the King dieth seised, the Heir intrudes, Office is found; by Pardon of Parlia­ment all Intrusions are pardoned; in that case the Offence is pardoned, but not the issues and profits of the Lands; but by a Pardon before all is pardoned. But here in our case the Office is not void; for the Statute makes all Precepts, Commissions, &c. void, being awarded upon such forfeiture. See also in the second branch, Vexed or inquieted in Body, Goods, or Lands: and see also among the Exceptions, That per­sons standing indicted of wilfull Murther, and Forfeiture of Goods, Lands, Tenements, grown by any offence by such person: By which he said, that if such Exception had not been, the Land of such person, if he had been attainted upon such Indictment, should be forfeited: as to the Traverse, he said, That because the Office is true, our Plea is in the nature of Monstrans de Droit, although it concludes with a Traverse: We vary from the Office in number of the persons, and in the day of Feoffment, and every circumstance in case of the King is to be tra­versed, and our Plea in substance confesseth and avoideth the Offence. Although that here the King be intituled by double matter of Record, (scil.) the Attainder and the Office: yet one of the said Records, (scil.) the Attainder, is discharged by another Record, (scil.) the Pardon, and then but one Record remains, (scil.) the Office, and therefore our Tra­verse well lieth. And he said, that by the common Law there was a Traverse; as where it was found by Office, that the Lessee of the King had committed Waste, or had cessed for two years; and that in such case the Lessee and Tenant, in an Action brought against them, may traverse the Offence; therefore there was a Traverse at the common Law, where the King was entitled by single matter of Record: So upon Office finding Alienation without Licence, there was a Tra­verse by the common Law: See Traverse in such case in the Case of William de Herlington, 43 Ass. 28. See Br. Traverse of Office 54. Petition is by the common Law, and Traverse by the Statute: Frowick in his Reading. See Stamf. Prerogat. 60. That Traverse in case of Goods was at the common Law, but for Lands by Office, by 34 E. 3. 14. for before the remedy was by Petition. See Co. 4. part. the Sadler's Case 55, 56. Traverse was at the common Law concerning Freehold and Inheri­tance, but that was in special Cases, (scil.) when by the Office the Land is not in the King's hands, nor the King by that is in possession, but onely by the Office is entitled to an Action, and cannot make a Seisure without Suit, for there in a Scire facias brought by the King in the nature of such Action to which he is entitled, the party may appear to the Scire facias, and traverse the Office by the common Law. It was adjourned.

CLXX. Scott and Scott's Case. Mich. 29 Eliz. In the King's Bench.

1 Cro. 73. 3 Len. 225. 4 Len. 70.IN a Replevin, betwixt Scott and Scott, the Case was, George Scott, 2 H. 8. being Tenant in tail of certain lands, suffered a common Recovery to the use of his last Will; and 15 H. 8. made his Will, by which he did declare, That the Recoverors should make a good and fa­vourable Lease to Hugh Scott his younger brother: and 25 H. 8. they make a Lease of the same land to the said Hugh for 199 years according to the Will of the said George Scott, rendring Rent, 11 l. 6 s. 8 d. pay­able at the Feast of the Annunciation and S. Michael, by equall portions, and that to the Recoverors, their Heirs and Assigns; and there was a Covenant, that after the death of the Recoverors, the said Rent should be paid to Cestuy que use, his Heirs and Assigns, any thing in the said Indenture notwithstanding. Proviso, That if the Lesse make his Heir male his Assignee of that term, that then he shall pay the said Rent to the Recoverors, their Heirs and Assigns, and the Lessee shall not pay the Rent to the Heirs of Cestuy que use, upon which a Distress is taken, and thereupon a Replevin brought. Drew argued for the Plaintiff: When a Condition is created, the Law saith, That it shall be taken and construed favourably in the behalf of him who is to perform it: As if one be bounden to appropriate such a Church to such a house before such a day at his own costs, and the Obligor grants a Pension out of the said Parsonage, and afterwards appropriates the said Church, it was holden that the Condition was well performed, 3 H. 7. 4. A Lease for years upon condition, to scowre the Ditches, if the Lessee scowreth them once, it is well enough: And as to this word Proviso, It is to see, If here it be a word conditional: In some Cases, this word Pro, makes a Condition, as 45 E. 3. 8. Grant of a Ward, pro bono servitio, if the Grantee departeth out of his service, the Grant is void: So if an Annuity be granted unto a Physician pro consilio impendendo, the same is a Condition, 41 E. 3. 6. For the Grantor hath not means to compell the Grantee to give his Council; but in some Cases, this word Pro, doth not make a Condition: As if before the Statute of West. 3. Land was given pro homagio suo, there, if the Homage be not done, the Feoffor could not re-enter, but he ought to distrain. And I conceive, that in our Case, Proviso doth not make a Condition. 7 H. 6. 44. A Feoffment in Fee with Warranty, Proviso, that the Feoffee shall not vouch: So a Grant of a Rent-charge, Pro­viso, that the Grant shall not extend ad onerand. personam of the Gran­tor; for here the Proviso is rather an Exception than a Condition: A Lease for years without impeachment of Wast, Proviso, that he shall not do voluntary Wast, the same is a Qualification of the liberty for doing Wast. Grant of a Manor, Proviso, that it shall not extend to wood growing upon the Manor, the same is an Exception, not a Condition. See the Bishop of York's Case, 5 Eliz. Dyer 222. The said Bishop made a Lease for certain years of certain Lands, Proviso, quod tempore vaca­tionis, the Rent shall be paid to the Chapter, It was holden that the Pro­viso was not a Condition. And here in this Case, the Will of George Scott was, That the Recoverors should make to the said Hugh, a favou­rable Lease, which cannot be, if it be a conditional Lease: Another point was; because the Rent is not well demanded; for he hath demanded the whole Rent of the year, whereas but half a years Rent was onely due. Coke, contrary: where the Proviso is parcel of one sentence which con­tains a Covenant, or abridgeth the Covenant, there it shall not amount to a Condition, but to an Exception, as a Grant of a Rent-charge, [Page 129] Proviso, that he shall not charge the person, abridgeth the force of the Grant: so a Lease without impeachment of Wast, Proviso, that the Feoffee shall not do voluntary Wast, the same abridgeth the liberty; But in our Case, this Proviso makes a Condition, and not a Quali­fication of the sentence, or of any Covenant contained in the sentence, nor doth it participate altogether with the sentence, but stands sub­stantively, for it was a full sentence before: A Feoffment in Fee with Warranty, Proviso, that when he is impleaded, he shall not vouch J. S. the same is a good Condition, for J. S. is a stranger: contrary, that he shall not vouch the Feoffor: And a Proviso never makes a Covenant, and therefore it shall be either a Condition, or void. And he said, That by the devise, Hugh Scott had a Lease without any Lease to be made by the Recoverors. As unto the demand of the whole Rent, where but half a years Rent was due, the same is good enough. And so was it adjudged in a Case betwixt Andrew's and the Lord Cromwell; for he is at his peril to pay the one moyety, and in as much as he de­nieth the whole, he denieth every part. It was adjorned.

