I. 6 Edw. 6. In the Common Pleas.

A Man had a Warrren in Fee extending into three Towns,Benlow's Rep. 12. Owen Rep. 10. 1 And. 26. 13 Co. 57. 1 Inst. 148. a. 7 Co. 23. b. Goldb. 44. and Leased the same by Deed to another, rendring Rent; And afterwards granted by Deed the Reversion of the whole Warren in one of the said Towns to another, and the Lessee attorned; It was holden by all the Iustices in the Com­mon Pleas, That neither the Grantor, nor the Grantee, should have any part of the Rent during the same Term, Because no such Contract can be apportioned.

II. 6 Edw. 6. In the Common Pleas.

A Man by Deed Indented,1 And. 27. Bargained and sold Land unto ano­ther in Fee; and Covenanted by the same Deed, to make to him a good and sufficient Estate in the said Land before Christmas [Page 2] next; And afterwards before Christmas, the Bargainor acknow­ledged the Deed, and the same is enrolled: It was the Opinion of all the Iustices of the Common Pleas, That by that Act, the Covenant aforesaid was not performed: For the Bargainor in per­formance of the same, ought to have levied a Fine, made a Feoff­ment, or done other such Acts.

III. 6 Edw. 6. In the Common Pleas.

1 And. 32.IN Dower, the Tenant made default at the Summons; and now at the Grand Cape, he came and said, That he could not come, because he was in great infirmity at the time of the Sum­mons, so as he could not appear. It was the Opinion of the whole Court, That that matter should not save his Default, because it cannot be tryed, as creit de Eue, and Imprisonment may be.

IV. 6 Edw. 6. In the Common Pleas.

1 And. 32.DEbt against Executors, who pleaded, Riens enter Maynes; which was found against them. The Plaintiff sued forth a Writ of Execution: Vpon which the Sheriff retorned, Nulla bona Testatoris, within the County: It was the Opinion of the Court, That the same was a good Retorn, for it may stand with the Verdict; for it may be that they have Assets in another County. See 3 H. 6. 11. Where the Retorn is general, Quod non habent Executores aliqua bona Testatoris, that it was holden insufficient, but here in this Case the Retorn is special; scil. in the same County.

V. 1 and 2 Philip and Mary. In the Common Pleas.

1 And. 31.TEnant in tail had Issue two Sons, and enfeoffed his younger Son, and died: The younger Son died without Issue, leaving his Wife priviment ensient with a Son; the elder Brother entred: It was holden in this Case, That he was Remitted; and although that afterwards the Son was born; yet the same should not avoid the Remitter.

VI. Stapleton and Truelocks Case. Mich. 1 and 2 Phil. and Mary.

More Rep. 11. WIlliam Stapleton, Executor of John Scardenyll, brought an Action of Debt against John Truelock, Administrator of the Goods of William Truelock, who died Intestate, upon a Bill sea­led. The Defendant demanded Oyer of the Testament: By which it appeared, That the said Scardenyll had made the Plaintiff, [Page 3] and the said William Truelock his Executors: And in the said Will was this Clause; I Will, That my Friend William Truelock shall pay to my other Executor all such debts as he oweth me, before he shall meddle with any thing of this my Will, or take any Advantage of this my Will for the discharge of the same debts, for that I have made him one of my Executors. And upon this matter, It was clearly Resolved, that the said William Truelock could not Adminster, nor be Executor before he had paid the debts. And the Defendant said, That the said William Truelock in his life had paid unto his Co-Executors all such debts which in vita sua debuit to the said Scar­denyll; And also, that the said William Truelock in his life time had Administred the Goods of Scardenyll, with his Co-Executors. And in this Case, Iudgment was given for the Plaintiff, and that for default of pleading: For the Defendant ought to have shewed Acquittances of the payment of the debts to his Co-Executors; and also ought to have shewed in Certainty, what debts they were.

VII. Hecks and Tirrell's Case. 3 and 4 Phil. and Mary.

DEbt by Hecks and Harrison against Tirrell as Heir; Who plea­ded, Nothing by Descent. The Plaintiff Replyed,1 And. 28. Assets at such a place within the Cinque-Ports. And so it was found by a Iury of the County adjoyning, and Iudgment given of the moyety of his Lands, aswell those by descent, as by purchase: And a Writ awarded to the Constable of Dover, to extend the Lands within the Cinque-Ports. But it was said, That first the Plaintiff ought to have a Certiorari to send the Record into the Chancery, and from thence by Mittimus to the Constable of Dover.

VIII. The King and Due and Kirleys Case. 4 and 5 Phil. and Mary.

THe King and Queen brought a Writ of Disceit against Due and Kirley; and declared,More Rep. 13 That one Colley was seised of cer­tain Lands in Fee, and held the same of the King and Queen as of their Mannor of Westbury; the which Mannor is Ancient De­mesne: and so seised, levies a Fine thereof to the said Due, Sur Conusans de Droit come ceo, &c. Due rendred the Land to Colley for life, the Remainder over to Kirley in Fee: Colley died; Kir­ley entred as in his Remainder. Kirley pleaded, That the Land whereof, &c. is Frank▪ Fee, &c. Vpon which, they are at Issue: Which Issue depending, and not tryed, Due died. It was moved in this Case, That the Writ might abate. But that was denyed by the Court. For this Action is but Trespass in its nature for to punish this Disceit; and no Land is to be recovered, but only the Fine Reversed.

IX. Eliot and Nutcombs Case. Mich. 4 and 5 Phil. and Mary. In the Common Pleas.

1 And. 27.THe Case was, That the Bishop of Exeter leased certain Lands in the County of Devon for years, rendring Rent payable in Exeter aforesaid, with Clause of Re-entry; and the Bishop of Exe­ter had a Palace in Exeter aforesaid: It was the Opinion of the Iustices in this Case, That the Rent ought to be demanded at the said Palace, and not elsewhere: And if that the Lessee come to the Common Gate of the said Palace, and there tender the Rent, it is a good tender without more, be the Gate shut or open, notwith­standing that the Bishop be within the Palace, and that neither he nor any of his Servants be at the Gate for to receive it: for the Lessee is not tyed to open the Gate of the Palace, if it be shut; nor to enter into the Palace, if it be open.

X. Mich. 4 and 5 Phil. and Mary. In the Common Pleas.

COpyhold Land was surrendred to the use of the Wife for life, the remainder to the use of the right Heirs of the Husband and Wife: The Husband entred in the right of his Wife: It was the Opinion of the Iustices in this Case, That the remainder was exe­cuted for a Moyety presently in the Wife, and the Husband of that was seised in the right his Wife; and, the Wife dying first, that her Heir should have it:1 Roll. Lane and Pannel's Case. But if the Husband had died first, his Heir should have had one Moyety.

XI. Joscelin and Sheltons Case. Mich. 4 and 5 Phil. and Mary. In the Common Pleas.

More Rep. 13.IN an Action upon the Case, the Plaintiff declared, That the Defendant in Consideration that the Son of the Plaintiff would marry the Daughter of the Defendant, assumed and promised to pay to him 400 Marks in 7 years next ensuing, by such portions. And upon Non Assumpsit pleaded, It was found for the Plaintiff. It was Obiected in Arrest of Iudgment, That one of the said 7 years was not incurred at the time of the Action brought, &c. and that ap­peared upon the Declaration, so as the Plaintiff had not cause of Action for the whole Mony promised. And for that cause, the Writ was abated by the Court by award, although it was after Verdict. See Br. Title, Action upon the Case, 108.

XII. 2 and 3 Phil. and Mary. In the Common Pleas.

IN an Assise against 4. they were at Issue upon Nul Tenant del Franktenement nosme en le brief. And it was found by the Assise, That two of them were Disseisors, and two Tenants: And after Verdict, and before Iudgment, one of those who were found Te­nants, died; And that was moved in Arrest of Iudgment: But it was not allowed of by the Court, Because the parties had not day in Court to plead it. But it was said, That after Iudgment given, a Writ of Error lieth.

XIII. Canons Case. 1 Eliz. In the Common Pleas.

UPon an Evidence to a Iury in the Common-Pleas;1 Roll. 839. Vpon an Issue there, this Deed was given in Evidence, viz. Sciant praesentes & futuri, Quod Ego Richardus Canon, filius & haeres Ri­chandi Canon, Dedi, Concessi, & hac praesenti carta mea Confirmavi Willielmo Compton Militi, Omnia Terr. Tenementa, &c. ad usum mei praed. Richardi & Joannae uxoris meae pro termino vitae abs (que) impe­titione Vasti, ac etiam rectorum haered. mei praefat. Richardi, & as­signatorum meorum post decessum mei praefat. Richardi & Joannae uxoris meae; Et si contingat me praefat. Richardum obire sine exitu de Corpore meo procreato, Tunc Volo, quod omnia dict. Terr. & Tenementa remaneant Tho. fratri meo & rectis haeredibus de Cor­pore suo procreatis, & haeredib. & assignat. eorum. And it was the Opinion of the Iustices, That a good Estate tail was by that Deed limited to the said Richard in use, after the death of his Wife.

XIV. Holt and Ropers Case. 2 Eliz. In the Common Pleas.

IN a Replevin by Holt against Roper, the Case was: J. Abbot of W. Leased to T.M. Knight, a Close of Land in B. for 44 years,Post. 242. 243. who thereof possessed, was attainted of misprision of Treason, and so forfeited to the King, who seised the same: The Abbot and his Covent surrendred, 31 H. 8. the King Leased the same to Roper for 21 years, and died: King Ed. 6th in the fourth year of his Reign, Leased the same to one Philips, To have and to hold, after the Term to T.M. ended, for 21 years: Roper surrendred to Queen Mary, who Leased the same again to Roper for 30 years. In this Case, It was adjudged, That the Lease made to Phillips, was ut­terly [Page 6] void, for that the King was deceived in his Grant; For the Lease made to F.M. was long time before determined by extin­guishment in the Person of the King, who had it by forfeiture upon the Attainder of T.M. and the Statute of 1 E. 6. Cap. 8. shall not help that Lease (notwithstanding the Non-recital, or Mis-recital of Leases made before:) For here is not matter of recital, but mat­ter of Estate and Interest, which is not well limited for the Com­mencement of it, i. the Lease to Phillips; For there is not any certainty of the Commencement of it: For that Lease cannot begin after the Surrender of Roper, for the words of the Limita­tion of the beginning of it, cannot serve to such Construction.

XV. 2 Eliz. In the Common Pleas.

A Term for years is devised to A. The Executors of the Devi­sor entred into the Land devised to the use of the Devisee; It was the Opinion of the Court, That the same was a sufficient possession to the Devisee.

XVI. 3 Eliz. In the Common Pleas.

TWo Coparceners were of a Reversion, the one of them granted his Interest in it by Fine to another; It was holden in that Case, That the Conusee should have a Quid juris clamat for a Moyety of the said Reversion.

XVII. Mich. 4 Eliz. In the Common Pleas.

THe Lessor mortgaged his Reversion in Fee, to the Lessee for years, and at the day of Mortgage for payment of the Mony, he paid the Mony; It was holden in this Case, That the Lease for years was not revived, but utterly extinct.

XVIII. Mich. 4 Eliz. In the Common Pleas.

J.N. Cestuy que use in tail, 14 H. 8. by Indenture between him on the one part, and J.S. of the other part, In Consideration of a Marriage between his Son and Heir apparent, and Joan Daughter of the said J.S. to be had, Covenanted with the said J.S. That neither he, nor any of the Feoffees seised to his use, have made, or hereafter shall make any Estate, Release, Grant of Rent, levy any Fine, or do any o­ther Incumbrance whatsoever of any of his Mannors, Lands, &c. But that all the said Mannors, &c. shall immediately descend or re­main to his said Son, and the Heirs of his Body, after the decease of the said J.N. It was the clear Opinion of all the Iustices in this Case, That by the said Indenture, No use is changed in J N. nor any use raised to the said Son and Heir; but that it is only a bare Cove­nant.

XIX. Andrews and Glovers Case. Trin. 4 Eliz. Rott. 1622.

IN Trespass by Andrews against Glover, The Lady Mary Dacres being seised of the Mannor of Cowdam, by her Indenture bar­gained and sold to the said Andrews, all those her Woods,More Rep. 15. Post. 29. Winch. Rep. 5. Vnder­woods, and Hedge-Rowes, as have been accustomably used to be felled and sold, standing, growing, being in, upon, and within the Mannor of Cowdam, &c. To have and to hold, &c. from the Feast of S. Michael last past, during the natural life of the said Lady Mary: And the said Andrews for himself, his Heirs and Assigns, doth Cove­nant and Grant, to and with the said Lady, her Executors, &c. to con­tent and pay, or cause to be contented and paid to the said Lady, her Executors, &c. yearly during the said Term, 10 l. By force of which Grant, he cuts down all and singular the Trees, Woods, and Vnderwoods in the aforesaid Mannor growing at the time of the making of the Indenture aforesaid. And afterwards the said Lady by her servants, felled all the other Woods and Vnderwoods grow­ing in the same Mannor, after the said felling made by the said Andrews: Whereupon Andrews bringeth Trespass. And the Opi­nion of the Court was clear, That after the Bargainee had once felled, that he should never after fell in the same place where the first felling was made, by force of the said Grant, notwithstanding the Rent yearly reserved, and notwithstanding the words of the Grant, viz. To have and to hold, during the life of the said Dame Mary. Wherefore the said Andrews durst not Demur, &c.

XX. 6 Eliz. In the Kings Bench.

THe Case was; A. is bounden to B. in an Obligation to pay to B. 20 l. at the Feast of our Lady, without limiting in Certain, what Lady-Day, viz. the Conception, Nativity, or Annunciati­on; And the Opinion of the whole Court was, That the Deed should be construed to intend such Lady-Day, which should next happen and follow the date of the said Obligation.

XXI. Scarning and Cryers Case. Mich. 7 Eliz. In the Common Pleas. Rott. 1851.

IN a Second Deliverance by Scarning against Cryer, the Defen­dant makes Conusans as Bailiff to J.S. and sheweth,More Rep. 75 That the said J.S. and at the time of the taking, &c. was Lord of the Mannor of A. Within which Mannor, there was this Custom time out of mind, &c. That the Tenants of that Mannor and other Resiants and Inhabitants within the said Mannor, or the greater part of them at the Court-Baron of the said Mannor, at the Mannor afore­said [Page 8] holden, were used and accustomed to make Laws, and impose Pains as well upon the Resiants and Inhabitants within that Mannor, and the Tenants of the said Mannor there being; as upon every Occupier of any Tenements within the said Mannor, for good government there to be had and kept, and for the preservation of the Corn and Grass there growing: And that the said J.S. and all those whose Estate, &c. distringere consueverunt pro omnibus poenis sic forisfact. & per Juratores Curiae praed. ex assensu dictor. Tenent. Inhabitant. & residentium ibid. in forma praedict. assessis & impositis; tam super quibuscun (que) tenent. Maner. praedict. aut inhabitantibus aut residentibus infra Maner. illud, quam super occupatoribus ali­quor. Tenementor. infra idem Maner': And further said, That at a Court-Baron there holden, That Coram Sectatoribus ejusdem Curiae, by the Homage of the said Court then charged to present, with the assent of other Tenants and Inhabitants of the said Man­nor, it was Ordained and Established, That no Tenant of the Man­nor aforesaid, nor any of the Resiants or Inhabitants within the said Mannor, nor any Occupier of any Tenements within the said Man­nor from thenceforth, should keep his Cattel within the several Fields of that Mannor by By-herds, nor should put any of their Oxen, called Draught-Oxen, there before the Feast of St. Peter, upon pain, Quod quilibet tenens residens, &c. should forfeit 20 s. And further said, That the Plaintiff, at the time, &c. Occupied and had such a Tenement within the said Mannor; And that at such a Court afterwards holden, viz. such a day, It was presented, that the Plain­tiff Custodivit boves suos, called Draught-Oxen, within the several Fields by By-herds, contrary to the Order aforesaid, by which, the penalty of 20 s. aforesaid, was forfeited, Notwithstanding the said pain de gratia Curiae illius per quosd. A. & E. afferratores Curiae illius ad hoc jurat. assess. & afferrat. fuit ad 6 s. 8 d. And further he said, That the place in which the taking, &c. is within the Mannor aforesaid; And that A. B. Steward of the said Mannor extraxit in scriptis extra Rotulis Curiae praed. the said pain of 6 s. 8 d. and de­livered the same to the Defendant, Bailiff of the said Mannor, to Collect and Receive; by force of which, he required the said 6 s. 8 d. of the Plaintiff, and he refused to pay it; and so avoweth the ta­king, &c. And upon this Conusans of the Defendant, the Plaintiff did Demur in Law: And Iudgment was given against the Conu­sans, 1. Because he pleaded, That it was presented Coram Sectato­ribus, and doth not shew their Names. 2. The penalty appointed by the By-Law, was 20 s. and he sheweth, it was abridged to 6 s. 8 d. and so the penalty demanded, and for which the Distress was taken, is not maintained by the By-Law; and a pain certain ought not to be altered. 3. He sheweth, that it was presented, that the Plaintiff had kept his Draught-Oxen; and he ought to have alledged the same in matter in fact, that he did keep, &c.

XXII. Dedicots Case. 7 Eliz. In the Common Pleas.

DEdicot seised of certain Customary Lands,Dyer 210, 251. Hob. 285. surrendred the same into the hands of the Lord, to the intent that the Lord should grant the same de Novo to the same Dedicot for life, and af­terwards to Jane his Wife, during the Nonage of the Son and Heir of Dedicot; and afterwards to the said Son and Heir in tail, &c. De­dicot died before any new Grant: Afterwards, the Lord granted the said Land to the Wife, during the Nonage of the said Heir, the remainder to the Heir in tail, the Heir at that time being but of the age of 5 years; so as the said Wife by force of the said Surrender and Admittance, was to have the said Lands for 16 years: The Wife took another Husband, and died; And it was the Opinion of Brown and Dyer, Iustices, That the Husband should have the Lands during the Nonage of the Enfant;Hob. Rep. 281. for the Wife had her said Estate to her own use, and then her Husband surviving her, should have it, and that without any admittance, for that he is not in of any new Estate, but in the Estate of his Wife as Assignee. And it was said by them, That if a Copyholder be for years, and maketh his Execu­tors, and dieth, that the Executors should have the Term,Co. Case of Copyholders. and that without any Admittance: Weston, contrary in that case, as to the Executors.

