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.

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 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.

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 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.

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.

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.

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 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 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.

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 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.

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.

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 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.

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.

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 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.

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.

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.

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.

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.

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.

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 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.

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.

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 the converſion to his own uſe, is the cauſe and ground of the Action, and not the ſelling of the goods, &c.

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.

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.

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; 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 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 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: 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. 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 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.

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.

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 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: 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.

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 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 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.

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 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.

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 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.

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.

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 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.

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.

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.

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 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.

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, 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.

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.

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 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.

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.

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.

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 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.

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.

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.

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.

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 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.

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.

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.

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 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 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.

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.

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.

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.

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 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 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.

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 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 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.

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.

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.

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.

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 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.

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 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.

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 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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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 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 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.)

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.

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.

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.

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.

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 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 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 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 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.

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 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 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.

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.

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 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 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.

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.

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.

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 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.

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 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.

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.

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 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 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.

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 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.

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.

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.

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 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.

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.

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 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.

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.

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 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.

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.

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 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.

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 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.

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 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 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.

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 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.

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; 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.

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 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.

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.

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 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.

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.

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.

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, 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.

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.

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 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.

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.

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.

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,

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. 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.

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.

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 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.

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.

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.

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.

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.

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.

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 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.

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.

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 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.

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.

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 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.

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 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.

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.

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 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.

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.

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 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.

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.

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.

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.

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.

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.

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 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.

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.

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 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.

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.

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.

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, 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.

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 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, 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 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 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.