CLXXI. Hawkins's Case. Mich. 29 Eliz. In the King's-Bench.

ONE Hawkins was seised of three Messuages in Bury in his Demesit as of Fee, and had issue, Robert, Christian, and Joan; Postea 193. 1 Cro. 53. 3 Len. 180. and de­vised all his said Messuages to his wife for life, the remainder of one of the said Messuages to his son Robert and his heirs; the remainder of another of his said Messuages to his daughter Christian and to her heirs, and the remainder of the third Messuage, to Joan and her heirs. And farther, by his Will devised, That if any of his said issues die without issue of his body, that then the other surviving shall have totam illam partem, &c. between them equally to be divided. The Devisor dieth, the wife of the Devisor dieth, Joan dieth, having issue, Robert dieth without issue, Christian entreth into all the house of Robert, and dieth, and her husband holds in as Tenant by the Curtesie. Coke, The surviving child shall have the whole, and the issue of Joan shall have nothing; and he said, That by this Devise, they have an Estate in tail, for the Fee doth not vest in any of them; for it is written, Who shall survive: But when one overlives, he shall have in Fee, for these words, totam illam partem, go to the whole Estate, as well as to the whole Land. I devise my Land wholy to one, he hath Fee thereby: And he said that the three Devisees have Fee-tail, and Fee expectant each se­verally as to the Messuage to him limited. Golding, contrary; Each hath an Estate tail in the house devised to him, and but an Estate for life, expectant upon the death of the other without issue, for there are no words by which it may appear what Estate he shall have by the sur­vivorship. I grant the Case which Perkins denies, but Littleton affirms (scil.) A Devise to one of lands in perpetuum; for there the intent ap­peareth; But where there are not words of Inheritance, nor words amounting to so much, then it shall be but an Estate for life: And as to the words, totam partem illam, the same is all one as if he had said, partem illam without the word totam. And also he said, That where one onely survives, no farther the Estate vests; for there ought to be two to take by the survivor; for the words are, Equally to be divided betwixt them, And then if it cannot accrue by survivor, then it shall descend; and if it had accrued to two by the survivor, they shall be thereof Tenants in common, not Ioynt-tenants by reason of these words, Equally to be divided. Clench, Iustice, The words, Totam illam partem, go to the house, and not to the Estate in it: Shute, Iustice, accordingly: and he [Page 130] said, If both daughters had survived, they should have Fee in the house of Robert, but not by the Will, but by descent in coparcenary: Also when two are dead, the son and one daughter, then it cannot be divided, therefore the Will as to that is void, and then the common Law shall take place, and put the house to the issue of one daughter, and of the other daughter surviving. Gawdy, Iustice, Here is but an Estate for life in the survivor; It hath been objected, That then having but an Estate for life, the same Estate is drowned by the descent of the Fee-simple, so as now the Estate limited by the Will, is void; To which it may be answered, That although now, upon the matter it be void, yet, Ab initio, it was not so; for it became void by matter of later time, (scil.) by the descent of the Fee-simple; for if one of the daughters had died without issue before the death of Robert, so as the house of such daughter should have come to the said Robert and the other sister, there is no coparcenary, for the son hath all the Fee, and the moyety of the same is executed, and the other moyety expectant, and the sister hath a moyety for life, and then the Devise not void: Also here are not two survivors, so nothing is to be divided, and therefore the Law shall say, that the house of Robert is descended, (scil.) the Fee of it to the daugh­ter of Christian and Joan, and so Iudgment was given against the hus­band, who claims to be Tenant by the Curtesie of the whole Messuage.

CLXXII. Wye and Throgmorton's Case. Pasc. 27 Eliz. In the Common Pleas.

IN Debt upon a Bond by Wye, against Throgmorton, The Condi­tion of the Obligation, was to perform Covenants in a pair of In­dentures; And the Covenant wherein the breach was assigned was, That if R. W. Brother of the Plaintiff, should say, Make assurance of such a Manor to the Defendant, as the Council learned of the said Defendant should advise, Then if the Defendant pays unto the Plain­tiff 50 l. the Obligation to be void; The Defendant by advice of Council, demanded a Release with Warranty, &c. And by Periam and Windham, The same is not any Assurance, but a means to reco­ver in value. Anderson, contrary: That it was a Collateral War­ranty, &c.

CLXXIII. Cropp and Hambleden's Case. Hill. 28 Eliz. In the King's Bench.

1 Cro. 48.IN Trespass by Cropp against Erasmus Hambleden, upon the special Verdict, the Case was; That one Martin Hastings was seised of the lands, where, &c. in the right of his wife, for the life of the wife; and that they both did Lease unto the Defendant for years, rendring Rent, payable at the Feast of S. Michael, and the Feast of the Annunciati­on, &c. with clause of re-entry, if the Rent be behind, by a Month after any of the said Feasts, and after the feast of S. Michael, 26 Eliz. and before the Month expired, the Lessee, the now Defendant, sent his servant unto the house of the Lessor, for to pay to him the Rent then due; the servant went unto the house of the Lessor, and there asked for him, to whom it was answered by one Mary Briggs, daughter of the wife of the Lessor, who there dwelt in the said house with her mother, that the Lessor was not at home, for which the said servant delivered the said Rent to the said Mary, requiring her to deliver the same over to the Lessor, upon his retorn to the house, in the name of his servant; [Page 131] Mary reserved the said Rent, and upon the retorn of the Lessor, at his house, told him all the matter aforesaid, and that the servant of the Lessor, the Defendant, had required her to tender the said Rent to the Lessor, in the name of the Defendant, and thereupon offered and tendered to him the said Rent, and the Lessor refused it. And the Iu­ry found, That the third half year before the tender mentioned before, the Lessor commanded the said Mary to receive the Rent then due, who did accordingly, and that the next half year then following, the said Mary did receive the said Rent, without commandment of the Lessor, but after the Lessor agreed unto it, and that the immediate half year before this tender in question, the Defendant paid the Rent then due, to the Lessor himself, who received it, And it was the opinion of Wray, chief Iustice, that this tender was good, and it is not like unto the case of an Obligation; for there the Obligee cannot have an Action of Debt before the last day: but here the Lessor might have distrained, or have had an Action of Debt before the Month expired, and so the Lessor is bound by this tender; and by Gawdy, Iustice, This tender cannot be said a tender by a stranger, for here Mary came in privity of the servant of the Lessee, and as it is found by Verdict, Mary tendered it to the Lessor, as being requested by the servant of the Lessee: And after­wards, upon consideration had betwixt the Iustices themselves; the Iustices, viz. Clench, Gawdy and Wray, (for Shute was then sick) it was clearly resolved against the Plaintiff, and that the said tender, as it is found in the Verdict, is a good and sufficient tender; and the Lord Wray delivered the reason, as before, and farther said, That if the said Rent had been reserved payable at the feasts aforesaid, or within a Month after each of them, there the tender as above, had not been good, nor should bind the Lessor; for in such case the Lessor could not distrain, or have an Action of Debt for the said Rent before the Month expired. And this is a case of extremity, and deserves no favour; and here is no mischief to the Lessor, for he might have had his Rent in due time if he would, and his captious refusal shall not avail him; And Iudgment was given accordingly.

CLXXIV. Bostock and Covert's Case. Trin. 33 Eliz. In the Common-Pleas.

BOstock and his Wife brought a Writ of Dower against Covert, son and heir of her former Husband, who pleaded, That the Hus­band of the Demandant was seised of Lands, amounting to the num­ber of 300 Acres; and held the same by Knights-service, and died sei­sed, after whose death, by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands, as the third part of the said Lands descended, and held the same in severalty, being the third part of the clear yearly value of the whole discharged of a Dower; and that the Wife ought to have all her Dower out of the two parts devised. And Anderson said, That the Plea was not good; for the heir who will take advantage of the Statute in that point, ought to enter general­ly as Tenant in common with the Devisee, and then in a Writ of Dower it is a good Plea: so if after his entry as Tenant in common Partition be made betwixt him and the Devisee, such a Plea is good; but here he hath entred severally into a third part, distinct from the re­sidue, and so hath ousted the Devisee of a third part severally; for which cause he cannot have advantage of this Plea: To which the rest of the Iustices, Non contradixerunt.