XXIII. Tindall and Cobbs Case. 7 Eliz. In the Common Pleas.

WAste was brought by Tindall, Knight, against Jeoffery Cobbe Esquire; and the Plaintiff declared of a Demise of the moyety of the Mannor of Wolverton; and of the moyety of a Wood called Wolverton-Wood. The Defendant pleaded, That Robert Winckfield before the Waste supposed, was seised of and in tertia parte alterius Medietatis of the said Mannor, and of and in tertia parte alterius Medietatis of the aforesaid Wood, and held the same insimul & pro indiviso with the Plaintiff; and that the said Robert Winckfield, by his Deed, sold to the Defendant omnes & omnimodas arbores & subboscos suos crescent. in praedict. tertia parte alterius medietatis praedicti bosci ad libitum ipsius Galfridi succidend. and so justified the cutting down of 300 Oaks, in which the Waste is assigned; with this, that he will aver, That the aforesaid 300 Oaks were the third part only in numero & precio medietatis omni­um arbor. & subboscorum at the said time when the Waste is sup­posed to be done; and demanded Iudgment, if Action: And divers Exceptions were taken to the Count: 1. He sheweth,Vaugh. Rep. 175. that the Demise of the moyety of the Mannor was per nomen, &c. and doth not shew, that the demise was by writing; and if not, then he can­not [Page 10] plead it by a per Nomen. 2. The Waste is assigned in digging of Clay in 100 Acres of Lands, parcel Medietatis Maner. de Wol­verton, and hath not shewed in what Town the Land is: For he hath shewed before, the Demise of the moyety of the Mannor of Wolverton in Wolverton. 3. He shews the Demise of the moye­ty of the Mannor of Wolverton, and of other Lands, and assigns the Waste in cutting down Oaks in quodam bosco vocat. Wolverton Wood, parcel praemissorum; and that cannot be: for this Wood cannot be parcel of the Mannor of Wolverton, and of the other Lands also. And for these Causes, the Count by the whole Court was holden to be insufficient.

XXIV. Stamfords Case. 7 Eliz. Dyer. In the Common Pleas

HUgh Stamford, seised in Fee, had Issue A. his eldest Son, and B. his younger Son: A. had Issue George and Elizabeth by di­vers Women; Hugh made a Feoffment in Fee to the use of him­self for life, and afterwards to the use of George in tail, and after­wards to the use of A. in tail, and afterwards to the use of the right Heirs of Hugh: Hugh dieth; A. dieth; George levieth a Fine to the use of himself in tail, the remainder over to B. in Fee, and dy­eth without Issue: It was holden by Bendloes, Carell, Kelloway, both the Bromleys, and Kingsmill, That Elizabeth is barred by this Fine, by the Statute of 4 H. 7. & 32 H. 8.

XXV. 7 Eliz. In the Common Pleas.

THe Case was this; Grandfather, Father, and Son: Lands are given to the Grandfather for life, the remainder to the Son in tail; The Grandfather and Father joyn in a Feoffment with warranty; The Feoffee makes a Lease for years, and afterwards conveys the Land to the Grandfather for life, the remainder to the Father in Fee: The Grandfather and Father die; The Son en­treth, and puts out the Lessee: Weston was of Opinion, That the Entry of the Son was lawful; for it was the Feoffment of the Grandfather, and the Confirmation of the Father, and the War­ranty of the Grandfather collateral to the Father and his Estate: but when the Land is re-assured, as above is said, and afterwards the Son entreth after the death of the Grandfather and Father, now he is remitted, and the warranty gone, by taking back the Estate: and the Son is now seised of as high an Estate as his Ancestor was at the time that he departed with the Land, by which the warranty is determined. Dyer, contrary: Here had not been any discontinu­ance, if the warranty had not been; for the Father was never sei­sed by force of the entail; And I conceive, that against a warranty collateral, one cannot be remitted; for it binds the Right, as a Fine with Proclamation, after the Statute of 4 H. 7. And I con­ceive, [Page 11] that during the possession of the Grandfather, the Warranty is but suspended, and not determined: and although that by the death of the Grandfather it be determined; yet having respect to the Lessee, it is in being; for his Estate is derived out of the Estate which was war­ranted, and which descends with the Warranty. Bendloes, One cannot make Title by a Collateral Warranty only, &c.

XXVI. Simonds Case. 8 Eliz. In the Common Pleas.

IN a Formedom, the Tenant vouched Rose Simonds as Daughter and Heir of Henry Simonds, Clerk; and because she was within age, he prayed that the Parol might demur. Bendloes recited the Case to be this; A Fine was levied of the Lands to Henry Simonds, upon Condition, &c. who rendred back the Land to the Conusor by the same Fine; and that the said Henry Simonds never had any posses­sion, or seisin, but that which he had mean between the Conusans, and the Rendee; of which possession the Wife should not be endow­ed: And therefore it is a good Counter-plea to say, That the said Rose, nor any of her Ancestors, &c. for that was not such a Seisin upon which Warranty might rise; and so if a Feoffment in Fee had been made to the said Henry Simonds to the use of another: And of that Opinion, was Dyer, Iustice; for Henry Simonds had not any possession by force of which he might be vouched. Welsh, con­trary; For the Fine imports in it self, that he hath a Fee, and that he hath granted and rendred the same Fee, and this Fine amounts to a Feoffment. Dyer said to Bendloes, The best way for you, is to plead the Counter-plea generally; and if he estop you by the Fine, to demur upon it. Afterwards, Bendloes moved another matter, viz. Henry Simonds was a Priest, and therefore Rose is a Bastard; and if so, then she cannot be vouched as Heir: But I would not trust the Bishop to Certifie the Bastardy, if I should plead it generally, and therefore I will plead the special matter, and so it shall be tryed by the Country. Dyer and Welsh, So you may do, if you please; and yet if you plead general Bastardy, it shall be tryed by the Country; for Rose is not a party to the Writ; and in such case, Bastardy shall be tryed by the Country.

XXVII. Mich. 8 Eliz. In the Common Pleas.

NOte; It was said by Dyer and Brown, Iustices, That if a Man deviseth by his Will to his Son, a Mannor in tail,2 Cro. 49. Yelv. 210. and after­wards by the same Will he deviseth a third part of the same Lands to another of his Sons, they by this are Ioynt-Tenants: And if a Man in one part of his Will deviseth his Lands to A. in Fee, and afterwards by another Clause in the same Will, deviseth the same to another in Fee, they are Ioynt-Tenants.

XXVIII. Drew Barrentines Case. Mich. 8 Eliz. In the Common Pleas.

THe Case was; Drew Barrentine and Winifred his Wife, were seised of the Mannor of Barrentine, which is Ancient Demesne, and holden of the Lord Rich, as of his Mannor of Hatfield, levy a Fine thereof Sur Conusans de droit, &c. by which Fine the Conu­see rendreth the said Mannor to the said Drew and Winifred in special tail, the Remainder to Winifred in tail, the remainder to the Countess of Huntington in tail, the remainder to the Heirs of the body of Margaret late Countess of Salisbury, the re­mainder to the Queen in Fee: It was moved by Bendloes, Ser­jeant, If the Lord Rich being Lord of the Mannor, might reverse this Fine by a Writ of Disceit, and so Recontinue his Seignory: and he said, That he might; and thereby all the Estates which pas­sed by the Fine, should be defeated, even the remainder which was limited to the Queen, for by it the Fine shall be avoided to all in­tents. Welsh, Iustice, Such a Writ doth not lie; For by the remainder limited to the Queen by the Fine, all mean Signories are extinct, Then, if it be so, Disceit doth not lie. If the Tenant in Ancient Demesne levieth a Fine, and afterwards the Lord Pa­ramount, who is Lord of the Mannor, doth release to the Conusee, and afterwards the Lord of the Mannor brings a Writ of Disceit, he gains nothing by it: And if the Tenant in Ancient Demesne levieth a Fine of it, and dieth, and the Heir confirmeth the Estate of the Conusee, and afterwards the Lord by a Writ of Disceit re­verseth the Fine; yet the Estate of the Conusee shall stand. But all these cases differ from our case. For in all those cases, another act is done after the Action given to the Lord; but in our case, the whole matter begins in an instant, & quasi uno flatu, and then if the principal be reversed, the whole is avoided; For the whole Estate is bound with the Condition in Law, and that condition shall ex­tend as well to the Queen and her Estate, as to another. And if Lands is Ancient Demesne be assured to the King in Fee upon Condition, Now during the possession of the King, the nature of the Ancient Demesne is gone; but if the Condition be broken, so as he hath his Land again, it is Ancient Demesne as it was before: and so the Estate of the Queen is bounden by a Condition in Law.

XXIX. Mich. 8 Eliz. In the Dutchy-Chamber.

NOte; It was holden by Welsh in the Dutchy Chamber, That whereas King Edw. the 6th, under the Seal of the Dutchy, had demised Firmam omnium tenentium at Will Manerii sui de S. That nothing but the Rent passed, and not the Land; for Firma, signifies Rent; as in a Cessavit de feodo firmae: But the Clerks of the Court said, That their course had always been, to make Leases [Page 13] in such manner. But Welsh continued in his Opinion as aforesaid: And further he said, That this was not helped by the Statute of Non-recital, or Mis-recital, &c. for that here is not any certainty; For sometimes (Firma) signifies Land, sometimes Rent.

XXX. Mich. 8 Eliz. In the Common Pleas.

THis Case was holden for Law by the whole Court; Two Co­parceners are, and one of them dieth, her Heir of full age, she shall not pay a Relief; for if she should pay any at all, she should pay but the moyety; and that she cannot do, for a Relief cannot be ap­portioned, for Coparceners are but one Tenant to the Lord.

XXXI. 8 Eliz. In the Common Pleas.

AN Action upon the Case was brought, for stopping of a Way; The Plaintiff declared, That the Duke of Suffolk was sei­sed of a House in D. and Leased the same to the Plaintiff for life; And that the said Duke, and all those whose Estate, &c. have used time out of mind, &c. to have a Way over the Lands of the Defen­dant unto the Park of D. to carry and recarry Wood necessary for the same House, from the said Park to the same House; and further declared, That the Defendant Obstupavit the Way. It was mo­ved by Carns, That upon this matter, no Action upon the Case lieth, but an Assise, because that the Freehold of the House is in the Plaintiff; and also the Freehold of the Land over which, &c. is in the Defendant: But if the Plaintiff or Defendant had but an Estate for years, &c. then an Action upon the Case would lie, and not an Assise: All which was granted by the Court.Post. 263. It was also holden, That this word▪ Obstupavit, was sufficient in it self; scil. without shewing the special matter how; as by setting up any Gate, Hedge or Ditch, &c. for Obstupavit implyes a Nusans conti­nued, and not a personal disturbance, as a Forestaller, or in saying to the Plaintiff upon the Land, &c. that he should not go there, or use that Way; for in such cases, an Action upon the Case lieth. But as to any local or real disturbance, Obstupavit amounts to Obstruxit: And although in the Declaration is set down the day and the year of the Obstruction, yet it shall not be intended, that it continued but the same day: for the words of the Declaration are further, by which he was disturbed of his Way, and yet is; and so the continuance of the disturbance is alledged: And of such Opinion also was the whole Court. Leonard, Prothonotary, said to the Court, That he had declared of a Prescription, habere viam tam pedestrem quam equestrem, pro omnibus & omnimodis Cariagiis, and by that Prescription he could not have a Cart-way, for every Prescription is stricti juris. Dyer, That is well Observed, and I conceive that the Law is so; and therefore it is good to prescribe, habere viam pro omnibus Cariagiis, generally, without speaking of Horse-way or Cart-way, or other Way, &c.

XXXII. Stowell and the Earl of Hertfords Case. Mich. 8 Eliz. In the Common Pleas.

IN a Formedom in the Remainder by John Stowel and R.R. against the Earl of Hertford, the Case was; That Lands were given to Giles Lord Daubeney in tail, the remainder to the right Heirs of J.S. who had Issue two Daughters, Agnes and Margaret, and died: The Donee died without Issue, and the Demandants as Heirs of the said Agnes and Margaret, brought a Formedom in the Remain­der: And it was awarded by the Court, That the Writ should abate; For the Writ shall be brought by the Heir of the Survivor of the said two Daughters, because they have that remainder as purchasors.

XXXIII. Stuckly and Sir John Thynns Case. Mich: 9 Eliz. In the Common Pleas.

THo. Stuckly; Administrator of the Goods and Chattels of one Tho. Curties, Alderman of London, brought Debt upon an Obligation, against Sir John Thynn, and demanded of him 1000 l. Et modo ad hunc diem venerunt, Tam praefatus Tho. Stucklie, quam praedict. Johannes Thynn; Et super hoc, dies datus est us (que) Oct. &c. in statu quonunc, &c. salvis, &c. At which day, the Defendant made default, and thereupon the Plaintiff prayed his Iudgment against the Defendant. But the Opinion of the Court was, That he could not have it; but was put to process over, because Dies Datus, is not so strong as a Continuance.

XXXIV. Luke and Eves Case. Pasch. 10 Eliz. In the Common Pleas.

IN a Replevin by Luke against Eve, The Defendant Avowed, be­cause that the Iury at such a Leet did present, That the Plaintiff was a Resiant within the Precinct of the said Leet, &c. and that the Plaintiff was warned to appear there, and notwithstanding that made default: For which he was Amerced by the Steward there to 5 s. And so for that Amercement, he avowed the taking, &c. The Plaintiff in bar of the Avowry, pleaded, That at the time of the said Leet holden, he was not a Resiant within the Precinct of the said Leet: Vpon which they were at Issue; And it was found for the Avowant. Whereupon Iudgment was given for the Avowant to have a Retorn.

XXXV. Mich. 14 Eliz. Rott. 1120. In the Common Pleas.

THe Abbot and Covent of York, Leased to J.S. certain Lands at Will; and afterwards by Deed Indented under their Covent Seal, reciting, That whereas J.S. held of them certain Lands at Will, they granted and demised that Land to the said J.S. to hold for life, rendring the ancient Rent; And by the same Inden­ture granted the Reversion of the same Land to a stranger for life: It was holden by the Court clear, That an Estate for life accrueth unto J.S. by way of Confirmation, and the remainder unto the stranger depending upon the Estate created by the Confirmation▪

XXXVI. Sir Francis Carews Case. Mich. 14 Eliz. In the Common Pleas.

SIr Nicholas Carew, seised of the Mannor of A. of which Man­nor B. held certain Lands; B. is disseissed by C. C. assures the same to Sir Nicholas Carew, who is attainted of Treason; by which Attainder, the Mannor and Land cometh to King Henry 8th who thereof dieth seised, and the same descends to King Edward the 6th, who grants the same Mannor to the Lord Darcy, who grants the same to Queen Mary, who grants the same to Francis Carew, Son of Nicholas Carew, who by Fine assures the same to the Lord Darcy; the Proclamations pass, and the 5 years pass; she who hath right to the Lands whereof the Desseisin was made, being for all that time a Feme Covert; And therefore the Fine did not bar her: But because that the King was entitu­led to the Land by a double matter of Record, and by the descent from Hen. the 8th, to Ed. the 6th; And also because a Seignory is reserved to the King upon the Grant made by King Edward the 6th, to the Lord Darcy; The Iustices were all of Opinion, That the Entry of the Heir of the Disseisee was not lawful upon the Pa­tentee of the Queen,2 Len. 122. but that she ought to be Relieved by way of Petition.

XXXVII. Mich. 14 Eliz. In the Common Pleas.

A Man brought an Action of Trespass against another, for cha­sing of his Ewes being great with Lambs, so as by such driving of them, he lost his Lambs. The Defendant justified, because they were in his several Damage-feasans; wherefore he took them, and drove them to the Pound: And it was holden by the whole Court, to be no Plea: for, although that he might take; yet, he cannot drive them with peril, &c.

XXXVIII. Mich. 14 Eliz. In the Common Pleas.

More Rep. 16, 23.THe Case was; A. made a Lease to B. for life, and further grants unto him, That it shall be lawful for him to take Fewel upon the premisses; Proviso, That he do not cut any great Trees: It was holden by the Court, That if the Lessee cutteth any great Trees, that he shall be punished in Waste: but in such case,1 Len. 117. the Lessor shall not re-enter, because that Proviso is not a Condition, but only a Declaration and Exposition of the Extent of the Grant of the Lessor in that behalf. And it was holden also by the Court, That Lessee for life, or for years, by the Common Law, can­not take Fewel but of Bushes and small wood, and not of Timber-Trees. But if the Lessor in his Lease granteth Fireboot expresly, if the Lessee cannot have sufficient Fewel, as above, &c. he may take great Trees.

XXXIX. Mich. 14 Eliz. In the Kings Bench.

2 Roll. 787.IN Trespass, upon an Evidence given to the Iury at the Bar, the Case appeared to be thus; Land was given to A. in tail, the remainder in Fee to his Sisters, being his Heirs at the Common Law: A. made a Deed in this manner; viz. I the said A. have given, granted, and confirmed, for a certain piece of Mony, &c. without the words of Bargained, Sold: And the Habendum was to the Feoffee with warranty against A. and his Heirs; And a Letter of Attorny was to make Livery and Seisin: And the Deed was in this manner, To all Christian People, &c. And the Deed was en­rolled within one month after the making of it; And the Deed was Indented, although that the words of the Deed, were in the form of a Deed Poll: And after 4 months after the delivery of the Deed, the Attorny made Livery of Seisin. A. died without Issue, and the Sisters entred, and the Feoffee ousted them of the Land; and thereupon they brought an Action of Trespass: And the Opinion of the whole Court, was for the Plaintiff; for here is not any Dis­continuance, for the Conveyance is by Bargain and Sale, and not by Feoffment, because the Livery comes too late after the Inroll­ment, and then the Warranty shall not hurt them: And although that in the Deed there be not any word of Indenture, and also that the words are in the first person; Yet in as much as the Parchment is Indented,2 Roll. 787. and both the parties have put their Seals to it, it is sufficient. Also, It was clearly agreed by the Court, That the words, Give for Mony, Grant for Mony, Confirm for Mony, Agree for Mony, Covenant for Mony, If the Deed be duly Inrolled, that the Lands pass both by the Statute of Vses, and by the Statute of Inrollments, as well as upon the words of Bargain and Sale. And by Catline, Wray, and Whiddon, the party ought to take by way of Bargain and Sale, and he hath not election to take the Land by way of Livery: But when all is in one Deed, and takes effect [Page 17] equally together, in such case the Grantee hath Election; but here in this Case, the Bargain and Sale (the Deed being Inrolled) doth prevent the Livery, and taketh his full effect before. And by Wray and Catline, If he in the Reversion upon a Lease for years, grants his Reversion to his Lessee for years by words of Dedi, Concessi, Feoffavi, and a Letter of Attorny is made to make Li­very and Seisin, the Donee cannot take by the Livery, for that the Lessee hath the Reversion presently.