CLXXV. Sir John Southwel's Case. Pasch. 37 Eliz. In the Exchequer.

3 Len. 147.SIR John Southwel of the County of Lancaster, 7 Julii, 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs, up­on condition, that they should find him and his Wife, and so many persons in his house, &c. prefer his Daughters in marriage, pay his debts, &c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage, that then at the end of every such year, they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands; with clause of revocation, &c. Afterwards, the said Conveyance being in force, came the Statute of 23 Eliz. concerning Recusants; upon which Statute, the said Southwel is now endicted; and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster, to enquire of the Lands of the said Southwel, although against the said Conveyance it was given in Evidence, That after the said Convey­ance, the said Sir John Southwel had granted Trees from off the said Lands, and had received Fines and Incomes for Leases, &c. yet the Iurors charged to enquire, would not find that the said Sir John South­wel had any Lands, &c. And by special command from the Queen, it was referred out of the Exchequer, to all the Iudges of England, If the Lands of the said Sir John Southwel conveyed as aforesaid, were subject to the said Statute, and the penalties thereof. And upon a great deli­beration, it was by them all resolved and agreed, That notwithstanding the said Conveyance, the said Lands were liable to the said Statute. And as to the Iurors, who against the Evidence given to them for the Queen, gave their Verdict (ut supra) Process was awarded against them out of the Court of Exchequer, for to appear before the Lord Trea­surer and the Barons. And for their said contempt, they were commit­ted to the Fleet, and each of them fined 50l.

CLXXVI. Moore and Savil's Case. Trin. 27 Eliz. In the Exchequer.

IN an Ejectione firmae, by Moore against Savil, the Case was, That Tenant in tail leased the Land to the father, mother and son for their lives, by Indenture, in which it was comprehended, That foras­much as the Lessor is but Tenant in tail, and so cannot by Law limit these Estates by way of Remainder, but jointly in possession; and his intent was, That because this Lease was procured and obtained at the special suit, and costs and charges of the father, That the said son should suffer his father, and after him his mother, to take the profits of the said Lands demised, and to occupy and hold the said Lands to their onely profit without interruption of the said son, notwithstanding his joint Estate in possession with them, Provisum igitur est, That if the said son shall challenge, claim, demand or take any profits of the Lands so demised, or enter into the same, during the life of his said father or mo­ther, That then the Estate to him limited by the said Indenture should cease, and be utterly void. And it was the clear opinion of the whole Court, That this Condition and Proviso was utterly void, for it is con­trary to the Estate limited before; as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years, Proviso, that you shall not occupy the same the two first years, the same Proviso is void and contrary, and repugnant to the Estate.

CLXXVII. Lord Cromwel and Townsend's Case. Mich. 28 Eliz. In the Star-Chamber.

HEnry Lord Cromwel, exhibited a Bill in the Star-Chamber, against Roger Townsend, Esquire, for that the said Roger Townsend, in an Action betwixt James Taverner Plaintiff, and James Cromwel Far­mor, of the said Lord Cromwel Defendant, in Trespass, in the favour and unlawfull maintenance of the said Taverner, did procure a partial Iury to be retorned. And upon the hearing of the Cause, the matter given in Evidence was, That the said Taverner was a Copiholder of the said Lord Cromwel, and that the said Lord Cromwel, pretending that the said Taverner had forfeited his Copihold, caused the said James Cromwel to make an Entry, in the right of the said Lord, upon the said Taverner; upon which Entry, Taverner brought an Action of Tres­pass against the said James Cromwel, in which Action the parties were at Issue upon the forfeiture. And before any Venire facias issued forth, Taverner hearing that one Steward, who was Bailiff of the Franchize, under the Earl of Arundel, and who ought to make the Pannel, &c. was purposed to have made the said Pannel not duly; viz. to retorn therein, great Gentlemen of the County, who were Lords of Ma­nors, in favour of the said Lord Cromwel, went unto the said Roger Townsend, who was then one of the principal servants and agents of the said Earl, and shewed to him, that if those great persons and Lords of Manors be retorned for the trial of that Issue, peradven­ture they would not so easily appear for the expedition of the parties, as people of lesser condition; and also many of them being Lords of Manors, and having customary Tenants, and therefore not indiffe­rent to try that Issue, and prayed his Order to the said Steward, for the making of an indifferent Pannel; where, upon a conference with the said Steward for the making of an indifferent Pannel, and shewing to him, the making of the said Pannel was not convenient, or any equal course to retorn Knights, Esquires or Lords of Manors, but rather such sufficient persons, for the greater expedition of Iustice, and indifferency of the trial; And afterwards the said Taverner exhi­bited a Petition, shewing all the special matter, and praying him to give Order for the making of an indifferent Pannel for the trial of that Cause, which Petition was delivered to the said Earl by the said Townsend, in the name of the said Taverner. Vpon which the Earl did refer the said matter to three of his chiefest agents and Counsel­lours, i. Dicksey, Townsend and Carrel, and delivered to them the Book of Freeholders within the said Franchise, who, according to their Commission made a Pannel, which was retorned; and the Iury passed with the said James Cromwel in the right of the said Lord: And if this intermedling of Townsend with this matter, as abovesaid, &c. especially his conference with the Bailiff, be maintenance or not, was the Question. And by the Lord Anderson and the Lord Wray, chief Iustices, It was delivered for Law, That because the said Townsend was in manner a servant of the said Earl, who had retorn of Writs, and one of his principal Counsellours and agents, and hearing, Ex in­sinuatione, of the said Taverner, the misdemeanour of the Bailiff of his Lord could not do better, than to shew to the Bailiff his duty, for it concerned the honour of his Lord, and also his Inheritance in the Franchise; But if the said Townsend had been a mere stranger to the said Earl, so as no such privity had been betwixt them, it had been clearly maintenance in Townsend; as it was lately adjudged in this Court, in the Case of one Gifford; Gifford's Case. where the parties being at Issue, and a Venire facias was to the Sheriff to retorn a Iury, a stran­ger [Page 134] wrote to one of the Iurors who was retorned in the Pannel, pray­ing him to appear at the day, and to doe in the Cause according to his Conscience; and that was adjudged Maintenance. And afterwards, upon the full hearing of the cause, the said Townsend, by the sentence of the said Court, was acquitted of every Maintenance, with great al­lowance and approbation of many Lords of the Council there present: Bromley Cancellario tantum exclamante.