XL. Mich. 14 Eliz.

IN an Ejectione Firmae, the Case upon Evidence appeared to be thus; The Bishop of Rochester, Anno 4 E. 6. Leased to B. for years rendring Rent; and afterwards, granted the Reversion to C. for 99 years, rendring the ancient Rent, To have from the day of the Lease without impeachment of Waste; which Grant was confirmed by the Dean and Chapter: But B. did not Attorn; And for default of Attornment, It was holden by the whole Court, That the Lease was void; for it is made by way of grant of a Reversion, and to pass as a Reversion. But by Catline, If the Bishop had granted the Reversion, and also demised the Land for 99 years, it should pass as a Lease to begin first after the former Lease determined. And as to the Attornment, it was given in Evi­dence, That B. after the notice of the Grant to C. spake with C. to have a new Lease from him, because he had in his Farm but 8 years to come, but they could not agree upon the price; And the Iustices were of Opinion, That that was an Attornment, because he had admitted the said C. to have power to make a new Lease unto him. Also the said B. being in Company with one R. seeing the said C. coming towards him, said to the said R. See my Landlord; mean­ing the said C. Bromley, Sollicitor, That is no Attornment, be­ing spoken to a stranger. Barham, contrary, because he was pre­sent. And it was held by the whole Court, to be a good Attorn­ment. But it was holden, That if the Attornment was not be­fore that the Bishop was translated to Winchester, That the Lease should be void: and although that the Confirmation of the Dean and Chapter was before the Attornment, so as no Estate had vested in C. yet it is good enough; for the assent of the Dean and Chapter is sufficient, whether it be before or after; by Catline, Southcote, and Whiddon: Wray, contrary.

XLI. Mich. 14 Eliz.

THe King seised of a Mannor to which an Advowson is appen­dant, a Stranger presents, and his Clerk is in by 6 months; The King grants the Mannor, with all Advowsons appendant to it, to B. The Incumbent dieth, The Grantee may present; For the Advowson was always appendant, and the Inheritance [Page 18] thereof passeth to the Grantee, and is not made disappendant by the usurpation, as in the case of a common person, for the King cannot be put out of possession. But the Patentee shall not have a Quare Imped. of the first disturbance, for that presentment doth not pass to him, being a thing in Action, without mention of it in his Grant. And if the Patentee bringeth a Quare Impedit of the second Avoy­dance, he shall make his Title by the presentment of the King, not making mention of the usurpation; yet if the Bishop presenteth for Lapse in the case of a common person, he ought to make menti­on of it; for that is his Title to the Presentment, &c.

XLII. Humfrey and Humfrey's Case. Mich. 14 Eliz. In the Common Pleas.

BEtween Humfrey and Humfrey, the Case was, That the De­fendant in Debt after Iudgment aliened his Land; and the Plaintiff sued forth Execution upon the new Statute: And the Court of the Request awarded him to the Fleet, because that he sued forth Execution. Whereupon the Iustices of the Common Pleas a­warded a Habeas Corpus, and discharged the Plaintiff. It was said by Bendloes, Serjeant, That the Chancery after Iudgment could not enjoyn the party that he shall not sue forth Execution; for if they do, the party shall have his remedy as above.

XLIII. Mich. 14 Eliz. In the Kings Bench.

A Man seised of Copyhold Lands, Deviseth a certain parcel of them to his Wife for life, the remainder to his Brother and his Heirs; And afterwards in the presence of 3 persons of the Court, said to them, I have made my Will, and I have appointed all things in my Will as I will have it. And afterwards he said, And here, I surrender all my Copyhold Lands into your hands accor­dingly. And it was moved, If all his Copyhold Lands should be to his Wife, or by those which were specified in the Will. And the Opinion of the whole Court was, That the Surrender is re­strained by the Will, so as no more passeth to the Wife upon the whole matter, but that which is mentioned in the Will; and the general words shall not enlarge the matter.

XLIV. Hill. 14 Eliz. In the Common Pleas.

LAnds were devised to the Mayor, Chamberlain, and Gover­nors of the Hospital of St. Bartholomew in London, where­as in truth, they are Incorporated by another name, yet the De­vise is good, by Weston and Dyer; which Manwood also granted, because it shall be taken according to the intent of the Devisor: And it was said by Weston, If Lands be devised to A. eldest Son of B. [Page 19] although that his name be W. yet the Devise to him is good, be­cause there is sufficient certainty, &c.

XLV. Pasch. 14 Eliz. In the Common Pleas.

THe Case was; A. seised of Lands, deviseth the same to his Wife for life, the remainder to his three younger Sons, and to the Heirs of their bodies begotten, equally to be divided amongst them by even portions; and if one of them die, then the other two which survive, shall be next Heirs. The Devisor dieth, One of the Sons dieth; and, by Dyer and Weston, Iustices, The 3 Brothers were Tenants in Common in remainder. But contrary it is, where such a Devise is made between them, To be divided by my Executors, &c. there they are Ioynt-Tenants, until the division is made: but here, although the words are, Equally to be divided, the same is not intended of a Division in fact and possession, but of the Interest and Title; For if a Man bringeth a Praecipe quod red­dat, de una parte Manerii de D. in 7 parts to be divided, it is not intended, divided in Possession, but divided in Interest and Title. And it was said by the said Iustices, That although one of the Bro­thers dieth, the two surviving Brothers have his part by purchase, and not by descent, and they are Ioynt-Tenants of it. And this was the Case of one Webster and Katherine his Wife, the late Wife of John Bradbury.

XLVI. Pasch. 14 Eliz. In the Common Pleas.

THe Case was; Lessee for years of the Pawnage of the Park of H. grants all his Goods and Chattels, moveables and im­moveables within the said Park; It was holden by Weston and Dyer, Iustices, That the Lease of the Pawnage passeth by these words. And it was said by Dyer, If a Man hath a Lease for years of a House, and grants all his Goods and Chattels being in the same House, that as well the Lease of the House as the Goods within it, pass by such a Grant.

XLVII. Pasch. 14 Eliz. In the Common Pleas.

NOte: It was said by Weston, and Bendloes, That a Retraxit cannot be before a Declaration; which Leonard and Filmer, Prothonotaries, granted: And Dyer said, That it being before a Declaration, it is but a Nonsuit; and Wheatley and Filmer affir­med the same: and therefore, it was adjudged, That such a Re­traxit in the Court of Hustings before the Sheriff, is no Plea in Bar.

XLVIII. Pasch. 14 Eliz. In the Common Pleas.

IN Debt brought against Christmas, who shewed forth a Protection, Quia Profecturus with the Lord Hunsdon to Barwick: Dyer doubted, If the Protection did lie? But said, It should be rather Mo­raturus, then Profecturus: For a Protection Quia Profecturus to Cal­leis, was never good, but super victitation. Calicii. Harper, contrary; For Barwick is out of the Realm: And he said, That he was once of Counsel, Where a Bill was exhibited in Parliament, to make Hex­ham part of England: and he said, That in the time of the Queen that now is, One Carre struck a Man, who thereof died at Barwick; and in an Appeal thereof, brought here by the Wife, Carre was dismissed.

XLIX. Cranmers Case. Hill. 14 Eliz. Rott. 938. In the Common Pleas.

Dyer 309, 310. 2 Len. 5. 1 Len. 196. 1 And. 19. More Rep. 100. Office of Ex­ecutors, 118. 119. TThomas Cranmer, Archbishop of Canterbury, having a Rever­sion in Fee of certain Lands upon a Lease for years, granted the Reversion to the use of the Grantor himself for his life; and after his decease, to the use of the Executors and Assignees of the Grantor for 20 years next after the death of the Grantor; and af­ter to the use of Thomas his Son in tail, and afterwards to the use of the Grantor in Fee: The Grantor is attainted of Treason, and the Queen gave the said Term of 20 years to the Wife of the Grantor, who took to Husband Ed. White-Church, who let the Land to A. Thomas the Son entred, and leased the same Land to one Kirk, who upon an Ouster, brought Ejectione Firmae. This Case was Argued by the Iustices; Manwood, the puisne Iustice, conceived, That the Plaintiff ought to be barred, and that the Les­see of White-Church, who claimed by the grant of the Queen the said Term of 20 years, ought to hold the Land against the Son of the Grantor; For the remainder limited to the Son, is not yet be­gun in possession. And he insisted much in his Argument upon this point, That Vses limited upon any Conveyance, are governed and directed according to the Rules of the Common Law: As if a Feoffment in Fee be made unto the use of another for life, the re­mainder to the use of the Lessee for life, and the Heirs of his body, &c. now the party hath an estate tail executed in possession, and that is according to the Rule of the Common Law. And he cited the Case of 40 E. 3. 20. Where Land was given by Fine to A.B. and C. and to the Heirs of the body of C. and for default of such Issue, the remainder to the right Heirs of A. C. died without Issue; B. dy­ed, and afterwards A. died; his Heir brought a Scire facias out of the said Fine: And by Iudgment of the Court, the Scire facias did not lie, for the Fee was vested in the Father of the Deman­dant, although that ex vi verbi, the remainder was limited not to the Father, but to his Heirs: But where Vses are limited in other [Page 21] manner than according to the Rules of the Common Law, there they shall not be ruled and governed by the Rules of the Common Law: As if Lands be given to the use of one for life, and to the use of such Lessees to whom the Tenant for life shall de­mise the same for years or life, rendring Rent, the remainder over to a stranger in tail, and afterwards the Tenant for life makes a Lease for years, or life, and dieth; such a Lease shall bind him in the remainder, although that the Lessor had not but for life, and be now dead: for the Vse limited here to the Lessees, which would be, was limited contrary to the Rules of the Common Law. For by the Common Law, such Leases made by Tenant for life, are de­termined by his death: And in this Case, This Lease for 20 years, after the death of the Grantor, was limited according to the Rules of the Common Law, and therefore it shall take effect accordingly, as if it had passed in possession, and not in use, as if the Convey­ance had been of the Land it self, and that Land had been granted to the Grantor for 20 years after his death, that Interest had been vested in him to sell, forfeit, or otherwise to dispose at his pleasure, and shall not accrue to the Executors as a purchase. 19 E. 2. Fitz. Covenant, 25. Land was Leased to one for life, and after his de­cease, to his Executors and Assigns for 10 years; the Lessee as­signed the Term; And, by Herle, it is a good Assignment; For it is in the Election of the Lessee to Devise that Interest, or to assign it in his life-time. And see 39 E. 3. 25. A Lease was made to one for life, and a year over. 17 E. 3. 29. Lessee for life, so as after his death, the Land remain to his Executors for 8 years; Lessee for life died; He who had the Freehold of the Land was impleaded, who rendred the Land, and the Executors of the Lessee for life prayed to be received; scil. (where as Executors do hold the Term;) which proves, that they had the Term as Executors to the use of the Testator, and so Assets, therefore the same was be­fore in the Lessee for life. But by Dyer, in his Argument, That Case doth not prove it, and certain [...]y it is not Assets; For al­though the Executor have the same Term by purchase, yet they have it as Executors, for that is a good name of purchase, which Harper concessit: And Manwood argued further, and he Cited 19 E. 3. Fitz. Covenant, 24. Land was let for life, and if the Les­see died within 12 years, that his Executors should hold the same until the end of the 12 years; The Lessee for life died, and the Executors entred, and the Executors of the Lessee for life brought Actions of Covenant, which proved, that the Executors had the Term as a Chatel vested in the Testator, and not in their own Rights as Purchasors, by the name of Executors. See 22 Ass. 37. Land demised to A. ad totam vitam suam; Et ulterius conces­si [...], that if the Lessee obierit infra 20 annos proxime sequent. the said Lessee potuit legare & dare praedict. tenementa alicui personae us (que) ad terminum praedict. 20 annorum, &c. and Dyer cited the Case, 16 E. 3. Quid juris clamat, 22. Land was leased to one for [Page 22] life, and if the Lessee died within the Term of 20 years, that his Executors or Assigns should have it until the end of the said 20 years, and a Quid juris clamat was brought against the Lessee for life without any mention of any other Estate. To which the De­fendant pleaded the special matter, and demanded Iudgment upon that Fine, if he should be driven to Attorn, where he is supposed Te­nant for life only; And it is there said, That that special matter is but a Protestation to save the Term to his Executors. And upon such a Fine, such Tenant hath been driven to Attorn: And by Dyer, If the Lessee doth not make such protestation, yet his special interest is not impaired by it; yet it is but reason that it be entred for the more manifestation of it. 32 E. 3. Quid juris clamat, 5. A Lease to W. for life, and 20 years over, he may grant the same Term or any part of it: And he cited the Case between Parker and Gravenor, 3. & 4 Mar. Dyer, 150. Where a Lease for life was made, and by the Indenture of Lease Provisum fuit, That if the Lessee died with­in the Term of 60 years, that then his Executors and Assigns should have and enjoy the said Lands pro termino totidem annorum, which did amount to the number of 60 years, to be accompted from the date of the Indenture. And it was the Opinion of the Court, That that was not any Lease: But they all agreed, That a Lease for years in remainder might be upon a Lease for life in the same person. See 40 E. 3. A Lease was made for life, and half a year after; the Lessee died, and Waste is brought against the Executors, sup­posing that the Testator held for years; and the Writ was holden good: And there it is said by Kirton, That the Executors could not have that Term, unless it were in the Testator; and there the Term is not limited to any person. And see 11 H. 4. 187. Annuity granted to one for life, and 20 years after. And 50 E. Ass. 1. A Lease for life, and 3 years over to his Executors. And then here in our Case, This Vse being limited in Order, according to the Rules of the Common Law, shall vest in the Grantor to give or forfeit, and then by the Attainder it was forfeited to Queen Mary: and if so, then the Plaintiff shall be barred. Harper, Iustice, to the contrary; And that the Interest in the Remainder for years limi­ted to the Executors and Assigns of the Grantor is in abeyance, and not in the Grantor, and then it cannot be forfeited: But if this Vse had been limited to the Grantor himself, then all had been in him to give, &c. But here in our Case, the Remainder for years is limited and appointed to the Executors, &c. Also, Vses shall not be ruled in such manner as Lands; but the Law shall rule the possession obtained by use in another manner, than the possession obtained by the Order of the Common Law: As in the Case of Amy Townsend, Plow. Com. 111, 112. Where the Husband sei­sed in the right of his Wife, made a Feoffment in Fee to the use of himself and his Wife for life, with divers remainders over; Now is not the Wife remitted, as she should be by Conveyance at Com­mon La: as if the Husband discontinueth the Land in the right [Page 23] of his Wife, and the Discontinuee giveth the Lands to the Husband and Wife, and to a third person, she is remitted to the whole, and the third person hath not any thing. Dyer, to the same intent; And here we ought to intend and consider, That it was the pur­pose of Cranmer, to advance his Executors with this Term unto their own use and benefit, and not to leave the same in himself. And I do conceive, That the use is in abeyance until the Executors are made, or an Assignee appointed; for he may make an Assignee who shall have the Term: For Assignee may be made two ways, 1 By grant of an Estate which is in the Grantor before; 2 A person nominated and appointed by another to take any thing, &c. And it shall be also intended, That Cranmer was purposed to make other Provision to leave to his Executors Assets to perform his Will; and not that that Term should be applyed to that purpose, for then he would have shewed it in the Conveyance by words; scil. as to pay his Legacies, and perform his last Will: And the Cases put by my Brother Manwood, do not go to the Point; For I agree, Where Lands are given to one for life, the remainder for years, and doth not say to whom, it cannot be intended to any other but to the Lessee for life; or otherwise it shall be void. And also where Land is given to one for life, and for two years after to his Execu­tors or Assigns, or Heirs, all is in the Lessee, for all is as one gift: But where it is given to one for life, and after his death, the re­mainder to his Executors, I do not see any reason that that re­mainder should be any Assets in the hands of the Executors; Or that if the Lessee dieth Intestate, that his Administrator should have it; and therefore the Executors shall have the same as a pur­chase: But Cranmer might have given the same, or appointed one in the mean time to receive it, and in the mean time it shall be in abeyance. Also if Lands be Leased to B. for life, the remain­der for years to his Heirs, the same remainder for years is in abey­ance until the death of the Lessee, and then it shall vest in the Heir as a Purchasor, and as a Chattel, and shall go to the Executor of the Heir, &c. and the Tenant for life cannot meddle with it, for it is not in him: Also, Vses shall not be raised as Lands; i.e at the Common Law, but shall be raised by the Statute, and as Vses were raised in the Chancery before the Statute. And therefore if this Conveyance had been before the Statute, he could not have compelled the Feoffees to dispose of that Interest at his pleasure, &c. And then Cranmer the Son shall have the Land by force of the entail limited unto him; For the Estate for years is gone, because no assignment of it is made, nor any Executors who can take it, and the Estate for life is determined by the death of Cranmer; and the Feoffee to an Vse cannot have it, for there is not any Conside­ration whereof he should have any Vse; for by the Limitation, no­thing was left in the Feoffee: And so I conceive, that the Plaintiff shall recover. See the Case, 14 Eliz. in Dyer.

L. Mich. 15 Eliz. In the Common Pleas. Tottenham and Bedingfields Case.

Owen Rep. 35, 83.IN an Accompt by Tottenham against Bedingfield, who pleaded, That he never was his Bailiff to render accompt, the Case was, That the Plaintiff was possessed of a Parsonage for Term of years, and the Defendant not having any Interest, nor claiming any Title in them, took the Tythes being set forth, and severed from the 9 parts, and carried them away, and sold them. Vpon which, the Plaintiff brought an Action of Accompt: And by Man­wood, Iustice, the Action doth not lie, for here is not any privity; for wrongs are always done without privity: And yet I do agree, That if one doth receive my Rents, I may implead him in a Writ of Accompt, and then by the bringing of my Action there is pri­vity: and although he hath received my Rent, yet he hath not done any wrong to me; for that it is not my Mony until it be paid unto me, or unto another for my use, and by my Commandment: and therefore notwithstanding such his Receipt, I may resort to the Tenant of the Land, who ought to pay unto me the said Rent, and compel him to pay it to me again; and so in such case, where no wrong is done unto me,Hob. 32 [...]. I may make a privity by my consent to have a Writ of Accompt: But if one disseiseth me of my Land, and taketh the profits thereof, upon that no Action of Accompt lieth; for it is meerly a wrong. And in the principal case, so soon as the Tythes were severed by the Parishioners, there they were pre­sently in the Plaintiff, and therefore the Defendant by the taking of them, was a wrong doer, and no Action of Accompt for the same lieth against him. And upon the like reason was the Case of Monox of London lately adjudged; which was, That one devised Land to another,1 Len. 266. and died; and the Devisee entred, and held the Land devised for the space of 20 years; and afterwards for a certain cause, the Devise was adjudged void, and for that he to whom the Land descended, brought an Action of Accompt against the Devisee: And it was adjudged, That the Action did not lie. Harper, con­trary; For here the Plaintiff may charge the Defendant as his Proctor, and it shall be no Plea for the Defendant to say, That he was not his Proctor, no more than in an Accompt against one who holdeth as Gardian in Socage, it is no plea for him to say, that he is not Prochein Amy to the Plaintiff. Dyer, The Action doth not lie; If an Accompt be brought against one as Receiver, he ought to be charged with the Receipt of the Mony: and an Accompt doth not lie, where the party pretends to be Owner, as against an Aba­ter or Disseisor; but if one claimeth as Bailiff, he shall be charged, and so it is of Gardian in Socage.Latch 8. And it was agreed, That if a Disseisor assign another to receive the Rents, that the Disseisee cannot have an Accompt against such a Receivor.

LI. 15 Eliz. In the Court of Wards.

NOte: That this Case was ruled in the Court of Wards; That where Tenant of the King, of Lands holden by Knights Service in chief, made a Feoffment in Fee of the same Lands to the use of himself for life, and afterwards to the use of his younger Son in tail, the remainder to the right Heirs of the Feoffor, and died, his eldest Son within age, That the Queen should have the Wardship of his body, and of the third part of the Land; and when the eldest Son comes of full age, that the younger Son should sue Livery, and pay▪ Primer Seisin according to the rate and value of the whole Land, viz. of the third part as in possession, and of the two parts as a Reversioner: For the remainder to the right Heirs of the Feoffee, is in truth a Reversion; for the Fee simple was never out of him, because there is not any consideration as to that, nor any Vse expressed. And because Livery shall not be sued by par­cels, the younger Son shall not be suffered to sue Livery of the third part presently, and respite the residue as to the two parts in Re­version, until the Reversion fall; but he shall sue Livery presently as well of the two parts in reversion, as of the third part in posses­sion: and if the eldest Son had been of full age at the time of the death of his Father, the younger Son should pay Primer Seisin as to the third part, the whole value of it for one year as in possession; and as to the two parts, the moiety of the value of a year, as of a Reversion.

LII. Oliver Breers Case. 15 Eliz. In the Court of Wards.

OLiver Breer, who was Tenant in Chief by Knights Ser­vice, made a Feoffment in Fee to the use of himself for life, and afterwards to the use of A. his eldest Son and Heir for life, and after to the use of the first begotten Son of the said A. in tail; and afterwards to the use of the second Son of the said A. &c. and for default of such issue, to the use of the right Heirs of the Feoffor; Oliver died, the said A. his Son being of full age; It was holden by the Council of the Court of Wards, That he should pay for his first Primer Seisin, a third part as in possession; and two parts as a reversion. See the Case before.

LIII. Mich. 15 Eliz. In the Kings Bench.

NOte: 1 Roll. 626▪ This Case was moved to the Iustices in the Court of the Kings Bench: A Man had Issue two Daughters by divers Women; and being seised of Lands in Fee, he made his Will, and by the same Devised, That his Wife should have the moyety of his [Page 26] Lands for years, and that his eldest Daughter at the day of her Marriage, should enter into the other moyety; his eldest Daughter married and died without Issue: And the Question was, Whether her Vncle should have that moyety or the fourth part of the whole Land. Catline conceived, and said, That when the Devise which was made to the eldest Daughter, that she might enter after cer­tain years, is not the Inheritance in her presently, and the other words void? So he said here, That it is not a purchase in the eldest Daughter, but both the Daughters should enter in Common as one Heir to their Father, until the Marriage; and then the Inheri­tance which was once settled in them, should not be removed. Southcote, Iustice, said, There are no words of Limitation of any Estate that the Daughter should have after the Marriage, and there­fore the Devise was void; and if he had limited, that the Daughter after Marriage should have it for life, the Fee-simple is vested in her before, and then she cannot have it for life. And he said, That if a Lease be made to the eldest Daughter for years by the Father, and afterwards the Land descends to her and her Sister, as unto one moyety of the Land, the Lease is determined, but not as to the other moyety. Whiddon, Iustice, Where a Devise is for the be­nefit of a stranger, there the Heir shall take by the Devise, and not by descent. As if a Lease be made for years, the remainder to the Heir, there the Heir shall take the Land by the Devise. Catline, She hath it be Descent, and not by the Devise. But if he deviseth the Land to the Heir in tail, with this, That he shall pay a certain sum of Mony unto another, there the Heir shall take by the De­vise, for the benefit which may accrue to the stranger, and not by descent, for otherwise the Will should not be performed: But where the Estate of the Heir is altered by the Will, nor any benefit doth accrue unto another after that the Lands come to the hands of the Heir; in that case he shall have the Land by descent: And so here in this case for as much as the Devise is, That the Daughter shall enter, they both being but one Heir to their Father, shall have the Land by descent; and the words of the Will, That he shall en­ter into the moiety, shall be void; as, if the Devise had been to the Heir for life, there the same is void, because the Fee-simple which descendeth to her, doth drown the particular estate for life. And therefore in the principal case here, the Vncle shall have but the moyety of the moyety which is so devised, and the other Sister shall have the other moyety of the Land; and as to that moyety which is devised to the Wife for years, the same shall enure according to the Common Law, that the Vncle shall have the moyety of that; and the other Sister the other moyety.

LIV. Mich. 15 Eliz. In the Common Pleas.

THis Case was moved to the Court by Lovelace, Serjeant; A Man Covenants with another to make and execute an estate of such Lands as should descend to him from his Father and Grand­father by a certain day, the same Lands to be of the clear yearly value of 40 Marks: And the Question which he moved to the Iu­stices, was, That if the party had more Lands which came to him from his Grandfather and Father, than did amount to the yearly value of 40 Marks, If he was to make assurance of all the Lands, or of so much thereof only as amounted to the value of 40 Marks? And Manwood, Iustice, conceived, That he should make assurance of Lands only which were of the value of 40 Marks per annum: For the words (such which) do not go so largely as if he had said, All my Lands which shall descend, or to me be descended; for then the yearly value were but a demonstration, and all his Lands ought to be assured. But here the Intent of the Indenture can­not be taken otherwise, than to have but an Assurance of so much Land; as if he had said, Of such Lands and Tenements as were my Grandfathers, and Fathers, amounting to 40 Marks by the year: for there by those words, he shall have but 40 Marks by the year. Lovelace, It hath been taken, That where the Queen made a Lease of all her Lands in such a Town, amounting to the yearly value of 40 l. that that valuation is not a demonstration, and shall not abridge the Grant precedent, to have all in the Town which should be of the value of 40 l. but her Grant shall be taken and con­strued according to the words precedent. Manwood, The Com­mon case of assurance upon a settlement of Marriage is, That he shall stand seised of so much of his Land as shall be of the clear year­ly value of 40 Marks; If the marriage take effect, The Question hath been, If they to whom the assurance is made, may enter into any part of the Land at their election, and take that which is the best Land, to the value of 40 Marks per annum, and hold the same in severalty, or if they shall be only Tenants in Common with the other? And also it hath been a Question, Whether they may choose one Acre in one place, and another Acre in another place, and so through the whole Land where they please, because the Grant shall be taken strong against him that granteth: But I conceive, that it should be a hard case to make such Election of Acres. But it was said by some Serjeant at the Bar, That if a Man grant­eth to another to take 20 Trees in his Lands, that the Grantee may cut down one Tree in one place, and another in another place: Manwood agreed that Case: but of the other Case, the Court doubted of it. The principal case was adjourned.

LV. Vernon and Vernons Case. Mich. 15 Eliz. In the Common Pleas.

NOte; That in the Case of Dower between Vernon and Ver­non, and the Argument of it, the Plaintiff would have been Nonsuit. Dyer, Iustice, said, It should be an ill President, if a Nonsuit should be after Demurrer: And therefore he said, That for his part he would not agree, that any Nonsuit should be upon it; but he said, he would be advised, and take better Consideration of it, If the Nonsuit should be awarded, or not. And afterwards at another day, Manwood and Dyer took a difference, where the Nonsuit is the same Term, and where in another Term; and said, It is like unto the Case, where a Man would Wage his Law, and is present ready to do it, that there the Plaintiff cannot be Nonsuit, because it is in the same Term, but he shall be barred: But in another Term afterwards he might be Nonsuit, if the De­fendant take day over to wage his Law until another Term; and so they said it should be in this case.

LVI. Sir Peter Philpots Case. Mich. 15 Eliz. In the Common Pleas.

THis Case was moved by Meade, Serjeant to the Iustices of the Court of Common Pleas, viz. That Sir Peter Philpot Knight, seised in Fee of divers Mannors and Lands, suffered a Recovery, and made a Feoffment thereof unto divers persons, To the use of himself for life, the remainder to his right Heirs: And after the Statute of 32 H. 8. of Wills, He devised all his said Mannors and Land to his Wife for life; and it was expressed in his Will, That he could not devise all his Lands, by reason of the Statute of 32 H. 8. that his Will was, That his Wife should have so much which might be devised by the Laws of the Land: And there was another Clause in the said Will, That his Feoffees should stand seised of the same Mannors and Lands after the death of his Wife, To the use of one Hurlock and others for years, for the payment of his Debts, and for the raising of Portions for the prefer­ment of his Daughters in Marriage: And further by his said Will he willed, That if the Law would not bear it, That Hurlock and the others should have the Interest, Then he willed that his Son should have all his Mannors and Lands, and should pay his Debts, and should give certain sums of Monies for the Marriage Por­tions of his Daughters; And the Question which was moved to the Court, was, Whether the first part of his Will, That is to say, That Hurlock and the others should have his Lands, &c. were void, or not, by the later words of his Will? Dyer, Iustice, said, That the last words of the Will did well expound the meaning of [Page 29] the first words, and that the Will should be performed as it might be: And afterwards Harper said, That upon this matter, Hurlock and the others had had a Decree in the Court of Wards, to have the whole Lands during the years, and not two parts of the Lands only. Dyer, Iustice, said, That the Will of Sir Tho. Umpton, which was made mean between the Statutes of 32 H. 8. and 34 H. 8. and which is excepted by the same Statute, that it should not be construed in other form than according to the first Statute was, Of all his Lands. And upon a Demurrer argued, It was adjudged, That the Will was good of two parts, although that by the Will it was not divided: For where a Man hath a War­rant to do a thing, and he doth it, and more, so as he exceeds his Warrant, yet it is good for that part for which it is warranted; and void for the rest: As if a Man makes a Warrant of Attorny to make Livery and Seisin of the Mannor of Dale, and he makes Livery of the Mannors of Dale and Sale; it is good for the Man­nor of Dale, and void for the Mannor of Sale. The Case was, in a Writ of Partition: And afterwards the Record was removed by a Writ of Error, supposing that this Court had Erred; and the Iudgment was affirmed by three of the Iustices of the Kings Bench. But because there was a Discontinuance in the Record, which was erronious, for that the first Iudgment was reversed, but not for any other cause. And such was the meaning and intent of the Statute of 32 H. 8. before the making of the Statute of 34 H. 8. of Explanati­on of Wills. And therefore here in the principal Case, it was holden, That the Will was good for two parts, both to the Wife, and also to Hurlock and the others. And it was holden, That by the Intent of the Will, that the Son was to pay such sums of Monies a Hur­lock was to have paid, so as the Will was not for the advantage of the Heir, but to be construed according to the meaning of Philpot, That if Hurlock could not have the Lands, &c. that then the Son should have them, but with such charge as aforesaid; and it was no Intent to subvert the first part of the Will, if the same might stand with the Law. And so it was adjudged.

LVII. Mich. 15 Eliz. In the Common Pleas.

THe Case was this; A Man makes a Lease for 30 years;More Rep. 94 Post. 55. Winch. Rep. 5. and bargains and sells the Woods in and upon the Premisses to the Lessee, and that he might carry them off the Lands during the time of 30 years: The Lessee cut down all the Woods; and after­wards other Wood grew up from the Stocks, and the Lessee cut them also within the Term; and the Lessor brought an Action of Waste for cutting of the new Wood. And it was moved by Meade, Hob. Rep. 132. Serjeant, If the Action of Waste would lie, or not? Harper, Iustice, Is the Bargain, de bosco & subbosco, growing in and upon the Pre­misses? Meade, No; but all his Woods in and upon the Premisses. Harper, The Grant is in the present tense in praesenti; so as he can­not [Page 30] have that which shall grow there, after: And if he would grant all his Woods which should grow in time to come, the Grant should not be good, because it is not of a thing in esse. And if a Man will grant all his Wood growing upon Black-Acre, and there be then no Wood, he cannot have any thing, although that afterwards, Woods grow there; and if his meaning had been, That he should have the Wood which should there after grow, he would have expressed the same in another form. Mounson, If a Man grants all his Hay grow­ing upon his Land;Hob. 132. shall he have that which is growing there, after? No truly; And if he grant all the Wooll which is growing upon his Sheep, shall he have more than that which groweth this year? Meade, No truly: But if he had granted all the Wooll growing upon the Sheep for 20 years, then the same is like to our case; for he hath grant­ed, that he may carry the Wooll during the 30 years. Harper, The same is but a Liberty to fell the Trees which where growing at the time of the Sale, and to carry them when he pleaseth, and not to give other Trees or Wood, which should there after grow.

LVIII. Mich. 15 Eliz. In the Common Pleas.

LOvelace, Serjeant, moved this Case to the Court, That an Assise was brought of the Office of Registership in the County of Devon: And he shewed, How that the Bishop of Exeter granted the Office, and shewed the name of the Bishop: And that after William Alley Bishop there, granted the same Office after the death of the first Grantee to the Plaintiff: And further he shewed, That the Bishop might grant the Office ad Idoneam personam: And because he doth not say in his Plaint, That the person to whom it was granted, is idonea persona, I conceive, that the Plaint is not good; for if there be no such person which can exercise the Of­fice, he shall not have it: For that is a Condition which is annex­ed to the Office, that he be a fit person who shall take it: And the Prothonotaries of this place ought to have skill in that which ap­pertaineth to their Office; For if such an Office should be given to a Courtier who hath not skill in that which appertaineth to the Office, nor knowledge how to execute, he shall not have it. Also he said, That he hath not shewed, that the first Bishop is dead, or that he hath resigned; or whether that he be deprived; and there­fore it shall be intended, that he continueth, unless the contrary be shewed: And then the Grant made by Alley to the Plaintiff, can­not be good. And for these causes, and for others, he prayed to know the Opinion of the Court. Dyer, Iustice, The matter is not before us; and wherefore should we give our Opinions to serve the fancy of every person, and to resolve the doubts of every Court? But if the matter laid come before by Adjournment for difficulty, because the Iustices of Assise are of divers Opinions, or that they doubted of any thing upon such difficulty and adjournment, we use to shew our Opinions, and to take some pains to search our Books [Page 31] to Resolve the doubts; but when we have not any thing before us; but are moved for the pleasure of the parties, What Resolutions shall we make by speaking at random? Manwood, As to the first Exception, I, nor my Brother Jeffery, do not doubt of it, but that the Plaint was good, notwithstanding that it is not shewed, that he was idonea persona, for the Law shall intend him so to be, until the contrary he shewed. And so it is of a grant of an Annuity, as long as he se bene gesserit, the Law shall intend that he carrieth himself well, until the contrary be shewed. But as to the other Point, That he doth not shew the death of the first Bishop, my Brother Jeffery doubted of it, but I make no doubt of it, for that is but a Recital, and the Plaintiff makes his title but from Bishop Alley, and therefore that is not material, nor parcel of his Plaint, whether the predecessor of Alley be alive, or not; for he doth not derive any Title from him, but from Alley. Dyer, Can a Bishop grant an Office in Reversion, without title of Prescription, that they have used so to do time out of mind? And here no Prescription is laid, that the Bishop might so do. And then, as I conceive, the Reversion of the Office cannot be granted, for there is not any Reversion of it: and it is not like unto an Advowson, which may be granted, that the Grantee may present when it shall be next void. And as I conceive, No Reversion of any Office can be granted, if not by the King who hath a special Prerogative; For he reciting, how that such an one hath such an Office for life, he may grant that such a person shall have the same Office after the death of the first Grantee. And so the Queen may grant the Reversion of such an Office; as if she recite, that such an one is Keeper of such a Park, there she may grant the Keepership of it after the death of another: But if a Common person will grant the Stewardship of his Courts after the death of such a person as is now Steward, or the Reversion of it, the same is not good: For of Offices, there is not any Fee, or Reversion, But a Nomination which the party hath to name what person he pleaseth when the same shall become void. Manwood, It is the Order in the Arches, and in the Prerogative Court, and of all the Courts of Pauls, to grant the Offices in Reversion, as in the Case of Doctor Drury and others, who have the Reversion of every Office which doth belong to the Spiritual Courts. Dyer, I do not care, nor regard what they do, but what they ought to do; and I do not respect the person of any one in relating the Law; But it may be, that by words of Covenant, such a Covenant may be good: And of late time here a Case hath been adjudged, That where one pre­scribed, that such an one might grant an Office, cuicun (que) personae idoneae voluerit, and the Grant was made to two, and because the prescription did not warrant this manner of grant, it was adjudged void; for when the prescription is to grant alicui personae, and not quibuscun (que) personis, by that, he cannot grant it but to one person, and not unto divers, because the prescription doth not extend so far. Manwood, I conceive there is a difference betwixt such per­sons [Page 32] who have Offices for life, as the Admiral of England, the Lord Treasurer, the Iustices of the two Benches, which have Offices incident to their Courts, they cannot grant any of those Offices in Reversion; But a Bishop hath a Fee, and therefore the Cases are not alike. Dyer, he hath not prescribed in the person of the Bishop here; but he hath said, That the Custom is, That the Bishop may grant the said Office, whereas in truth, if there were a pre­scription, he ought to prescribe, That the Bishop for the time be­ing might grant the said Office in possession or in reversion: And so as I conceive here, no Office shall be granted in reversion, un­less by prescription; which ought to be alledged. And in the time of this Queen, an Office of this Court was granted to Fry and his Son by the King; and the Patent was shewed here in Court, and rejected: and it was said, there was no place in Court for two to sit there, and the Office might be exercised as well by one, as by two; and therefore the Patent was disallowed. And although that Offices are granted to two, as now in the Kings Bench of late time, there is not any President to warrant the same; and therefore, as I conceive, such a Grant is not good, nor warranted by the Law; for I do not regard in this Case, against what persons I speak. Mounson, In the Chancery, a Patent was granted to Bagot and Swirenden, of an Office in the Chancery by King Henry the 6th, and in 9 E. 4. it is is disputed, Whether the Grant were good, or not, &c.