CLXXVIII. Sir Moil Finch's Case. 33 Eliz. In the Exchequer.

2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215.THE Case was this; The King and Queen, Philip and Mary, leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation; Proviso, that if the Rent be behind, and not paid by the space of forty days after any of the Feasts aforesaid, that the Lease shall cease and be void. At Mich. 9 Eliz. the Rent was not paid according to the Proviso, but a Month after the said forty days it was paid, and Acquittance given for it; and so the Rents due after unto 30 Eliz. were duly paid, and Acquittances given for the same. The Queen gave and granted the Reversion in Fee to Sir Thomas Henage, &c. and after it was found by Office that the Rent was arrear, ut supra: Sir Thomas Henage entred, and leased for years to Sir Moil Finch, who being ejected, brought a Quo minus in the na­ture of an Ejectione Firmae, &c. It was argued by Coke, That this Lease upon the matter aforesaid is avoidable by the Patentee, and that without Office; for the conclusion of the Proviso is not, that the Queen shall re-enter, but that the Lease shall cease and be void: and the Queen is not driven to demand her Rent, as in such case a Sub­ject is tied. And he compared it to the Case of a common person; If a common person leaseth for years, upon condition, that if the Lessee doth not build upon the Land demised a House within a year after, that the Lease shall be void, and afterwards grants the Re­version to a stranger: the Grantee shall have advantage of this Con­dition, be it broken before or after the Grant; for the Lease in such case is void, not onely voidable; and the reason is, because the Con­dition is collateral: which see 11 H. 7. 17. A Lease for years is made upon Condition, that if the Lessee doth not go to Rome before such a day, that the Lease shall be void; the Lessor grants the Reversion o­ver, the Lessee attorns, and doth not go to Rome within the time ap­pointed, the Grantee may re-enter; contrary, if the conclusion of the Condition had been by way of re-entry, for then it should run in privity by the Common Law: But where a Lease with such Condition was made for life, with this conclusion of the Condition, that the Lease shall be void, the Grantee shall not take advantage of that by the Com­mon Law, for there the Estate is not void untill re-entry, for there is a Freehold which ought to be avoided by Entry: But in our Case the Condition is upon the matter collateral, for no demand is requisite to take advantage of the Condition. And he said it is a general Rule, where in the Case of a common person an Estate may be devested with­out Entry, there in the Case of the Queen there needs not any Office; but here in our Case, if it had been a Case of a common person, the Estate should be devested without Entry, therefore in the Case of the Queen without Office: See Stamford for the Major Proposition 55. but it doth not vest to have Trespass before Entry: and he vouched the Case of Browning and Beston, Plow. 136. where such Lease after such Condition broken, is merely void and dissolved. And he said, That it was the Opinion of the Iustices of the Common Pleas, now late, [Page 135] That by a Release to such Lessee, after the condition broken, nihil ope­ratur; for after the Condition broken he is but Tenant at sufferance; and a Lease for years, being but a Cattel, may begin without cere­mony, and end without ceremony: 2 H. 7. 8. If the King make a Lease for years, with clause of Re-entry for not payment of the Rent, al­though the Rent be behind, yet the King shall not re-enter before Office found; and there ought to be a Seisure, for the Lease is not void by the non-payment of the Rent, but onely voidable: but if the Lease be void for not payment, as in our case it is, to what purpose shall an Of­fice be? for by the mere contract the Lease ceaseth, without re-entry, or without Office: But admit that the Lease shall not cease without Office, and before Office the Queen grants the Reversion over, yet an Office found after the Grant shall avoid the Lease as well as if it had been found before the Grant. A Lease is made upon condition, that if the Lessor build a House upon the Land leased, and pay to the Lessee 20l. that then the Lease shall be void; the Lessor builds the House, and af­terwards grants the Reversion, the Grantee pays the 20 l. now the Lease is void, although the Condition be partly performed in the time of the Lessor, and partly in the time of the Grantee. So here, although the Grant of the Queen be Mesn between the non-payment of the Rent, and the Office; for the Queen is not entitled by the Office to the Land, but by the Condition broken, and the Office is onely to inform the Queen of her Title; and when the Office is once found, it shall relate unto the time of the Condition broken, and shall be of such force as if then it had been found:H. 3. H. 7. f. 3. Cro. 221. and here in our case an Office was necessary for to entitle the Queen to the mean profits due betwixt the Rent ar­rear, and the Grant of the Queen, with which the Queen by her Grant hath not dispensed; and without Office he could not have them; for the arrearages of the Rent do not pass to the Patentee, no more than if the Queen be seised of an Advowson, and the Church become void, if the Queen Grant the Advowson unto another, the avoidance shall not pass. The King seised of a Rent which is arrear, grants the said Rent, the arrearages shall not pass: So here of the mean pro­fits, for they are flowers faln from the stalk, &c.

Godfrey contrary; and he said, That the Lease is in being not im­peached by the Condition, or the Office: and he said, That notwith­standing that the words of the Lease are, That the Lease shall be void, yet before that an Office be found, the Lease shall not be avoided: In all cases where the Queen is entitled to any thing, or to defeat the Estate of another, an Office is necessary; and that ground is taken in the case of the Lord Berkley, Plow. Com. 229. by Brown, therefore here, it ought to be found by Office: See also the case of the Bishop of Chiche­ster, Fitz. Abridg. Forfeiture 18. 46 E. 3. The Bishop leased for life certain Lands given by the Progenitors of the King, as parcel of the Barony of the Bishoprick, rendring 30l Rent; and afterwards, by assent of the Dean and Chapter, released a great part of the said Rent; the Lease and the Rent ought to be found by Office. So an Alienation in Mort­main ought to be found by Office, because the interest of another is to be defeated: So where the King's Tenant ceaseth, &c. the Villein of the King purchaseth Lands, or but a Lease for years: So where the King is but to have annum, diem & vastum, Waste committed by the Commit­tee of the King: Lessee of the King for years makes a Feoffment in Fee; in all these cases the King, without Office, shall not be entitled. The same Law is in case of a Condition broken; which see 2 H. 7. 8. Plow. 213. Frowick in his Reading puts this case: A Subject leaseth for years up­on condition, which is afterwards broken, and afterwards the Lessor becomes King, here needs no Office, for at the time of the breach of the Condition the Lessor was not King.Forbisher and Bunny's Case. The Case betwixt Sir Martin Forbisher and one Bunny was, that the Queen made a Lease [Page 136] of Dutchy Land upon Condition, which was broken: It was holden, that here there needs not any Office, for the Queen had those Lands severed from the Crown by Parliament, and they passed by the Dutchy Seal by Livery, and attornment of the Tenants: The Queen leaseth for years, Proviso, that the Lessee shall not alien; such alienation against such a Condition ought to be found by Office: and therefore at this day, where a Forfeiture is given to the King, &c. by Statute, the words are, That the King shall be seised without Office: And as to the Relation of an Office, he said, That an Office may have a Relation as to mean profits, but not as to vest the interest from the time of the Title accrued. And although that in the Grant of the Queen to Sir Thomas Henage there be these words, Non obstante, the not finding any Office, yet in this case an Office is necessary, for the Queen cannot dis­pense with the Law, so to alter or change the Law, as to make Lands in Borough-English descendable at the common Law: So if the King make a Lease for years, with clause of re-entry, and afterwards grants the Reversion over to a Subject; and farther grants, that if the Rent be behind, that the Lessor may re-enter without demand; yet the Grantee ought to demand the Rent. And, as our case is here, there needs not any Office to entitle the Queen to the Mean profits; for although that the Rent was not paid at the day, yet it was paid after, and all Rent due afterwards, and Acquittances given for the same; which matter we have specially pleaded to the intent aforesaid, upon which the other side have demurred, and thereby have confessed it, &c. But this Office doth not give any interest to the Queen in the thing leased, for she hath granted them over before, by which she hath dis­abled her self to take advantage of the Condition aforesaid, for she hath surceased her time: 8 H. 5. Traverse 47. Tenant for life forfeits his Estate, and before the King seiseth, The Tenant for life dieth, he in the Reversion may enter, and the King shall not seise, for the King hath surceased his time. And if the Queen should have advantage of this Condition, she should avoid her own Grant, which should be a great inconvenience; The Queen leaseth for years, Proviso, that the Lessee shall not do Waste; the Queen grants over the Reversion after Waste done, Office is found, the Queen gains nothing by it. It was agreed in the Case betwixt Knight and Beech, 28 Eliz. That the Grant of the Queen Mesn between the award of the Commission, and the Retorn of it was good; for the Title of the Queen appeareth of Re­cord, although that the Commission was not retorned before the Grant made: And if an Office should relate unto the time of the Condition broken, it should be in vain to argue that point: for in the said case it was holden a Record, when the Iurors had put their Seals to it, before that it be enrolled: The acceptance of the Rent, and the Ac­quittances thereof are pleaded, 1. To prove, that there is no cause to find an Office in this case, for the Queen is answered the Mean profits: 2. To prove, that the Queen hath waved and refused to take the benefit of the Condition, but not to conclude the Queen, and then you cannot force her to take the benefit of the Condition: As the King, Lord, and Tenant, the Tenant dieth, his Heir within age, the King accepteth of the Services of the Heir, and afterwards grants over the Seignory, after Office is found, the King shall not have the Wardship, &c.