LIX. Mich. Eliz. In the Kings Bench.

THe Case was; A Man Mortgageth his Lands, to pay to the Mortgagee his Heirs, Executors, or Assigns, a certain sum of Mony at a day certain: The Mortgagee dieth, and maketh his Heir within age his Executor; and the Mortgagor pays the Mo­ny at the day to the Heir: It was holden, The same shall be Assets in the hands of the Heir as Executor, and that he hath not the Mony as Heir, and he shall be charged with it, within age.

LX. Mich. 15 Eliz. In the Common Pleas.

THe Case was this; A Man had made a Lease for 40 years to one by Indenture, if the Lessee should so long live; and afterwards by another Deed he demised the same Lands and Tenements to the same Lessee, To have to his Executors and Assigns for 40 years after the expiration of the first Lease. And Lovelace, Serjeant, demanded the Opinion of the Court, (the Lord Dyer being then in the Star-Chamber) Whether in this Case, the Lessee should have the Interest in the second Lease, or his Exe­cutors; or whether it was a void Lease? Harper, Iustice, said, That in every Lease there are 3 things incident to make it good, 1. That there be a Lessor to make the Lease. 2. That there be a Lessee to take the Lease. And, 3. That there be a thing which should be [Page 33] which should be let: And then he said, That here, although that there be a Lessor, and a thing which should be leased, yet here there was not any Lessee: For Executors are not until after the death of the Testator: But he said, That if a Lease be made for years, or for life, and that the Executors shall have the same for certain years after his death, the same is good; for there is an Interest of the Term. And if a Man maketh a Lease to begin at the month of Easter, his Executors may have this Term, because the same was an Interest of a Term in the Lessee, and the Term shall be executed at Easter: But here in this case, there is no person to take it, and therefore he conceived, That the Lease was void. Mounson, Iustice, The Case is as it is recited: And he said, That the Premisses of a Deed, is to limit the person who shall have the Lease, and the Habendum shall not declare the person who shall have it, or the Lease, but to declare the Estate which shall be in the Lease; and it is but a limitation of the Estate: and if the Premisses do not limit the person who shall have it, the Habendum shall not give any thing to the person, unless it be expressed in the Premisses what person shall have it: and therefore when he saith, Habendum to his Executors and Assigns, these words (Executors and Assigns) are void: But when a Man makes a Lease to one, Habendum to his Executors and Assigns, the same is not void; for if Livery be made, his Heir shall take it after his death. Harper, By the Lease of the same Land by a new Deed, as the Case is here, nothing shall pass without an Habendum: And if a Lease be made to the Lessee, Habendum to his Executors, he himself hath no Estate; and when no Estate is limited, the per­son in the Premisses gains not any thing, and without the Haben­dum, he cannot have any thing. Lovelace, If I may declare my Opinion, This new Lease shall be a Lease in possession as a Con­firmation of the first Lease, and shall be taken to be a Lease for life, and the Habendum shall be void; and therefore he prayed the Opi­nion of Manwood, Iustice, therein: Who said, That in every Lease there are 3 Principals, as he had said, of Lessor, Lessee, and thing Let: And by the Premisses, the Lessor and Lessee are ex­pressed; and by the Habendum, the Interest which the Lessee shall have, ought to be set forth; and if no Habendum be in the Deed to express any certainty of time, the Lessee by the same shall be Te­nant of your Opinion, Brother Lovelace, That the same shall be a Lease for life, unless that in the second Deed the words had been, That he Leased and Granted; by which word, Grant, it might enure and amount to a Lease for life: but if the Deed had been, Demise and Grant, that cannot be intended for the life of the Lessee; And as I have said before, by apt words it might enure to a Confir­mation, and make it a Lease for life; but by the Premisses it is not so, and by this Deed it is not expressed, that the Lessee shall take a Freehold; for by the Habendum, his mind appeareth to be otherwise by agreement betwixt the parties, that his Executors and Assigns [Page 34] should have it for a certain time after his death, and that he himself would not have it, for he hath sufficiently provided for himself, to have if for 40 years, if he liveth so long, although it cannot be intended, that he should live beyond the Term which he hath, so as it cannot be taken to be the meaning of the parties, that he should have it as a Lease for life: and when by the Premisses of the Deed, the parties are not named, the Habendum shall never bring in a strange person: As, where a Lease is made to the Husband, Habendum to the Wife, the Habendum to her is a void, because it shall not introduce one who is a stranger to the Premisses of the Deed. And as my Brother Moun­son hath said, The Office of the Premisses of a Deed is to limit the persons who shall have it, and the Office of the Habendum is to limit the Estate of the thing which is granted; and therefore when the Habendum is to such a person as was not named in the Premisses of the Deed, it is but a Nugation: As if he had Leased to J.S. Ha­bendum to the Moon for certain years, there the Habendum to that thing is a Nugation, and void; and therefore then if the words be in the Premisses, that he Leaseth to J.S. for 20 years, and doth not say, that he shall have it for 20 years, it shall be intended, that the person named in the Premisses shall have it, for the Habendum waits upon the Grant before; and when he gives an Estate in the Habendum without limiting of the person in it, then the person named in the Premisses shall have it; and then when he names a strange person who was not named before in the Premisses, or which hath no Ca­pacity, as the Moon, or such like who are not in rerum natura, as his Executors of the Lessee, or his Assigns, these persons or things named in the Habendum, are but Nugations, and void; and then it is like unto the Case where no person is limited in the Haben­dum: And where apt words are, there the Law shall construe them strong against the Grantor; and therefore the Law couples the Habendum and the Premisses together, that the intent of the par­ties may (if by any means it may) have a reasonable Construction. And therefore if a Man maketh a Lease to two, Habendum to one of them and a third person, there as to the third person he gets nothing by the Habendum, because he was not named in the Pre­misses, and therefore the naming him in the Habendum is but a Nugation. And so here, the naming of the Executors and Assigns by the Habendum, is but a Nugation, and so there is no person named in it. But I conceive, that the Habendum, when the years are expressed, and the Estate limited by it, shall have reference to the person who is named in the Premisses of the Deed, and so the Lease shall be good to him to begin after the first Term expired. Harper, It appeareth that it was the meaning of the parties, that he himself would not have any thing, but that his Will was, That his Executors should have it, and the Law shall frame his intent and meaning, and shall not subject the Law to his intent; and when he doth not so, but overthwarts the Law and frames such an Instrument, the Law shall be first served, and not their meanings, [Page 35] when the same doth not agree with the Law. And therefore as to the Case which my Brother Manwood hath put, Where no person is named in the Habendum, by Construction of Law, he who is na­med in the Premisses shall have it: But when the Habendum makes express mention of his intent what person shall have it, and another than was named in the Premisses, then if those cannot have it, the Estate limited shall not be carried over to him who was named in the Premisses. And as to the Case put, where a Lease is made to two, Habendum to one of them, and a third person, there I well agree, That as to the third person it is but a Nugation; and the other two who are named with him in the Habendum, and have a Capacity to take it, shall have it, although the other getteth no­thing; but that is not like to the Case at Bar, for no person is named there. Manwood, If a Lease be made made to J.S. except Green-Close, to J.D. who is a stranger, the Exception is good, and J.D. shall have it. The Principal Case was Adjourned.

LXI. The Lord Windsors Case. Mich. 15 Eliz. In the Kings Bench.

UPon an Evidence given to a Iury in the Kings Bench, in an Ejectione Firmae, the Case appeared to be thus; That Sir Roger Lewknor, Knight, being seised in Fee of the Mannor of South Myms, made an Indenture, Anno 11. H. 8. by which Inden­ture, he Leased the said Mannor to 20 persons, to the use of An­drew Windsor, afterwards Lord Windsor, and Henry his Son, and the Survivor of them, as long as any of the said persons named in the said Indenture should live: And further Covenanted by the same Indenture, To stand seised of the said Mannor, To the use of the said Andrew and Henry, and the Survivor of them, during the lives of any of the said Feoffees named in the same Indenture; which Deed was made without Livery and Seisin; and reserved upon it an yearly Rent: and afterwards the Son died. And in 22 H. 8. A Fine was levied by a stranger upon a Release to Andrew Lord Windsor; And afterwards, 34 of Henry 8 Andrew Lord Windsor made a Lease to one for years, and died; and made William and Edmond his Sons his Executors: And afterwards William his eldest Son being Lord Windsor, 2 & 3 Phil. & Mary, made a Lease of the same Land unto another, to begin after the first Lease ended: Which William died, and the Lord Windsor that now is, accepted the Rent, and of late time agreed with one Vaughan, who had mar­ried the Heir of Sir Roger Lewknor, for the Reversion in Fee; and afterwards the Lease made by Andrew Lord Windsor, 34 H. 8. ended in the 4th year of the Reign of the Queen that now is; Whereupon, the second Lessee, that is to say, the Lessee of Wil­liam Lord Windsor, entred; and being ousted, he brought the Ejectione firmae. And then, and yet one of the 20 Feoffees of Sir Roger Lewknor is alive; so as the Estate of Cestuy que Vie, is [Page 36] not as yet determined. And now the Question upon the first part of the Evidence is, If this later Lease made by William Lord Windsor, be a good Lease or not? And who shall be said Occupant? For when the Lord Andrew died, then the Lessee (as Catline said) shall not be said in otherwise than according to his Lease, when his occupation by Lease was lawful before: And he who shall be said Occupant, shall have a Freehold; and if he should be Occupant, he should be in by a new title. Then we are to see, If the Exe­cutors of the Lord which have the Rent, and to whom the same is paid by the Lessee, shall be said Occupant? And he conceived, That they should not, although that they enter, unless they claim the Freehold at the time of their entry; for if they enter general­ly, it shall be intended according to the Will, as Executors; and if he had granted his Estate to another, there after his death, the Grantee shall be said to be in by reason of his Grant, and not as Occupant; And so if he would devise his Estate, the Devisee shall be in by reason of the Devise, and not as Occupant; Which Case of Devise, Southcote denyed, That he should not be in by reason of the Devise, when his Estate determines with his death: But if the Devisee entreth by force of the Devise: he shall be in as an Occupant. And also Southcote denyed that which had been said, That the Lessee for years who holdeth the Lands after the death of Andrew Lord Windsor, should not be an Occupant: For, as he said, the Lessee being in possession after the death of the Lord Andrew, should be said Occupant, and no other; for the Executors of the Lord could not be Occupant by the having of the Rent, because they had not the possession of the Land; for none shall be Occupant, but he who is in possession. Whiddon said, That if the first Lease made by Andrew Lord Windsor, was now in esse, and that an Ejectione Firmae was brought upon that, that the Lessee ought to aver, That some of the Feoffees for whose lives, &c. were then living. Southcote, If a Praecipe quod reddat shall be brought, against whom shall it be brought, against him in the Reversion, or against him in possession? And if it shall be brought against the Tenant in possession, then he ought to have the Freehold; for it cannot be brought, but against one who hath a Freehold at the least: And then if the Lord William Windsor had nothing in the Land, then how could he make this Lease to the Plaintiff that now is, when the first Lessee continueth Occupant after the death of the Lord Andrew, during the life of Cestuy que Vye? And as to the Fine, the Question did further arise, If the Lord Andrew Windsor should have a Feesimple by that Fine? For being levied, (as Catline said) It cannot be to the first Vses, because a Fine upon a Release, cannot be intended to the use of any other but to him to whom it is levied, unless an use be expressed in the Fine, or by another Deed: And upon a Fine levied upon a Release made unto Tenant life by a stranger, the same is not a forfeiture of his Estate; But if Tenant for life taketh a Fine [Page 37] Sur Conusans de droit come ceo, &c. the same is a forfeiture. And although a Fine levied by those who have not any thing in the Lands, be void, Yet here it is not so; and it ought to be pleaded specially, and shewed, that he had not anything in the Land at the time the Fine was levied, as Anderson said. And Catline said, That this Fine was not without good advice, for the Lord Brook and others who were learned in the Law, were of Counsel with the Lord Windsor in the levying of this Fine, so as the intent was to settle the Feesimple in himself by the Fine, and not that the first Vses should stand after that: And thereupon he put the Case of Putnam and Duncomb, which hath much Resemblance to this Case, which he argued when he was Serjeant, and held the same Opinion as he holdeth now; And therefore he said, That although the Purchase was but of late time of Vaughan and his Wife, yet the Fee was in the Lord Windsor before, and this manner of purchase was to no other end, but to discharge the Lands of Incumbrances, as appeareth by the small sum which was paid, the Land being of a great yearly value. And, as Vaughan confes­sed, he took this sum of Mony, because that his Council informed him, that the Feesimple was in the Lord Windsor before, and that otherwise he would not have sold it at such a price. And he said, That before that agreement, the Lord Windsor told him, that he had the Feesimple in himself. Whereupon Vaughan ask­ed him, Wherefore he paid the Rent? To whom the Lord Windsor answered, That he paid the same during the lives of the Feoffees, but after their deaths, he paid nothing; but not­withstanding that payment, that the Feesimple remained in him, and that his Counsel advised him to pay the Rent to the Heirs of Lewknor, who was the Wife of the said Vaughan. And Cat­line said, That if a Fine be levied upon a Release, in a Scire facias against the Conusor, he shall not plead, that the Conusor had not a­ny thing in the Land at time of the Fine levied. And he said further, That if a Disseisor be, and the Disseisee levieth a Fine upon a Re­lease, that thereby his Right is gone.

And Note; That as to the principal Case, Southcote was of Opinion, That the Fee was not gained by the Fine levied by a stranger to him who had the Vse before the Statute of 27 H. 8. and that if no Feesimple was in the Lord Windsor, at the time of the Lease made by him, that the Lease could not be good, nor the Action maintainable. And because the Court was divided in Opi­nions in both Points, Catline commanded the Iury to find a Spe­cial Verdict.

LXII. Mich. Eliz. In the Kings Bench.

NOte: That it was said by the whole Court, That if a Man delivereth Mony to another Man to buy Cattel, or to Mer­chandise with, although that the Mony be sealed up in a Bag, yet the property of the Mony is to the Bailee, and the Bailor cannot have an Action for the Mony, but only an Accompt against the Bailee, although that he never buyeth the Cattel or other things, for the Auditors upon the Accompt shall allow him the sum and such other allowances as they shall think fit. And that a stranger takes away the Mony, after the death of the Bailee, or in his life-time, the Bailor shall not have an Action against the stranger, but the Execu­tors of the Bailee, or the Bailee himself during his life; And yet if the Bailee dieth, no Action of Accompt lieth against his Executors, because the Testator had the property of the Monies. And therefore if he, who takes the Mony from the Bailee, promiseth the Bailor, to pay him the like sum of Mony as the Bailee had received of him in his life, and as should be truly proved by the Bailor; there, upon that Promise, an Action upon the Case doth not lie against him who took away the Mony, as Catline said, In an Action upon the Case brought by the Master of the Rolls, and another, who supposed, that they delivered 100 l. to one Moore, and that he is dead, and that the Mony came unto the hands of the Defendant, and that thereupon he promised to pay the like sum which might be proved that Moore had of the Plaintiffs. It was holden, That the Action upon the Case did not lie. Southcote, Iustice, said, That although the property of the Mony be changed as before, and that no Accompt lieth against a stranger; Yet when he hath the Mony, and for that cause promi­seth to pay it as before, it is reason, that an Action upon the Case should lie upon his promise, although the Law will not charge him nor the Executors upon an Accompt.

LXIII. The Lord Cromwells Case. Mich. 15 Eliz.

Dyer 321, 322. 2 Roll. 560, 561. JEffery recited, That a Replevin was brought by Franklin; The Defendants made Conusans as Bailiffs of the Lord Crom­well; because, that the said Lord was seised of the Mannor of North-Elmes; and that the Custom of the said Mannor is, That the Homagers have used to make By-Laws (when necessity shall be) within the same Mannor, and upon a pain and forfeiture, and that the Lord of the Mannor for the time being, might distrain in the Land of any for the Forfeiture. And further saith, That in Anno 6 of Ed. the 6th, the Homage then (whereof Franklin the Plaintiff was one) made By-Law, That none should put his Sheep to feed in the Pasture or Lands of the Lord upon a pain, &c. And that the said Franklin, in the 13th year of the Reign of the Lady [Page 39] the Queen that now is, had put his Sheep into the Pasture and Lands of the Lord to feed; and for that they avow the taking in the right of the Lord Cromwell, for not payment of the said For­feiture: And Jefferies of Council with the Plaintiff, said, That the Avowry, nor the Conusans were not good; For the Custom is, as they themselves have shewed, That the By-Law shall be made when necessity requireth (and without necessity a By-Law cannot be:) And it is not alledged here, That there was a necessity at the time of this By-Law made; and then if there be no necessity, they can­not make the By-Law. Also, it is not alledged, that there were any Sheep there; And when a Custom is pleaded, it shall be pleaded stricti juris. And at the Common Law, you may see divers Cases, That when a Man is to have one thing for the cause of ano­ther, that he must alledge the thing for which he must have it: As in 9 H. 6. Where an Abbot had granted to one, That he should have Common, wheresoever the Cattel of the Abbot should go; there if the Commoner will justifie or make Avowry for his Common, he must aver that the Beasts of the Abbot went then in such a place, Field, or Pasture; for if they did not go there at the time that he justi­fieth or avoweth, his Iustification or Avowry shall not be good: And there it was said by Babbington, Chief Iustice, That if a Man grants Common whensoever his Cattel shall go in such a Pa­sture, If the Grantor doth never put his Cattel into the Pasture, the Grantee shall not have Common there: and therefore he must say, That he put his Beasts into the Pasture. And in 15 H. 7. in the Case of an Annuity granted until he be promoted to a Be­nefice, in a Writ of Annuity brought, he must say, That he is not promoted, &c. And if an Obligation be made to you, to you my Lord, for Mony, when J.S. shall return from Rome; you shall not have an Action upon the Bond for not payment of the Mony, with­out alledging, that J.S. is retorned. See 33 H. 6. Hillary's Case; And before the Statute of Quia Emptores terrarum, If a Man had made a Feoffment to hold by Fealty, and the Guarding of his Castle, In an Avowry for the Castle Guard, that there was then War, and so cause of necessity; for in time of Peace he shall not be bound to Guard it. And so it appeareth, 34 H. 8. Where a Feoff­ment was made before the Statute, to hold by Fealty, and every year to marry a poor Maiden within the Mannor, if he doth avow for not marriage, he ought to alledge, that there was a poor Maid that year within the Mannor. So, if the Tenure be to repair a Bridge that is for the Common wealth, and he and all others are to have advan­tage of it, yet the Lord shall not avow for not repairing of it, with­out alledging, that the Bridge was in decay. And so when the Tenure is to Cover his Hall, he shall not Avow, without alledging, that his Hall needed Reparations. And so in the principal Case, here he ought to alledge, that there was a present necessity for making of the By-Law; for it may be, that there was not any Sheep within the Mannor when the By-Law was made, and then there was no [Page 40] cause that it should be made. And in the like manner as it hath been said of the Common Law, That certainty ought to be shewed, so shall it be by the Statute Laws. As if Tenant for life makes de­fault, if one prayeth to be received for the default of the Tenant for life, he ought to shew that he hath the Reversion, and that he bringeth his Action by reason thereof: And as it hath been said of the Com­mon Law, and Statute Law, so it shall be said of Custom; As in 44 E. 3 where the Parishioners prescribe to make By-Laws, and that they made such an Ordinance, That for every Acre of Land, or for every Beast, every one should pay for the Reparations of the Church, &c. there it may be said in Avowry, that the Church wanted Repara­tion. And so where a Tax and Levy is to make a Wall against the See; there if the party will justifie the levying of the Tax or Le­vy, he must say, That there was need of it, otherwise the same can­not be levied: But as to the ability of a person, he shall be enabled by Intendment. As if an Obligation be made by a Man or a Wo­man, in an Action brought upon the Bond, he shall not be compel­led to say, That the Man was of full age, or that the Woman was a single Woman, for that shall be intended, until the contrary be shewed: But by Statute Law, if a Man pleads a Grant, it shall be otherwise. As upon the Statute of 1 R. 3. If he plead a Feoff­ment or a Grant of Cestuy que Use, he must plead, That he was of full age, out of prison, of sound memory, and within the 4 Seas. And so where a Pardon was made in the time of King Ed. the 14th, to all, but to those who were with Queen Margaret; there, if he will take advantage of the Pardon, he must plead, That he was not with the said Queen. And if a Man plead a Feoffment of J.S. at the Common Law, it shall be good; and if he were within age, it shall be shewed on the other side: But if a Man pleadeth a Feoff­ment by Custom; and the other saith, that the Feoffor was with­in, age, and the Plaintiff replyeth, That an Enfant by the Custom may make a Feoffment; the same is not good, but a Departure: for he ought to have shewed that at the beginning in his Declara­tion. And in 37 H. 6. Where a Man pleaded a Devise, and it was shewed, that the Devisor was within age; there the Plain­tiff need not say, that the Custom is, That an Enfant may de­vise; for that is a Departure. Another matter of the Custom which they have alledged, is, That they may make By-Laws for the better Ordering; and they have not taken averment, that this Ordinance was either better or worse: and if it be not better, then they have no cause to make the By-Law. If a Feoffment be made causa Matrimonii praeloquuti, it shall not be intended, that the Feoffment was for any other cause than Marriage: And if a Wo­man brings a Writ of Dower, and the Defendant pleads a Lease for life made by the Husband, it shall not be intended that that Lease was in allowance of her Dower according to the Statute, if it be not expresly shewed. And so, If Cestuy que Use in tail makes a Lease for life, it shall not be intended that Cestuy que Vie [Page 41] is alive, unless a special Averment be taken, That he is yet alive: And so here it doth not appear; that this is the better Order, nor that the Lands are several, or lie in Common, so as by no means or Circumstance it can appear if it be the better or not. Another cause wherefore the pleading is not sufficient, is, Because he saith, Vpon a pain of Forfeiture to the Lord for the time being; and he hath not alledged in fact, that the Lord Cromwell, who was Lord of the Mannor in Anno 6 E. 6. was Lord in the 13th year of the Reign of the Queen that now is; and, without shewing, that shall not be intended. As in 7 H. 7. A Man pleads a Feoffment, and that J.S. was seised, and did enfeoffe him, that is not good; but he ought to plead, that he being so seised, made the Feoffment; for it shall not be intended, that his seisin continued until the time of the Feoffment, without shewing of it. And so where a Man pleads, That J.S. was seised of a Reversion, granted it; he ought to plead, And that he being so seised, granted it: And so where an Attornment is pleaded; for if he was not seised at the time of the Attornment, the Attornment was not good. And so where a Man will plead a Surrender, he shall shew, that he who Surrendreth, and he to whom a Surrender is made, were seised. Quaere, If the one or the other were not seised, one of the Term, and the other of the Reversion, whether the Surrender be not good. And 31 H. 6. If a Man will plead a Lease by Feoffees to use, he shall say, And that so seised, they made the Lease. And see 6, 7, 10, 11 H. 7. Where Cestuy que Use makes a Feoffment, averment shall be taken, that at the time of the Lease that the Feoffees were seised to the use of the Lessor. And because that here it is not shewed, nor alledged, that the Lord Cromwell is now Lord of the Mannor, it shall not be so intended: Also, for divers other causes, I conceive, that the Avowry is insufficient: For he hath shewed, that a By-Law was made, but doth not shew when it was made, nor for what time it was to continue; And it is not shewed, Whether the same were made for the better ordering of the Lands which the Lord held joyntly, or in common with others, or which he held in his own Right alone: And as to the Prescription, I conceive that the same is not good; because it is against reason, and not ex rationabili causa: For if one Man keeps the Law, and another Man breaks the Law, yet according as they have alledged this Custom to be, he may be distrained who hath not offended, and his Cattel taken for the Offence done by the Cattel of another Man; and it is against reason, that any one should be punished for the default or offence of another: But the Custom of Borough English is good; and so is the Custom of Gavelkind, because that every Son is as good a Gentleman as the eldest; and therefore those Customs stand with Reason. And so in 5 H. 7. Where a Man prescribes, That for the Pasture which the Beasts of the Tenant have taken in his Lands in the day-time; that he have the Foldage of them upon his said Lands in the Night to manure his Lands, is a good prescription, [Page 42] because the party hath for it Quid pro Quo. And so where a Man prescribes to have a Farthing of every one who passeth over his Land, the same is called Toll traverse, and is good. And so in 7 H. 4. Where a Man prescribes in Common by reason of Vici­nage, it is good; for though it cannot be of Common Right, yet because each hath Quid pro Quo, it is good. And so is the Cu­stom for Fishermen to dry their Nets upon the Banks of the Lands of other Men lying upon the Sea Coasts, because it is for the Common wealth; and every Man hath an advantage by it, but if a Man should prescribe to Fowle there upon the Lands of another, that were not good. Meade, contrary, That case is, as it hath been put; and divers Cases of the Common Law, Custom, and Statute Laws, have been shewed: And by common Intendment, it is intended, that need doth require the making of the By-Law; for otherwise, they would not have made it; and there needs not any averment, that there was need of it, for that shall be taken by intendment: As 19 E. 4. A Man counts of the Grant of the next Avoydance, and the Count is good, without shewing, that that was the next Avoydance, but yet it would have been better, if it had been expressed. And 21 H. 7. In Trespass, the first day of May, the Defendant pleads the Licence of the Plaintiff; without shewing, that it was for the same Trespass: and yet it shall be intended, when he pleads a Licence for the same day, that it was for the same Trespass. And as to the Case put upon the Statute of 1 R. 3. it hath been ruled otherwise; for it shall be shewed on the other side, that he was within age, as it appeareth by 10 & 13 H. 7. Also he said, that the Court here shall intend, that there was a necessity sufficient, without expressing of it; and if there was not, then it ought to be alledged on the other side: As 15 H. 7. An Annuity is granted until he was advanced to a Be­nefice, the Plaintiff shall not need to shew it, but that shall come on the Defendants part; And the Statute which is, That no Cattel of the Plough shall be distrained where the party hath other Cattel of which a Distress may be taken, there the party needs not to alledge, that he had other Cattel, or other Goods. And as to that which hath been said, That it was the better Order, that needs not, for the Defendant himself was one of the makers of the Order; and when By-Laws are made, they shall not extend but to the Tenants within the Mannor where they are made, and to such only as have Lands there, and not to the Lands of others which are out of the Mannor: and the Defendant in this case shall not be received to say, but that this is a good Custom and Or­der, because he is a party to it, and was the maker of it, and that there was then a necessity for the making of it, for the better order­ing of the Lands; and that especially when as the Defendant him­self was a party to it: And as to that which is said, That Seisin is alledged in the Lord Cromwell in 6 E. 6. and it is not alledged, that the Seisin did continue in him until 13th of this Queen; It [Page 43] shall be intended, that he continued seised until the contrary be shewed. As in 11 H. 7. A Man prescribed to have Common by reason of the House, &c. The Avowant doth not say, that he was seised of the House at the time, &c. of the disseisin of the Common, because he once alledged Seisin of the House, and that Seisin shall be intended to continue unto the time of the disseisin. And so 10 H. 7. A Prior Domus & Ecclesiae de C. brought Waste, and sup­posed, that it was to the disenheresin of the House, and did not say, praedict. Domus; and yet it was good, and shall be referred to the said Priory: And so here, when he saith, that he was Lord, and that the By-Law was made as before, and a penalty imposed, and a Distress taken by the Bailiff of the Lord Cromwell, for not ob­serving the By-Law, and payment of the sum assessed, all being put together, makes a sufficient certainty, and that the Lord Crom­well continued his Seisin of the Mannor and Land: And as to that which hath been said, That the By-Law made, and the Cu­stom alledged to distrain in the Lands of any Man for the Offence of another, is not reasonable; and against the Law: To that he said, That the Tenants here had authority to make By-Laws, and by their consents have bounden themselves to the observing and performance of them, and therefore shall not now be received to say, That the By-Law made by themselves was against the Law. And he said, That the Customs in some places are, Where there are Waste Lands, that they may make By-Laws, That if any Tenant or person dig Turfs in the same Waste, that the Lord may distrain for such offence within any place of the Mannor, and the Cattel of any person. Quaere of it. The Principal Case was Adjourned.

LXIV. Mountford and Catesbys Case. Mich. 15 Eliz. In the Common Pleas.

AN Action upon the Case was brought by Mountford against Catesby; Dyer 328. Vaugh. Rep. 120. And the Plaintiff declared, That the Defendant covenanted, assumed and promised in Consideration of a certain sum of Mony to him paid; and in Consideration of the payment of a Rent of certain Lands demised to the Lessee, That he should peaceably and quietly enjoy the same, without Interruption of any person, and he was ousted by a stranger; And the matter afore­said was found by special Verdict: And it was argued by Love­lace, Serjeant; and he prayed Iudgment for the Plaintiff: And he said, That there is a difference, when it is said, that a Man shall hold and enjoy peaceably and quietly; As in Case where one war­rants Land, there if he be ousted by a stranger who hath not any Title to the Land, he shall have an Action of Trespass against him: But a Man by word, or Covenant, may bind himself to that which he is not bound to do by the Law. As, if the Covenant and [Page 44] Promise be, That he shall leave the Houses in as good plight as he found them: there, although the Law doth not bind the party to re-edifie the Houses in case they be overthrown by tempest of Wind; or that they be destroyed by Enemies; yet by his special Covenant he shall be bound to re-edifie them. Meade, contrary, And that this promise shall not be taken strictly against the Lessor,Hob. Rep. 35. that he shall enjoy it against all persons, but only against all persons who have Title, and not against those who have not any Title, because against them he may have his remedy. And if a Man makes a Feoff­ment of his Lands with Warranty, and covenants, that it is discharged of all Rents,1 Roll. 434. 1 Inst. 389. a. 1 Len. 29. there it shall not extend to Rent Servi­ces which are incident to the Lands of Common Right: In 3 H. 7. 4. the Case was, The Condition of an Obligation was, That the Obligor should make Appropriation of the Church of Dale such a day to such a House, at his Costs and Charges discharged of In­cumbrances;Roll. Tit. Conditions. there, although there was a Pension granted there­out to another, it was holden, That the Obligee was not boun­den to discharge it of that Pension; No more than if a Man be bounden to make a Feoffment of his Land, there, although that he charge the Land, yet he shall not forfeit his Bond: But if it were, that he should make a Feoffment of his Land discharged, &c. it is otherwise; but yet he shall not be bounden to discharge it of such things with which it is charged by the Law. Barham, The words are precisely, That he shall enjoy it without interruption of any person, so as be he interrupted by one that hath Title, or no Title, the Plaintiff hath cause of Action. Manwood, What if the words were, That he should enjoy it without Suit in Law? Meade, That shall be intended of a lawful Suit: And in the principal case, although the Contract be by words, yet it is upon a good Consideration; that is to say, Of a Fine and Income, and upon the payment of the Rent: And therefore as Dyer said, When Catesby the Son leased the Lands to Mountford, the now Plaintiff, and it appeared that his Father, or a stranger, made claim to it, and thereupon he made the promise as before, shall it be intended, that he should hold and enjoy the Lands peaceably without inter­ruption of them only who had Title? And that he should not have his Remedy against the Defendant upon his promise, if a stranger who had not Title did interrupt him? Truly, he shall have his re­medy against him: As if the Son had promised that he should enjoy it against his Father; or else that in truth if it were the Land of the Father, shall it not be intended, that the Son did presume that his Father should not interrupt his Lessee? And that he would so deal with his Father, that he should not interrupt him: and it may be, that upon the presumption of the good will of his Father, or that he had treated with him, or compounded with him; that for these, or the like causes, the Son made the promise aforesaid: And if the Father had not any Right or Title to the Land, should not the Les­see have his Action against the Defendant, if the Father did inter­rupt [Page 45] him, for this unlawful Interruption? Truly, Yes; For by the words it is to be supposed, That the Son would so deal with his Father, that the Lessee should enjoy and hold the Lands without any manner of interruption. Mounson, You have well tasted the Opinion of the Court upon this matter before, and now you hear our Opinions again. Manwood, As I said the other day, Can­not an Hostler take upon him, that the Goods of his Guests which are within his Inn, shall be safe, and charge himself further therewith, than he is chargeable by the Custom of the Realm, and to be chargeable against every one that taketh them away? Truly, I conceive he may. Harper, The common making of Assurance is, That he shall enjoy them without any lawful Interruption:1 Roll. 429. And if the Law, upon the general words of Enjoying without In­terruption, should be intended but of lawful Interruptions, It were in vain to have this word (Lawful) in the Deed, &c.

LXV. Mich. 15 Eliz. In the Common Pleas.

AN Action of Debt was brought against one upon an Obliga­tion▪ It was upon an Apprentice Bond; The Condition of which was, That if such a one did become the Apprentice of the Obligee, and transport his Merchandises beyond the Seas, and make a Retorn of them, and maketh an Accompt unto the Obli­gee, and payeth the Monies upon his Accompt within a certain time, that then, &c. And afterwards, the Obligee doth release by Deed to the Servant the Apprentice, and not to the Obligor: And in Debt brought against the Obligor, he pleaded the Release. And it was said by the Lord Dyer, and by the whole Court, That by the Release to the Servant, the Obligation was saved, if the Release were made before any forfeiture; or that the Servant or Appren­tice had broken any of the Conditions, or any point according to the Covenants: but if it was made after any of them was broken, then such a Release to the Servant, did not dispence with the Obli­gation which was made by the stranger, because an Obligation once forfeited, cannot be saved by any Act or Release made or done to a stranger.