At another day it was argued by Popham, Attorny General, for the Plaintiff; and he said, That upon not payment of the Rent, the Lease is ipso facto void, without any Office found thereof, and that by reason of these words, [shall not be void;] for he said, it is not a Condition, but rather a limitation: As if the King make a Lease to three for eighty years, si tam diu vixerint, one of them dieth, the Lease is determined without Office: So a Lease made vy the [Page 137] Queen for years, so long as the Lessee shall pay the Rent reserved, or so long as the Lessee shall there inhabit: In these cases, upon a Lease made by a common person, the Lessor before Entry might grant over, and the Grantee shall have advantage of it, for it is a limitation, and by the limitation the Lease is determined before the Grant; contrary, if it had been by words of re-entry. A Lease for sixty years, Proviso, that if the Lessee shall die within the term, that the Lease shall cease; the Lessor grants the Reversion over, the Grantee shall take advan­tage thereof by the common Law: See the Case 11 H. 7. 17. it is a limitation, and not a Condition. And he said, in this case an Office is necessary, not to avoid the Lease, for that was void before; nor to punish the Lessee as a Trespassor, or to fine him for the continuance of his wrongfull possession; but to make him responsable as an Accoun­tant. In the Lease of a common person, where the clause is, That the Lease shall cease; If after the Rent behind, the Lessee continu­eth his possession, yet the Lessor shall not punish the Lessee as a Tres­passor before his Entry, for the Lessee by his continuance is but Te­nant at sufferance, for his first Entry was lawfull; And he agreed the Books, 14 H. 8. and 2 H. 7. That such advantages that a common person cannot have without Entry, the Queen cannot have without Office: But a common person before Entry cannot punish another by way of Trespass, therefore neither the Queen, without Office, shall punish one as an Intruder: And as to the Case, now lately adjudged betwixt Knight and Beech, the same doth not extend to our Case;Knight and Beech's case. for there an Office was requisite before the Grant of the Queen, because the per-close of the Condition was, That the Prior should re-enter: and it is very clear, That Chattels vest in the Queen without Office. And in this Case an Office is necessary for two purposes: 1. To make the Grant good: 2. To make the Occupier accountable for the Mean profits, and to give recompence, which the Queen is not enabled unto without Office. And here the Patentee shall have advantage of the cesser of this Lease: For, 1. He hath the Inheritance lawfully: and 2. The Lease is determined. If there were no Non obstante in the Letters Patents, the said Lease ought to have been recited, if it had not been determined; and if it be determined (as this case is) it ought to be recited, if there were not a Non obstante; for non constat to the Queen, if it be determined or not: And he said, That Leases which are of Record, are to be recited in Patents of the King, but not those which are not of Record, for Leases on Record may be easily found, but contrary of Leases in Fait: but in our case all is helped by the Non obstante; for the words of the Letters Patents are, Non obstante, That no office be thereof found, misrecital or non-recital of the for­mer Leases, &c. It hath been objected, That because that the Law of the Land is, That in Grants of the King, all former Estates ought to be recited, the Non obstante of the Queen shall not help it: To that he said, That where the Law makes for the Queen, there the Queen for a particular respect may dispense with the Law. If the Queen be deceived by the not recital, that makes the Letters Patents naught; but if the Queen be not deceived by the not recital, the same shall not hurt. And it is clear, That the Queen may dispense with a Statute Law, although perhaps not with the common Law; The Queen grants upon suggestion, if the suggestion be false, the Patent is void, be­cause the Queen is deceived in her Grant: and if the suggestion rest in Articles, and some of the Articles be false, the Patent for that is void: but if in the Patent such clause be, That be the suggestion true or false, the Patent shall be good: If the King seised of a Manor, to which an Advowson is appendant, grant the Manor, cum pertinentii [...], the Advowson shall not pass: But if the Grant be in tam amplis modo & forma, &c. prout ipse Rex tenuit, the Advowson shall pass. And he [Page 138] said, That the Office here is not necessary to determine the Lease, but to enable the Queen to punish the Lessee for the continuance of his possession: And if the conclusion of the Condition had been by way of re-entry for non-payment of the Rent, and after the Rent is behind, and afterwards the Queen accepts the Rent due after, the Queen is not bounden by that, but upon an Office found she shall avoid the Lease.

Drew, Serjeant, contrary; and he said, That here is a condition, but not a limitation; for here is the natural word of a Condition, (scil.) Proviso. Some Cases put by Popham are Conditions, and not limi­tations: As a Lease for years, Proviso, that if the Lessee die within the term, that then the Lease shall be void, the same is a Condition: And in many Cases many words (less apt than these in our Case) shall make a Condition: As a Feoffment, dummodo solvat, &c. And he said, That without an Office the Lease is not void: See 35 H. 6. 57. The King giveth to Religious use certain Lands, ad effectum, to find a certain number of Monks, to hold in Frankalmoign: the King in that case cannot have Cessavit, for the Services are not certain; but if it be found by Office, that they have not their number, or do not make their Prayers, the King shall cease; by Br. Tit. Offic. 4. And he said, that this was often done in the time of Hing Henry the eighth; Lands given, Habend. pro erectione Collegii Cardinalis Eborum, &c. Where the King is to have Lands but as a pledge, as for an Alienation without licence, Office ought to be found of such Alienation: So of a Feoff­ment made to an Alien; otherwise it is in case of necessity, because the Freehold cannot be in abeyance: Tenant of the King is attainted of Treason before 33 H. 8. the King shall ha [...] [...]e Land in point of com­mon Escheat untill Office be found, and afterwards by force of the Attainder. So if the Tenant of a Subject be attainted of Treason be­fore Office found, the Land shall be in the Lord, but after Office it shall be in the King: 7 H. 4. If the King's Tenant dieth, his Heir within age, the King may seise the Body, and grant it over without Office, but not the Lands: See for the same 5 E. 6. Br. Office 55. in the Case of Charles Brandon, 35 E. 3. Villainage 22. The Villein of the King pur­chaseth Goods and Chattels, the property of them is in the King be­fore Office or seisure, but in the case of lands he ought to seise: If this had been the case of a common person, the Lease should not be avoided without demand, therefore neither in the Case of the King without Of­fice: For as the Lease it self was made by matter of Record, so it ought to be avoided by matter of Record, otherwise it shall not be taken void in Law, notwithstanding that the words are, That the lease shall be void. By the Statute of 11 H. 7. Alienations and Discon­tinuances by Women are made void, the same ought not to be holden altogether void as betwixt such Women and the Alienee, but onely betwixt the Woman and the Heir, the Statute of 1 Eliz. enacts, That all Leases made by a Bishop above the term of twenty one years, shall be void; the same shall not be construed to be void, but onely as to the Successor, for it shall bind the Lessor himself, as it was adjudged 5 Eliz. in the Case of the Bishop of Bath. As unto the Office here in our case, the same shall not enure to avoid the Lease, but onely to en­able the Queen to punish the party for the Mean profits after the break­ing of the Condition: But in our case, nothing is due to the Queen for the Mean profits, for we have shewed the payment of all the Rents, and the Arrearages thereof, after the breach of the Condition, and before the Grant of the King; and therefore this Office, being for no use, shall be void, unless it had been found, that the Land was of more yearly value than the Rent, &c. As in the case of com­mon experience of Chantries, the Lands shall not be intended to be of greater value than the Rent to be paid out of it, if not that it [Page 139] be found by Office: When the Queen hath after received the Rent, and granted over the Reversion, now the Forfeiture is purged, not by way of conclusion, but it amounts to as much as if the Queen had said, That she would not take benefit of it: 4 H. 6. Champernoun's Case: The King, by taking in Ward of the Heir of the Donee, hath waved the Heir of the Donor: See Plow. in the Lord Barkley's Case, 3 Eliz. 237. and F. N. B. 143. And here in our Case, when the Queen grants over the Reversion, here the whole use of an Office is gone; for no Office shall be found for the benefit of a Subject: and as to the Queen, no benefit shall accrue unto her by such Office, for if she by such Office shall be entituled to the possession, she should avoid her own Grant of the Reversion; for she ought to have as great an Estate by the breach of the Condition, as she had at the time of the Conditi­on: And in this Case the Office comes too late for the Queen, &c. as in the Lord Lovel's Case, Plow. 18 Eliz. 482. A Lease for years is made unto an Alien, upon condition, that if the Alien pay such a sum of Mo­ney to the Lessor at any time during the Lease, that he shall have Fee; the Alien is made a Denizen, the Money is paid, and all that is found by Office: The Queen shall not have the Fee, for at the time of the vesting of the Fee the Lesse was Denizen; and the Office shall not relate to the time when the Fee vests, and no farther, but to a­void incumbrances: and so in such Case the Office comes too late. And if the King's Villain purchaseth Lands, and the King make him free, and afterwards Office is found, the same shall not entitle the King, but the Villain manumitted shall hold the Land: So in our Case, the Queen after this Grant shall not take the benefit of this Of­fice, or breach of the Condition found by it.