LXVI. Mich. 15 Eliz. In the Common Pleas.

IN a Quare Impedit brought by the Patron against the Arch­bishop of York, and the Incumbent,Dyer 327. who was in by the Colla­tion of the Archbishop, after the death of the Incumbent of the Pa­tron. It was said by the Lord Dyer, That of an Avoydance by Resignation, or Deprivation, the Patron shall have 6 months time, after notice thereof given unto him, to present his Clerk, because it may be done secretly, in the Chamber of the Ordinary; and therefore in such case the Law is, That the Bishop is to give notice of it to the Patron, before he be bound to that knowledge of [Page 46] such a Presentment; as it appeareth by the Case in 1 H. 7. 4. And Lowe, the Prothonotary said, That so is the Roll of the same year, where the Issue was, Whether the Patron had 6 months after the notice? And then the Lord Dyer said to the Prothono­tary, Shew me the Roll at another day, that I may compare it with my Book. But if the Church become void by death of the In­cumbent, there the Patron is to take notice of it at his peril, without any other notice thereof to be given him by the Ordinary: And he said, That if the Patron doth present his Clerk a Week before the 6 months be ended, and the Ordinary doth refuse the Clerk for Inability, because he is unlearned, and then the six months pass before he presenteth another, after the six months after the death of the Incumbent; in such case, the Bishop shall have the Collation of the Clerk, because it was the folly of the Patron, that he did not present his Clerk before, so as the Ordi­nary might examine him; and that thereupon if he be found to be unable, that he might present another Clerk to the Ordinary with­in convenient time, and for that cause is the 6 months given to the Patron, that he provide another Clerk in the mean time. And there is a good Case in 14 H. 7. which was long debated. Where the Ordinary commanded the Clerk to come to him afterwards to be examined, because the Ordinary had then other business. And there the better Opinion of the Book is, That it was a good Plea for the Ordinary, That he did not refuse the Clerk, but that the Clerk did not return to him again, and that the 6 months passed, so as he made the Collation, and that the Patron made his presentation too late, so as he had not convenient time to examine him. Then in the Case at Bar, It was moved, That when the Ability and Disability of the Clerk came in Question, by whom the same should be tryed; because in the Case here, the Bishop of York was a party to the Suit, Whether by the Metropolitan of York, or by the Metropolitan of Canterbury. And he said, That as he conceived, the Tryal of the Ability should be by the Metro­politan of York, and not of Canterbury: But he said, That if the party in whom the disability was alledged was dead, so as he could not be examined, the Tryal of his Ability or Disability should be by the Country, as it appeareth in the Book of 39 E. 3. Man­wood, Iustice, The Cure of Souls is to be regarded, and there­fore if an Enfant be to make a Presentation, the same shall not be stayed for his Nonage; and therefore if in such case he doth sur­cease, and shall not present his Clerk, the Law which regardeth more the Cure of Souls than the Enfancy, will permit that the Ordinary shall collate to the Church, if a Presentment thereto be not made within the six months. And he said, That if the Pa­tron should present one but a week before the end of the six months, and the Ordinary should refuse him for disability: If the Patron should have other six months then next after, he might then likewise present an Enfant or other disabled person to the Or­dinary, [Page 47] and so detract the time by fraud, and so the Lapse by such great fraud should never devolve to the Ordinary, and so the Cure should be unserved; And so the Issue would be and arise upon the conveniency of the time. And as to that which hath been said, con­cerning the Ability and Disability of the Clerk, I conceive the same shall be tryed by the Metropolitan of Canterbury, and not by the Metropolitan of York. Mounson, to that intent; and he said, There is a good case in 14 H. 7. 21. which is a short case, and not the Case which hath been vouched; by which it appeareth, that the presentment that shall be within 6 months, shall be accompted from the time of the Avoydance, and not from the time of the pre­sentment, by the whole Court: And there it is said, That the Or­dinary shall give notice to the Patron, if he be a Lay-man, of the Disability of the Clerk, but not if he be a Spiritual person: But if the party Presentee be Criminous, of that the Patron shall take as well notice as the Ordinary. And afterwards, the Lord Dyer caused the Record to be read, and it did not appear therein, at what day the Presentment was made to the Ordinary; which ought to have been shewed: for the great point of the Case doth rest here upon the time of the Presentment, if it were before a week that the six months were ended or not. Also the Ordinary saith in his Bar, That the Clerk was insufficient, and that he gave notice to the Plaintiff, and that Nullam idoneam personam praesentavit: And the Court said, That that was no good manner of pleading; but it had been better, if it had been Nullam etiam personam idoneam prae­sentavit, and the first form would be a Jeosail. Manwood said That the time of the notice given to the Patron, ought to be alledged, because if the Patron sends his Clerk within a month after the Avoydance, and the Ordinary will not give notice to the Patron in the mean time; the same shall not be any default in the Patron: And as to the notice given to the Patron, he said the same was well pleaded, and it shall be intended that it was given to the person of the Patron. And as to the words in the Declara­tion, scil. tunc vacantem, they are but void words, because nothing is spoken before of any time. And the Incumbent pleaded the same Plea, as the Ordinary pleaded. And Dyer asked, If the Incumbent were Person impersonee, for that none should plead that Plea, but he who is Parson in fact, and Incumbent.

LXVII. Mich. 15 Eliz. In the Common Pleas.

THe Case was, That an Information was exhibited into the Court of Common Pleas, for the Queen and the party, upon a Penal Law; And a Subpoena issued forth against two: one of them was served with the Writ, and the other not; and now, a new Subpoena was prayed against him who was not served: And Dyer, Iustice, conferred with his Companions and the Prothono­tary, and demanded of them, If the Plaintiff might Exhibit an Information in this Court? Who answered, That he might; for this is a Court of Record, and the Statute Law limiteth, That it may be exhibited in any of the Queens Courts of Record. Then he demanded of them, If a Subpoena lay out of this place? And Whetley, Prothonotary, said, That it did. Dyer said, It is a strange thing to have an Attachment at the first day. Manwood said, In this Court it is the common usage, upon an Audita Que­rela, to award a Venire facias against the Conusee. Dyer, said to the Prothonotaries, Advise with your selves against the morrow, What Process hath been used to issue forth upon the Presidents of Information which have been before this time, If a Subpoena shall be awarded. And afterwards it was said by Gawdy, who moved for it, That he might have a Subpoena upon this matter.

LXVIII. Mich. 15 Eliz. In the Common Pleas.

NOte: A special Verdict was found at the Bar, and the Issue was taken upon a Traverse; And Dyer, Iustice, said, That a special Verdict could not be taken upon a Traverse, but precisely according to the Issue, and so it was agreed by the whole Court here; but some Serjeants at the Bar did doubt of it.

LXIX. Mich. 15 Eliz. In the Common Pleas.

IN an Ejectione firmae, the Case was thus: King Henry the 8th was seised of certain Lands, and by his Letter Patents granted the same to Thomas Holt for life, the remainder to John Holt his Son, who in truth was a Bastard; and the Letters Pa­tents were, Ex certa scientia, & mero motu, &c. And because the Plaintiff did suppose, that the same was not a good Purchase, he tooke a Lease from the Queen, of the Lands, intending to make void the Letters Patents, because the Defendant was nullius fili­us. And what difference there was in such a Case, in Case of the King and a Common Person, was moved to the Court by Love­lace, Serjeant. Dyer, Iustice, I conceive, That it is a good Pur­chase in Law as well in the Case of the King, as in the Case of a Common Person. And see to that purpose, 39 E. 3. and in this Case, If the King had granted the Land to John Holt without na­ming [Page 49] him Son, the same had been a good Purchase: But if the King had called him John, the Son of Thomas, without giving him a sirname, there such a Purchase should not be good, if he were a Bastard; because he hath not Nomen Cognitum, as where he hath a sirname: and a Man cannot purchase by the Name of John only; and then if he be called John, the Son of Thomas, when he is not his Son, it cannot be good. And such Case hath here lately been ad­judged, Where the Lord Powis gave certain Lands to Thomas Gray his Son, by him begotten upon the Body of Jane Orwell; and in truth the said Thomas was a Bastard of the said Lord Powis, (and the name of Jane was not Orwell, but the Daughter of one Punt; and the Mother of Jane, who was first married to Punt, be­twixt whom Jane was begotten, married with one Orwell;) and yet notwithstanding that wrong Name, and that the said Thomas Gray was not the Son of the Lord Powis, born of Jane Orwell, but of one Jane Punt; yet it was a good Purchase and Gift to Thomas Gray, because it was his known Name. Manwood, As I take it, the Letters Patents are Ex certa scientia, & ex mero motu; and then the Kings Grant shall not be taken in such plight as the Grant of a Common Person, void for incertainty, because that the King takes notice of the Person, of what degree he is; and in the Kings Case, where he takes knowledge, by the words, Ex certa sci­entia, there all matter of uncertainty shall be avoided and made good; but not matter which is not true: And for uncertainty, he said, Where a thing may be taken two ways, there without the words, Ex certa scientia, &c. the best shall be taken for the King, and strongest against the Patentee. But by Dyer; by the words, Ex certa scientia, &c. that incertainty is saved, and shall be taken strong for the Patentee; and if it can any ways be taken for him, then the Patent shall not be void: and then when in the principal Case, there is the word (Son,) and the word (Son) may be taken two ways, either for a base Son, or a true Son; there by the words, Ex certa scientia, the King taketh upon him to know in what manner he is Son; and a base Son is a Son Quodam modo, so as the Letters Patents shall not be false: But where the King, in his Letters Patents recites a thing which is false, that shall not make the Patent good, although the words be, Ex certa scientia, et mero motu.

LXX. Mich. 15. Eliz. In the Common Pleas.

NOte; It was agreed by the Court, That if a Man in a Reple­vin pleadeth, and they are at Issue, and the Iury is charged, and gone from the Bar, and returns to give their verdict, and the Plaintiff be non-suit, their retorn irreplevisable shall not be award­ed, as in case if a verdict had been given; But the party may have a Writ of second Deliverance, as well as if he had been nonsuit before declaration or appearance.

LXXI. Trin. 15 Eliz. In the Common Pleas.

THe Case was; The Husband levied a Fine of his Land, and died, and his Wife within the 5 years after the death of her Husband, brought her Writ of Dower, but did not pursue her Writ, until 6 years were past, and then she would have revived her Suit. And Meade, Serjeant, demanded the Opinion of the Iustices, If the Wife should be barred of her Dower, or not? And by Manwood, Iustice, it was moved again, If they at the Bar did agree, That if a Fine be levied by the Husband, and the Wife doth not make her claim within the 5 years, if for that she shall be barred? And he conceived, That she should not be barred; For he said, That he who hath Title to the Land at the time of the Fine levied, if he doth not sue within 5 years after his Title ac­crued, should be barred: But where the Title accrues after the Fine, there he who hath Title shall not be barred by the 5 years; but he may come 30 years after, and make his Title and Claim. But in the principal case he said, That if the Fine had been levied after the death of the Husband, there the Wife should be barred, if she did not pursue her Right and Claim within 5 years: And he agreed, That if the 5 years be a Bar here, that then by the Wives suffering of her Writ of Dower to be discontinued till after the 5 years were past, that she should be barred, because vigilan­tibus & non dormientibus subveniunt Leges. Harper said, That the Discontinuance should be no Bar unto her; For he said, That if a gift be made to one in tail, the Remainder over, and Tenant in tail dieth without Issue, and he in the Remainder brings a For­medon in the Remainder within 5 years, and discontinueth it, yet it is no Bar, but that after the 5 years ended, he may revive his Suit: Which Manwood denyed: And then Dyer came into the Court, and the Case was moved to him: And he said, That the not prosecuting of the Action by the Wife, should be a Bar unto her: and that the Marriage which was before the Fine, was the cause of Dower, although she could not come to be endowed, un­til after the death of her Husband: And he said, That the Wife could make no other to have her Dower, but only by bringing of her Writ of Dower; and therefore if she did surcease her time un­til the 5 years were past, that her new claim by her new Writ, would not revive the Ancient Claim, and that therefore she should be barred; For she could not enter into the Land to defeat the Fine: And he said, That as to the principal Case, That it was adjudged, Anno 4 H. 8. And it was also said by the Court, That an Assignment of Dower made to the Wife in the Court of Wards, was no sufficient claim of the Wife; because she cannot have a Writ of Dower there; and there by this surceasing of her demand of her Dower for the 5 years at the Common Law, that she should be barred.

LXXII. Trin. 15 Eliz. In the Common Pleas.

THe Case was; A Man made a Lease for years, and the Lessee Covenanted to make Reparations; The Lessor granted the Reversion to another, and the Lessee for years made his Wife his Executrix, and died: It was holden in this Case by the Court, That the Grantee of the Reversion should not recover damages, but from the time of the Grant, and not for any time before: But yet the Wife the Executrix should be charged for the not Repara­tions as well in the time of her Husband, as in her own time▪ And if she do make the Reparation, depending the Suit; yet thereby the Suit shall not abate, but it shall be a good cause to qualifie the damages according to that which may be supposed, that the party is damnified for the not repairing from the time of the purchase of the Reversion, unto the time of the bringing of the Action. And it was said by Manwood, That by the Recovery of the damages, that the Lessee should be excused for ever after, for making of Repa­rations; so as if he suffer the Houses for want of Reparations to de­cay, that no Action shall thereupon after be brought for the same; but that the Covenant is extinct.

LXXIII. Easter Term. 15 Eliz. In the Common Pleas.

LOvelace moved the Court, that in the Kings Bench this case was argued upon a Demurrer there; A Feoffment was made by one Coxley, who took back an Estate for life, the remainder to him who should be his Heir at the time of his death, and to the Heirs males of his body begotten: And afterwards, the Tenant for life after the Statute of 32 H. 8. suffered a Recovery to be had against him, that that Recovery was good as it was at the Com­mon Law, Because the Statute doth not speak but that it shall not be a bar to him who hath the Reversion at the time of the Reco­very, but this remainder was in Abeyance until the death of the Tenant for life; and that in the same Court it was adjudged ac­cordingly in an Ejectione firmae; and because the same was a dis­continuance, the Plaintiff had here brought his Formedon in the Remainder; and therefore Lovelace prayed, That they might proceed without delays, (because the Plaintiffs Title appeareth) without Essoigns, and feigned delays: Which Dyer, Iustice, conceived to be a reasonable request, and that it should be well so to do; because, as he said, This Court is debased and lessened, and the Kings Bench doth encrease with such Actions which should be sued here, for the speed which is there: And he said, That the delays here were a discredit to the Court; so as all Actions, al­most, which do concern the Realty, are determined in the Kings Bench in Writs of Ejectione firmae, where the Iudgment is, Quod recuperet terminum, and by that they are put into possession; and [Page 52] by such means, no Action is in effect brought here, but such Actions as cannot be brought there; as Formedons, Writs of Dower, &c. to the Slander of the Court, and to the Detriment and Loss of the Serjeants at the Bar. And Lovelace shewed, That divers mean Feoffments were made, &c.

LXXIV. Mich. 15 Eliz. In the Common Pleas.

NOte: This Case was in Court: An Heir Female was in Ward of a common person, who tendred to her a marriage, viz. his younger Son; and she agreed to the Tender, and the Guardi­an died; The Heir married the younger Son according to the Ten­der: The Executors of the Guardian brought a Writ de Valore Maritagii, supposing the Tender by the Lord to be void by his death. But the Court was of a contrary Opinion, because the Tender of their Testator was executed.

LXXV. Riches Case. Mich. 15 Eliz. In the Common Pleas.

ELizabeth Rich brought a Writ of Dower against J.S. who pleaded, and Iudgment given for the Defendant, and after­wards the Iudgment was reversed. And she brought a new Writ of Dower, and the Tenant pleaded, That he always was ready, and yet is, &c. Against which the Demandant pleaded the first Re­cord to estop the Tenant. To which the Tenant pleaded, Nul tiel Record. It was the Opinion of the Court, That here the Deman­dant cannot conclude the Tenant by that Replication, to plead, Nul tiel Record; For the Iudgment is reversed, and so no Record, and it cannot be certified a Record. But if the Tenant had taken Issue upon the plea of the Tenant abs (que) hoc, that he was ready; the same might well have been given in Evidence against the Tenant.

Note: That the Case was, That the Demandant after the death of her Husband entred into the Land in Demand, and con­tinued the possession of it 5 years; and afterwards the Heir en­tred; upon which she brought Dower. It was agreed in that Case, That the Tenant needed not to plead, Tout temps prist. after his re-entry; for the time the Demandant had occupied the same, is a sufficient recompence for the Damages.

LXXVI. Vavasors Case. Mich. 15 Eliz. In the Common Pleas.

NIcholas Ellis, seised in Fee of the Mannor of Woodhall, Leased the same to William Vavasor, and E. his Wife, for the life of the Wife, the remainder to the right Heirs of the Husband; The Husband made a Feoffment in Fee to the use of himself and his Wife for their lives, the remainder to his right Heirs: The Hus­band died, the Wife held the Land, and did Waste in a Park, par­cel of the Mannor: It was moved to the Court, If the Writ of Waste should suppose, that the Wife held ex dimissione Nicholai Ellis, or ex dimissione of her Husband: It was the Opinion of the Court, That upon this matter, the Writ should be general, viz. that she held de haereditate J.S. haeredis, &c. without saying any more, either ex dimissione hujus, vel illius. For she is not in by the Lessor, nor by the Feoffees, but by the Statute of Vses; and there­fore the Writ shall be ex haereditate: It was also the Opinion of the Iustices, That the Wife here is not remitted, but that she should be in according to the Term of the Feoffment. Note in this Case, The Waste was assigned in destroying the Deer in the Park. And Meade, Serjeant, conceived, That Waste could not be assigned in the Deer, unless the Defendant had destroyed all the Deer: And of that Opinion also was Dyer. Manwood said, If the Lessee of a Dove-house destroyed all the old Pigeons, but one or two couple, the same is Waste. And if a Keeper destroy so many of the Deer, so as the ground is become not Parkable, the same is Waste; al­though he doth not destroy them all. See 8 R. 2. Fitz. Waste 97. If there be sufficient left in a Park, Pond, &c. it is enough.

LXXVII. Mich. 15 Eliz. In the Common Pleas.

AN Action upon the Case was brought against Executors; They were at Issue, Vpon nothing in their hands: It was given in Evidence on the Plaintiffs part, That a stranger was bound to the Testator in 100 l. for performance of covenants; which were broken; For which the Executors brought Debt upon the Obligation, depending which Suit, both parties submitted themselves to the Arbitrament of A. and B. who awarded, That the Obligor should pay to the Executors 70 l. in full satisfaction, &c. and that the Executors should release, &c. which was done ac­cordingly. And it was agreed by the Court, That by the Release, it shall be taken in Iudgment of Law, That the Executors have Assets to the value of the whole 100l. And although the Executors were compelled by the Award to make the release; yet it was their own act to submit themselves to the Arbitrament.