And afterwards, Manwood, chief Baron, gave order, That those who do argue after, shall speak but to two points:

1. Where the Queen Leases for years, rendring Rent payable at the Receipt at West. in which Lease there is a Proviso, That if the Rent be behind, the Lease shall be void, If now the Rent not being paid, the Lease shall be void without any Office?

2. To what effect an Office now shall be, being found after the Queen hath granted the Inheritance over.

At another day, Owen, Serjeant, argued to the contrary; and he said, the Lease is void without any Office: for as a Lease for years may be made by contract, so it may be avoided by words of contract, otherwise it is of Freehold; So that a Lease shall be avoided with­out entry, 6 E. 6. 137, 138. Plow. Browning and Beston's Case; Offices are of two sorts: First, entituling the Queen, as purchase of an Ali­en, purchase of Villain, alienation in Mortmain; and Offices infor­ming the Queen, where she hath interest in the Land before, as in our Case here: Admit that the Office was necessary to find the breach of the Condition; the Patentee shall take the benefit of it: for being found by Office, that the Queen hath made such a Lease with conditi­on to be void for non-payment of Rent, and that at such a day the Rent was behind, now, being of Record, every Subject shall take advantage of it: As where a Husband makes a Feoffment in Fee upon condition, of the Land of his Wife, and dieth; If the Heir en­ter for the Condition broken, now may the Wife enter upon him; for now the discontinuance is avoided: See 11 H. 7. 17. Where the Grantee of the Reversion shall take advantage of a condition, ut su­pra, concluding, That the Lease shall be void: And see 136. Plowd. Browning and Beston's Case. And although after the default of pay­ment, the Rent due afterwards was accepted, yet that shall not con­clude the Queen; for this acceptance is not under the great Seal, but onely done by the Office: Also the Lease being void, for the non-pay­ment, cannot be made good by acceptance afterwards.

[Page 140] Atkinson, contrary, Although that the Lease be void, de facto, yet un­til it appeareth to the Court, the Court cannot say it is void, or not void: therefore Office is necessary to ascertain the Court: The Queen is a body Politick, and the chief body Politick above others, because she is the Maker, Authour and Creatour of all other Corporations; and that is the reason, that the King cannot speak without writing; and this is the most solemn writing: i. Writing of Record; So she cannot take but by Record: And in our Case, it doth not appear by any writing of Record, the Rent was behind; and it is agreeable to the Majesty of a King to do nothing without matter of Record; which see 4 Eliz. in the case of the Dutchy: And he said there is no difference betwixt the Case in 2 H. 7. and our Case: In each Case it is a Lease for years, Rent reserved, in this onely differing, that there is a clause of re-entry; and here the conclusion of the Condition is that the Lease shall be void; but in both Cases, none can say that the Rent is behind, untill it be found by Office, therefore none can say, that the Lease is void, untill Office found: See by Thorp, 35 E. 3. Chattels personals of the King's Villains, are in the King without office, for such things may be lost or worn, contrary of Chattels Reals, as a Lease for years; for Land can­not but continue: and such things which may be in the King without wri­ting, he may grant without writing, as a chain of Gold, or a Horse, Deodands, Felons goods, Wreck, &c. vest without Office, because Chattels personals: See 20 E. 4. 11. contrary, when they are Chattels reals, and permanent; for there an Office is necessary: In the Case of year, day and waste, an Office ought to be found, Ergo, à multo fortiori, in case of a Lease for years, which is a greater interest, &c. 49 E. 3. 11. There is a general Rule, Quo modo quodque ligatur, eo modo dissolvitur: That which passeth by Livery ought to be reduced by re-entry, that which begins by Record, ought to be determined by Record; and here in our Case, the Land cannot depart from the King without Record, therefore it shall not revert without Record; although that the breach of the con­dition be but matter of fact, yet the proof of that ought to be of Record: And here in our Case, is a condition, and not a limitation. And he said, that in the Case often cited before of 11 H. 7. 17. it is a limitation, and not a condition; For if it were a condition, the Grantee by the Law could not take advantage of it, because not privy: and he was clear of opinion, that where the words are, That the Lease shall cease, or shall be void; yet in such cases there ought to be an Office, for in Leases of the King there needs no re-entry, because the King (to speak properly) cannot re-enter. And the words, [That the Lease shall be void] do amount to words of re-entry, and he said, That in the Case of a common person upon such a condition broken, the Land shall not be in the Lessor, with­out re-entry, no more shall they be here in the Case of the Queen with­out an Office: Also the Rent reserved upon this Lease was behind, and the Lessee continuing the possession, the Queen by acceptance of the Rent, hath affirmed the party Tenant, and afterwards granted the Reversion over before any Office found of that matter; Now the Les­see is discharged, and shall never be impeached for the said Rent be­hind; and the Grant, Ex certa scientia, &c. after found, shall not defeat this Grant by any relation. And the Queen by her Grant hath included all the advantage which accrued unto her by the breach of the Conditi­on, and as to that which hath been objected, That in the Letters Patents there are these words, Notwithstanding the not finding of any Of­fice, &c. truly the same makes the matter more clear for us; for by these words, it is apparent, that the Queen would not have an Office found; & if so, then the Land passeth as in Reversion, and the Queen may dispense with a thing concerning her self: as of late it was adjudged in the Case of one Michel. The Queen makes a Lease for years, rendring Rent, Si petatur, It was holden in such case, that the Rent in such case, [Page 141] ought to be demanded by the Queen's Officer; and in such case the Queen may well enough dispense with her Prerogative; and here the Queen conceived, that she should not have an Office, nor have her Title found by it. Manwood, chief Baron, The Queen leaseth for years upon condition, That if the Lessee doth not marry within two years, that the Lease shall be void, whether here there ought to be an Office or not. Atkinson said, That here ought to be an Office.

At another day, It was argued again by Godfrey, This Lease is not void, Ipso facto, for the not payment of the Rent, which is but matter in fact: and as this Lease hath his beginning by matter of Record, so also his end shall be by matter of Record: In cases of a common person there ought to be a demand, therefore in case of the King an Office,Hob. 331. 3 Co. as in the Case of a common person demand ought to be as well where the Condition is by way of re-entry, as that the Lease shall be void; there­fore in both Cases, in the Case of the King there shall be an Office: and he said, That if the Lease and the Condition be in the Case of a com­mon person, that the Lease shall be void, without any demand of that Rent, then there needs no demand; for demand is a part of Contract: and here, before Office found, the Lease is not merely void, for a Re­lease unto the Lessee before Office, is good; and the Queen is not enti­tuled to the profits before office found; It was argued by Coke to the contrary, The Lease is void without any demand, without any Office, for it is parcel of the Contract to be so void, and he said, That this Lease before Office is void in interest and property, but not in possessi­on: Where a common person shall not have the Land without Action, the King shall not have it without Office, and Scire facias; as Cessavit, Wast. contra formam donationis, &c. and where a common person shall not have before Entry, the King shall not have before Office, for Of­fice is in the place of Entry, Wardship, Mortmain. It is clear, in the Case of a common person, That if the Condition be, that the Lease shall be void without any demand, that there demand is not requisite, therefore nor in the Case of the King: See Browning and Beston's Case,Plowd. Com. 136. That such a Lease with such a Condition, after the Rent behind, can­not be made good: And it is a general rule, That where the certain­ty of the term appears by Record, and the King is to have but a Chat­tel in it, there the King upon matter in fait shall have it without Office; as the Temporalties of the Bishop upon his death, which is matter in fait: See F. N. B. 174. The Widow of the King marries her self with­out licence of the King, the King shall seize the Lands, and that without Office, and there the marriage is matter in fait: The King leaseth for years upon condition, that if the Lessee marry, that then the Lease shall be void, If the Lessee marry her self, the Lease is void without any Of­fice; and if so, then every stranger in the world shall have advantage of it, as the Case is, 11 H. 7. as was the Case of Ralph Thomas; Ralph Tho­mas's Case. The Husband seised of Land in the right of his Wife, leaseth for years, and afterwards he and his Wife levied a Fine to a stranger, the Husband dieth, the Conusee shall avoid the Lease, because it was merely void by the death of the Husband: So of a Rent charge granted by the Hus­band, &c. But although this Lease be merely void, yet a Bill of In­trusion doth not lie against the Lessee before Office, for in such case, a common person shall not have Trespass before entry; but yet if the Lessee dieth after the Rent behind, ut supra, the Lease shall not be said Assets to the Executors, for the not payment of the Rent is a nullity of the Lease by the intent of the original Contract: And also the Lessee is not become Tenant at sufferance after the Condition broken, for Te­nant at sufferance takes the profits to his own use; also none can be Te­nant at sufferance to the Queen, for then he should have the profits of the Lands by Laches, which shall never be imputed to the Queen: Now it is to see, To what purpose this Office is? A common person makes a [Page 142] Lease upon condition, that if the Lessee alien part, and that be found by Verdict, that the Lease shall be void, the Lessee alieneth part, the Lessor grants the reversion over; after the alienation is found by Ver­dict, the Grantee shall have advantage of it; if the Case had been, That if the Rent be behind, and Office found of it, that the Lease should be void, the Rent is arrear, and the King grants the reversion, and afterwards Office is found, now the Lease shall be void against the Grantee: Also this Office shall have relation, and comes in as good time, as if it were found before the Grant; Tenant of the King alie­neth in Mortmain, the King grants over the Seignory, Office is found, now by this Office, the King is entituled, not unto the Land, but unto the profits before the Office: And although the Queen hath granted the reversion over, yet she hath not granted inclusive the mean profits: A common person hath a Rent which is arrear, he grants the Rent, the ar­rearages do not pass: As where the King is seised of an Advowson which becomes void, and afterwards grants the advowson to another, the avoidance shall not pass thereby;Giles's Case. and that was Giles's Case: See 16 H. 7. 7, 8. And in our Case, This Office doth not entitle the Gran­tee, for how can an Office entitle a common person? If the Lease were but voidable, perhaps, so long as the Lease should continue unavoided the Queen should not be answered the profits, contrary, where it is void. And a common person shall have advantage of it.

Egerton, Solicitor general, to the same intent; And he said, that this Lease is altogether void, in privity, property, right and term: In the Case of a common person, after the Rent behind, in such case the Lessee should be Tenant at sufferance, which cannot be in the King's Case; and if Tenant at sufferance, then no privity; for a Re­lease by the Lessor to the Lessee cannot enure, and that for want of pri­vity; Lit. 109. And such Lessee cannot attorn, and if the Lessor after that accepts of the Rent, the same doth not make the Lease good, and all for want of privity; therefore here is no privity: As to property, such a Lease shall not be said Assets in the hands of an Executor, nor shall be sold upon an Extent, nor forfeited by outlawry; And here in this Case, the Queen cannot be said to take any thing by the breach of the Condition, but hath her reversion discharged of the Lease; and he said, That the Office is found well enough for time, and it shall re­late to the time when the title accrued, that is, when the Rent was behind, and the arrearages of the Rent do not pass by the grant of the Land, or the reversion: The Queen hath a Rent-charge out of Lands which is behind, the Lands come to the Queen, and she grants the same over, yet she shall charge the Lands with the said arrearages; but contrary, in case of an injury done upon the Land of the Queen: As the Tenant of the King aliens without licence, and afterwards the Lands so aliened came to the King's hands who grants them over; the Grantee, nor the Land shall be charged, but onely he who was par­ty to the alienation, his Lands, and his Executors; So of an Intrusi­on: Tenant for life of the King makes a Feoffment in Fee, the King grants over the reversion, and afterwards the tortious Feoffment is found by Office; this Office is soon enough for time, and the Grantee of the reversion shall have advantage of it, and the King the mean pro­fits from the time of the alienation: and afterward in Mich. Term, 33 Eliz. the Case was argued by the Barons.

Clark, Puisne Baron, The Lease is conditional, and with a limita­tion also; so conditional and limitation mixt together, 3 Ass. 10. Land given to one untill he come from foreign parts; Lands given to one so long as he shall continue sole, is an Estate for life with limitation upon her marriage; so during the coverture, &c. and these limitations are not collateral, but begin with the Estates, when the Estates are limited; but conditions always come when the Estate is settled, as it is in our [Page 143] Case; yet if the intent and substance of the Contract betwixt the King and the Subject be well considered, there shall not be any difference, &c. Lands devised to one, Proviso, That if the Devisee shall disturb the Exe­cutors of the Devisor, his Estate shall be void, and the land remain over, &c. the same is a good remainder, for it is a limitation conditi­onal: See Scholastica's Case, Plowd. Com. 14 Eliz. 413. concerning an Estate tail with a limitation: And Fitz. James Case there put by Dyer: See Browning and Beston's Case before cited, and Martin Dockra's Case where a condition is conceived in words of Covenant, &c. Gent, Baron, argued to the same intent: Manwood, chief Baron, to the same intent. The Rents reserved upon the Leases of the Queen, are to be paid to Receivors, Baileys, or at the Receipt of the Exchequer: The Queen shall not make any demand of her rent, for she hath an in­finite number of Farmors, and if demand be necessary, she were to send an army of Receivors, or Baileys to receive and demand her rents. If the Rent of the King be to be paid at the Exchequer, if the King's Fermor be there, and tender the rent at due time, and none be there to receive it, he hath saved his Lease, for he hath done his possible en­deavor, although the words of the Condition in the Lease be behind and unpaid, yet not tendred, shall be understood: as in the common case of Mortgages and Obligations. But in all the Record before us, there is no words of any tender, therefore, according to the words of the condition, the Lease is meerly void, and determined in right, in privity, and in tenure; for so is the pleasure of the Prince expressed in her Letters Patents under the great Seal of England, That it shall be then void, and of no effect: Then, i. whensoever the Rent shall happen to be behind; and therefore as soon as the Rent was behind the Lease was determined: so that if after the non-payment a stranger had en­tred upon him, (scil.) the Lessee, upon which he brings Ejectione Firmae, the Defendant might have pleaded the special matter against him, Iudgment if Action: so as the Lease is void in Right: It is also void in Privity and Tenure; for a Release to such Lessee, after the Rent is behind, is altogether void; for he was not then Lessee, and so the privity is gone, and no acceptance can make such Lease good. And if such a Lessee after his Rent would surrender, and in consideration of such Surrender obtain a new Lease from the Queen, this new Lease is also void, for here upon the matter is no surrender: Also such a Lease is void in property; for if the Lessee in such case dieth, his interest, such as it is, shall not be accounted Assets in the hands of his Executor: up­on the breach of this Condition for the Rent, although that the Lease be become void, yet the possession of the land is not resetled in the Queen without Office: and although the Office doth not make the Lease void, which was void before for non-payment of the Rent, yet before Office found the possession is not vested in the Queen; for before Office found we cannot award Process against such a Lessee for his continuing the possession after the Rent behind, and untill Office found the Lessee cannot be found an Intruder; and Tenant at Will he cannot be, for no other Will appears of the Queen, but that in the Letters Patents, and that is to have the Lease void, whensoever the Rent shall be behind, and that Estate is gone because the Rent is behind; Tenant at suffe­rance he cannot be in this case. In case of a common person, when Lessee for years holds over his term, he is become Tenant at sufferance, and such a Tenant shall not pay Rent, for it is the folly of his Les­sor to suffer his Lessee at sufferance to continue possession of the Land after his term, so as every Tenancy at sufferance is made by the Laches of the Lessor, which Laches cannot be imputed to the Queen: therefore here, this Lessee, when the Condition is broken, is not a Tenant at sufferance, nor shall have the profits of the Lands to his own use, but the Law shall account him to be a Bailiff of his own wrong, and so be ac­countable [Page 144] to the Queen, but no Intruder till Office be found: and that appears in our Books, 1 H. 7. 17. The King's Tenant dieth, his Heir within age, if any entreth into the Land of the Heir, he shall not be an Intruder untill Office found, but the Heir or a stranger who entreth before Office, and takes the profits, shall be brought by Process into the Exchequer to make their Accounts, and to answer the issues and pro­fits; but if he intermeddle after Office, he shall be an Intruder. Te­nant of the King alieneth without licence, by that the King is to have the profits, untill he compound with the King, and purchaseth his par­don; and if the Feoffee taketh the profits after the Alienation, he is a Pernor of the profits, and shall answer for them; but he is not an Intruder untill Office found. Tenant of the King is attainted of Fe­lony, the King is entitled to the Land from the time of the Felony com­mitted, yet if he take the profits untill Attainder, he is not an Intruder, but he taketh the profits without Title, therefore he is Bailiff of his own wrong, and so accountable to the King. And it is not a new thing, that a Conveyance or an Estate shall be void as to the Right onely, and not as unto the Possession. The Statute of Doms. West. 2. finis ipso jure sit nullus: i. as to the right of the Entail; yet, as unto the posses­sion, the issue in tail is bound untill he hath recovered it by a Formedon: Vpon the Statute of 21 H. 8. cap. 13. by acceptance of another Benefice against the said Statute, the first Benefice shall be void, &c. yet the same shall not be construed so as to possession, but that the same shall remain with him untill it be taken away from him: The Queen leaseth for years, Proviso, that if the Lessee commit Waste, the Lease shall be void; when first Waste is done the Lease is determined in Right, but not as to the possession before Office finding the Waste: So if the Condition be for the building of a House, for by the breach of the Con­dition, the Lease, as unto the right and interest, is determined, and after Office found it shall revest the possession also: And if a Lease of the King expire by effluction of time, and such effluction appeareth here of Record, if the Lessee in such case continueth his possession, he shall be an Intruder. Sir Robert Chester's Case, Dyer 4. Eliz. 211. Sir Robert Chester was Receivor of the King by Patent, upon condition to render Account yearly at such a day, and before such a day to pay the arrearages; the condition is broken, the Patent was void without Of­fice thereof found, but yet it is not altogether void, for a Scire facias shall be brought against the Patentee. The King leaseth unto A. his Manor of D. and after he leaseth also to the said A. his Manor of S. Pro­viso, that if the Lessee doth not surrender his first Lease of the Manor of D. at such a day, that then the latter Lease of the Manor of S. shall be void: The Surrender is not made, now the Lessee, if he continue his possession in the Manor of S. after, he is an Intruder. Now is to see of what effect the Office is, not to make the Lease void, but to vest the possession in the King again: It hath been objected, That, as the case is, the Office is not to any purpose, for the Queen hath granted the inheritance over, so as the possession cannot be revested in the Queen by that Office against her own Grant, nor can the Queen pu­nish the Lessee as an Intruder for his continuance of the possession after the Office, nor can seise the Land by such Office, and there is not any such Office for the benefit of a Subject, therefore the Office is meerly void. Let us compare our Case unto the Case of Cessavit; The Tenant of the King ceaseth for two years, the King grants the Seignory over in fee, the Cesser is found by Office, the Grantee of the Seignory gains nothing by it; but that is not like unto the Case in question, for there when the Office is found, the Tenant may ten­der the arrearages, for the King is not absolutely entitled by the Cesser, because by tender of the arrearages the Tenant may save his Te­nancy: But in this case, after the Condition is once broken, [Page 145] there is not any means for the Tenant to save the Forfeiture: also the King by his Grant, after the Cesser, hath not granted the thing which accrued unto him by the Cesser, (scil.) the Tenancy, but onely the Seignory: but in our case the King hath granted the thing forfeited, i the land demised: and here is a full forfeiture, contrary in the case of Cesser: And in our Case the King hath granted onely the land de­mised, and not the profits encurred mean between the breach of the Condition, and the Grant of the King, but these remain to the Queen, and to that purpose the Office is good, (scil.) to entitle the Queen to these profits. And as to that which hath been objected, That the Lessee hath always paid the Rent unto the Queen after the Condition broken, and hath an Acquittance of the Receipt of it, therefore no profits due to the Queen, for she hath the Rent in lieu of the profits; and it is not reason, that the Lessee shall pay an annual Rent, and also shall be ac­countable for the mean profits, and so the Office, as unto the mean profits (which in truth upon the matter aforesaid are not due unto the Queen) is void, and then altogether void, quia nihil operatur, To that he answered, That the King shall not be bound off the mean profits in that case by the payment of the said Rent, for by intendment the true annual value of the Land is more than the Rent reserved; and it is not reason but that the Queen shall be answered of the surplusage or over­plus above the Rent, and therefore the Office entituling the Queen to part of the profits is good enough: Tenant of the King for life, or for years, makes a Feoffment in Fee, although that by this Act he cannot pluck any thing out of the King, yet because he hath attempted to do such a wrong, it is a forfeiture, and the Lease for years utterly extinct by it; for it cannot be in the Feoffor against his own act, by which he hath departed with all his Interest, &c. And the Feoffee cannot have it, for if he hath any thing, it ought to be a Fee-simple, or nothing at all; and a Fee-simple he cannot have, for that remains in the King, and so neither have Estate, then is all in the King, and the King hath Title to have the profits, &c. But put case, that after the Feoff­ment the King grant over the Land in Fee, and after that tortious Feoffment is found by Office, he who accupieth the Land after the for­feiture, untill Office be found, shall be occountable to the King for the issues and profits, &c. as Pernor of the profits, or Baily of his own wrong, and he who occupieth the Land after the Office shall be pu­nished as an Intruder. There was a Case very late in this Court betwixt Sir Tho. Henage and one Hungate, which was thus;Sir Tho. He­nage & Hun­gate's Case. the Queen leased for years unto Hungate, provided that he should not do Waste; Waste is done, the Queen granted the Reversion to Sir Tho. Henage, Office is found, the Grantee entred, and his entry was adjudged lawfull, and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say,Sir Walter Mildmay's Case. that that case was not adjudged, but compounded: And he vouched Sir Walter Mildmay's Case: The Lord Sturton held Lands of the Queen in Knights-service, and was attainted of Felony, by which the Lands escheated to the Queen, who granted those Lands; and it was holden, that the Queen should have the mean profits betwixt the time of the Fe­lony committed, and the Grant. And after in the principal Case Iudgment was given for the Plaintiff, (scil.) the Patentee of the Queen against the Lessee; who cast in a Writ of Error, and by his Council prayed, That the Writ of Error be not broken open untill the Iudgment be entred. Manwood, The Iudgment hath reference and relation un­to the first day of this Term, and therefore do not doubt of that.