LXXVIII. Mich. 15 Eliz. In the Court of Wards.

NOte: It was Ruled by Kellaway and Wilbraham in the Court of Wards, That where the Kings Tenant of Lands holden by Knight service in Capite, made a Feoffment of the same Land to the use of himself for life, and after to the use of his youn­ger Son in tail, the remainder to the right Heirs of the Feoffor, and died, the eldest Son within age, That the Queen should have the Wardship of his body, and of the third part of the Land; and when the eldest cometh at full age, the younger shall sue Livery, and pay Primer Seisin according to the rate of the value of the whole Land, viz. of the third part, as in possession; and of the two parts as a Reversion: For the remainder to the right Heirs of the Feoffor, is in truth a Reversion. For the Feesimple was never out of him, because there was not any Consideration as to that, nor any use expressed. And also because that Livery shall not be by parcels, the younger Son shall not be suffered to sue Livery of the third part presently, and respite the residue as to the two parts in Reversion, until the Reversion fall, but shall sue Livery present­ly, as well of the two parts in reversion, as of the third part in pos­session: And if the eldest Son had been of full age, at the time of the death of his Father, the younger Son should pay Primer Seisin as to the third part of the full value of it for one year as in possession; and as to the two other parts, the moyety of the value of a year as a Reversion. And at that time Breers Case was vouched; which was, Oliver Breers, Tenant in Chief by Knights Service, made a Feoff­ment in Fee to the use of himself for life, and after to the use of A. his Son and Heir for life, and after to the use of the first begotten Son of A. in tail, and after to the use of the second Son of A. &c. and for default of such Issue, to the right Heirs of the Feoffor: Oli­ver died, the said A. his Son being of full age: It was ruled by the said Council of the said Court of Wards, That he should pay for his Primer Seisin, a third part of the Land in possession, and two parts as a Reversion.

LXXIX. Mich. 15 Eliz. In the Common Pleas.

Post. 56.THe Case was; A Man was seised of a Pasture, in which was two great Groves, and a Wood, known by the name of a Wood; And also in the same Pasture were certain Hedge-Rowes and Trees there growing Sparsim, Leased the same by Indenture for years. And by the same Indenture bargained and sold to the Lessee, all Woods and Vnderwoods in and upon the Premisses: And further, That it should and might be lawful to the Lessee to cut down and carry away the same at all times during the Term. Harper, Iustice, The Hedge-Rowes did not pass by these words, Hedge-Rowes sparsim. Dyer, The Hedge-Rowes shall pass, for [Page 55] the Grant is general, All Woods. Mounson, contrary; For the words of the Grant may be supplyed by other words. It was moved further, If by these words, the Lessee may cut them oftner than once? And by Harper, Manwood, and Mounson, He can cut them but once. Dyer, contrary; And so it should be, if the words had been, Growing upon the Premisses. And this word (Growing,) although it sounds in the present Tense, yet it shall be also taken in the future Tense, if the word (tunc) had not been alledged; for it is a word of restraint. The Case which was argued in the Chan­cery, 27 H. 8. where I was present, was such, The Prior of St. John of Jerusalem Leased a Commandry; Provided, That if the said Prior, or any of his Brethren there being Commanders, will dwell thereupon, then the said Lease to be void. It was doubted, If that did extend to the Successors, for the word (Being) is in the present Tense. And yet it was holden by Fitzherbert, That it should be taken in the future Tense, and so extend to the Suc­cessors: Otherwise, if the words had been (Nunc) Being.

LXXX. Mich. 15 Eliz. In the Common Pleas.

A Man seised of Lands in Fee, devised,1 Len. 101. That his Wife should take the profits of his Lands, until Mary his Daughter and Heir came to the age of 16 years; And if the said Mary died, That J.S. should be her Heir. Manwood, The Daughter after she hath attained the age of 16 years, shall have the Land in tail; For De­vises ought to be construed according to the intent of the Devisor, so far forth as any certainty with reason may be collected, but no intent shall be taken against all reason and certainty. It is cer­tain, That the Daughter shall not have the Land in Fee; for that shall descend to her without any Devise: And these words (If she dieth) cannot be intended a Condition; for it is certain she shall die. But if the words had been, That after the death of Mary, J.S. should be his Heir; in such case, Mary had had but an Estate for life, for there it is limited what Estate she should have. And when it is said, J.S. shall be his Heir, it shall be meant his Colla­teral Heir, so as the Estate tail remains in the Daughter. Moun­son and Harper, to the contrary, and that she shall have but for life. And by Mounson, If Mary had been a stranger to the Devise, she should take nothing. And this Case was put by Barham, Serjeant, A Man deviseth 100l. to his youngest Daughter, 100l. to his mid­dle Daughter, and another 100l. to his eldest Daughter; and that all these sums shall be levied of the profits of his Lands. It was holden by the better Opinion of the Court in this Case, That the youngest Daughter should be first paid, and then the middle, and then the eldest Daughter; and that was said to be Coniers Case.

LXXXI. Mich. 15 Eliz. In the Common Pleas.

THe Case was; The King granted to the Bishop of Salisbury, That he should have Catalla felonum & fugitivor', and Fines and Amercements of all Tenants and Resiants within the Man­nor of D. which Mannor, the Bishop Leased for years, and that the Lessee should have all profits and hereditaments within the same Mannor. Manwood, Iustice, conceived, That the Lessee should have the Post Fines: For all things have a being some­where, although they be not visible; As Rents, Fines, have their being in the Lands out of which they are issuing, and that is in the Son, of a Fine levied of the Land within the Mannor, which is due by Land of him who ought to pay the Fine. And this Fine is due be rea­son of the Land, therefore it is in the Land, or within the Land; i. e. the Mannor. For the King may distrain for the Fine as well in the same Land, as in the Land of him who ought to pay it. Dyer doubted of it, and said, That the Bishop could not distrain in the Land for this Fine, but should have it by allowance in the Exche­quer upon the Estretes; and if the party would not pay it, the Lessee should have a Subpoena against him out of the Exchequer. And some were of Opinion, That the Lessee could not have this Fine,2 Len. 179. 4 Len. 234. for that they were not Hereditaments within the Mannor, but rather in the Exchequer, or Court where the Record is.

LXXXII. Mich. 15 Eliz. In the Common Pleas.

THe Case was; A Man seised of a Pasture, in which are two great Groves, and a Wood, known by the name of a Wood; And also in the same Pasture there are certain Hedge-Rowes and Trees there growing Sparsim; Leased the same by Indenture for years: And by the same Indenture, bargained and sold to the Lessee, all Woods and Vnderwoods in and upon the Premisses: And further, That it shall and may be lawful to the Lessee to cut down and carry away all the same at all times du­ring the Term. Harper, The Hedge-Rowes do not pass by these words, for they are not known by the name of Woods, 14 H. 8. 2. contrary by Manwood, For by such words, Hedge-Rowes pass. Mounson, contrary; For the words of the Grant may be supplyed by other Words. Dyer, The Hedge-Rowes shall pass, for the Grant is general, All Woods. It was moved further, If by those words, the Lessee might cut them a second time, or but once? Harper, Manwood, and Mounson, He may cut them but once. Dyer, contrary; And so it should be, if the words had been, Growing up­on the Premisses. And this word (Growing,) although it sounds in the present Tense, yet it shall be also taken in the future Tense, if not that the word (tunc) had been there; for that is a word of Re­straint. The Case was argued in the Exchequer Chamber, where [Page 57] I was present; which was, The Prior of St. John's, Leased a Commandry; Provided, That if the said Prior, or any of his Brethren there being Commanders, will dwell thereupon, then the said Lease to be void. It was doubted, If that Proviso did extend to the Successors; for the word, Being, is in the pre­sent Tense: And yet by the Opinion of Fitzherbert, it shall be taken in the future Tense, and so extend to the Successors: Otherwise, if the words had been, Now being.

LXXXIII. Mich. 15 Eliz. In the Common Pleas.

A. Made B. his Executor, and died;Vid. le stat. 43 Eliz. cap. 8. Office of Ex­ecutors, 261. B. to the intent to defraud the Creditors, refused to take upon him the Executorship, but caused a stranger to take upon him Letters of Administration; which stranger fraudulently gave the Goods of the Testator to B. Dyer, If the gift be fraudulent, then by the Statute of 13 Eliz. the gift is void; and then B. by the Occupation of the Goods, shall be charged as Executor of his own wrong. Manwood, I conceive there is a difference, If one makes an Executor, and another takes the Goods, but doth no Act which concerns the Office of an Execu­tor, as paying of Debts; he is not Executor of his own wrong but a Trespassor to him who is Executor in right: but if he doth any Act which belongs to the Office of an Executor, then he is Execu­tor of his own wrong. Dyer, That Case hath been adjudged against you: and although the Books of 9 E. 4. & 22 H. 6. were vouched; Yet Iudgment was given against the Opinion of Man­wood. It was the Case of one Stoke.

LXXXIV. Jackson and Darcyes Case. Mich. 16 Eliz. In the Common Pleas.

IN a Writ de Partitione facienda, between Jackson and Darcy, the Case was; Tenant in tail, the remainder to the King, le­vied a Fine, had Issue, and died: In that case, It was adjudged, That the Issue was barred, and yet the remainder which was in the King was not discontinued; For by that Fine, an Estate in Feesimple determinable upon the Estate tail, did pass unto the Conusee.

LXXXV. Strowds Case. Hill. 17 Eliz. In the Common Pleas.

IN a Replevin, the Case was, That Lands holden of a Subject, came to the possession of the King by the Statute of 1 E. 6. of Chauntries, and the King granted the Lands over: In that case, It was holden, That the Grantee shall hold the Lands of the King according to the Patent, and not of the Ancient Lord: But the Patentee shall pay the Rent by which the said Land was before hol­den, as a Rent seck distrainable of Common Right to the Lord only and his Heirs; scil. to him of whom the said Lands were be­fore holden.

LXXXVI. Tresham and Robins Case. Mich. 17 Eliz. In the Kings Bench.

TResham brought an Action of Debt upon a Recognizance against Robins; The Condition of which Recognizance was, To stand to the Arbitrament of A. and B. who made Award, That Robins should have the Land, Yielding and paying 10l. per annum; And that Tresham in further assurance, should levy a Fine to Robins of the same Land, and upon that, Robins should grant and render to Tre­sham; which is done accordingly: the Rent is behind, Tresham brought Debt upon the Recognizance: The Defendant pleaded the special matter, with this per close, Unde petit Judicium, if the Plaintiff should have Execution against him. And by the Opinion of the whole Court, the Conclusion of the Plea is not good; For here is not any Execution of the same Debt, but an Original Action of Debt brought; in which case, he ought to have concluded Iudg­ment Si actio. It was further moved, If these words, Yielding and paying, make a Condition? And it was agreed, That the words do amount to as much as, So as he pay the Rent: And if a Man makes a Feoffment in Fee, Reddendo & salvendo 10 l. for years, the same is a Condition. But in the principal Case, It is not a Condition; For it is not knit to the Land by the Owner it self, but by a stranger; i. e. Arbitrator: but it is a good Clause to make the same an Article of the Arbitrament, which the parties are bound to perform, upon pain of forfeiture of the Recognizance: Which Wray concessit; And that this Rent should not cease by Eviction of the Land.

LXXXVII. The Earl of Westmerlands Case. Hill. 18. Eliz. In the Common Pleas.

THe Earl of Westmerland seised of a Mannor, whereof the Demesnes were usually let for three Lives by Copy,2 Len. 152. 2 Brownl. 208. accor­ding to the Custom of the Mannor, granted a Rent-charge to Sir William Cordell, pro consilio impendendo, for the term of his Life, and afterwards conveyed the Mannor to Sir William Clifton in tail. The Rent is behind, Sir William Cordell dieth; Sir William Clifton dieth, the Mannor descended to Sir John Clifton, who granted a Copy-hold to Hempston; The Executors of Sir William Cordell distrain for the Rent: And it was agreed by the whole Court, That the Copyholder should hold his Copy-hold charged. Vide inde, 10 Eliz. Dyer 270. Windham, It hath been adjudged, That the Wife of the Lord shall not be endowed against the Copyholder, which Periam granted, and shewed a reason thereof; For the Title of Dower is not consummated before the death of the Husband, so as the Title of the Copyholder was compleated before the Title of Dower; But the Title of the Grantee of the Rent is consummated before the Dower. Fenner conceived, That the Exe­cutors could not distrain upon the Possession of the Copyholder; and he argued, That this Case is not within the Statute of 32 H. 8. For by the Preface of the said Statute, he conceived, That the Statute extended but to those Cases, for which by the Common Law, no remedy was provided; but in this Case the Executors by the Common Law might have had an Action of Debt, Ergo. But Periam and Windham held the contrary; For this Statute in­tends a further remedy for that mischief, viz. not only an Action of Debt, but also Dissress and Avowry. See the words of the Statute, viz. distrain for the Arrearages, &c. Vpon the Lands, &c. which were charged with the payment of such Rents, and chargeable to the distress of the Testator so long as the said Lands continue, remain, and be in the seisin or possession of the said Tenant in De­mesne, who ought immediately to have paid the said Rent so be­ing behind to the said Testator; or in the seisin or possession of any other person or persons claiming the said Lands only by and from the said Tenant by purchase, gift, or descent, in like man­ner and form as their Testator might or ought to have done in his life time. It was moved by Fenner, That here the Land charged, doth not continue in the seisin or possession of the Tenant; And here Sir J. Clifton was issue in tail, and therefore he doth not claim only by the Father, but per formam Doni, and therefore he is not lyable, Ergo, nor his Heir. Shuttleworth contrary, Sir J. Clifton was chargeable, and he claims only from them who im­mediately ought to have paid the Rent. And the Copyholder claims by purchase from Sir J. Clifton, so he claims from Sir [Page 60] William Clifton the Tenant, although he doth not claim imme­diately. For if the Tenant ought to have paid it, and he dieth, and the Land descendeth to his Heir, and the Heir maketh a Feoff­ment, the Feoffee shall be charged within this Statute; although he doth not claim immediately: So where Land discharged descends from the Tenant who ought to have paid it; and so from Heir to Heir. The Statute of 1 R. 2. is, That all Grants, &c. shall be good against the Donor, &c. his Heirs, &c. claiming the same only as Heirs to Cestuy que Use; Yet if Cestuy que Use grants a Rent-charge, and his Feoffees are disseised, the Grant shall be good against the Disseisor, and yet he doth not claim only by Cestuy que Use. And although Sir J. Clifton be Tenant in tail, and so claims per formam Doni, yet forasmuch as the Estate tail comes under the Estate of him who grants the Rent, he shall be subject to the charge: And this Statute extends not only to him who claims by the Tenant, but also to the Heir of him, &c. And by Windham, and Rhodes, The Copyholder doth not claim only by the Lord, but he claims in also by the Custom; but the Custom is not any part of his Title, but only appoints the manner how he shall hold. The possession here is continued in Sir J. Clifton, for the posses­sion of his Copyholder is his possession; so as if the Copyholder be ousted, Sir J. Clifton shall have an Assise; And so the strict words of the Statute are observed, for the seisin and possession continue in Sir J. Clifton, who claims only by Sir William Clifton, who was the Tenant in Demesne who ought to pay the Rent. But Fenner said to that, That the seisin and possession intended in the Statute, was the very actual possession, i. e. pedis dispositio, and such a posses­sion in which a distress might be taken, and that could not be taken in a Freehold, without actual possession.

LXXXVIII. Owen and Sadlers Case. Hill. 18 Eliz. In the Common Pleas.

10 Co. 96. A Lease was made to A. for life, the remainder to B. in tail, the remainder to the right Heirs of B. who bargains and sells all his Estate, or levies a Fine with Proclamations of it to D. A. commits Waste: It was holden by the Court, That D. shall not punish him in an Action of Waste, for nothing passeth to him but during the life of the Grantor; scil. as to the remainder in tail, in respect of which Estate, the Action of Waste is only main­tainable: for although that the Feesimple passeth to the Grantee, or Conusee, yet in respect of that, an Action of Waste is not main­tainable, until the Estate tail be spent.

LXXXIX. Mich. 18 Eliz. In the Common Pleas.

THe King seised of a Mannor,2 Cro. 53, 123. Yel. 90, 91. 1 Cro. 240. 2 Roll. 371. Hob. Rep. 242. to which an Advowson is appen­dant; A stranger presents, and his Clerk is in by 6 months; The King grants the Mannor with all Advowsons appendant to it, to B. The Incumbent dieth: In this case, It was holden by the Court, That the Grantee might present; For the Advowson was always appendant, and the Inheritance of the same passed to the Grantee; for it was not made disappendant by the Vsurpation: But the Patentee shall not have a Quare Impedit of the first distur­bance, for that presentment did not pass unto him, being a thing in Action, without mention of it in his Grant: And if the Plain­tiff brings a Quare Impedit of the second Avoydance, he shall make his Title by the presentment of the King, not making mention of the Vsurpation; Yet if the Bishop present by Lapse in the case of a common person, he ought to make mention of it.

XC. Mich. 18 Eliz. In the Kings Bench.

IN an Ejectione firmae, upon an Evidence, the Case was this; The Bishop of Rochester, 4 E. 6. Leased to B. for years, ren­dring Rent; and afterwards granted the Reversion to C. for 99 years, rendring the ancient Rent; Habendum from the day of the Lease, without impeachment of Waste; which Grant was confir­med by the Dean and Chapter, but B. did not attorn. And in de­fault of Attornment, It was holden by the whole Court, That the Lease was void: For it was made by way of grant of the Rever­sion, and to pass as a Reversion. But by Catline, If the Bishop had granted the Reversion, and also demised the Land for 99 years, It should pass as a Lease to begin first after the former Lease determined. And as to the Attornment, it was given in Evidence, That B. after the notice of the Grant to C. had speech with C. to have a new Lease from him, because he had in his Term but 8 years to come; but they could not agree upon the price. And it was the Opinion of the Iustices, That the same was an Attornment, be­cause he had admitted the said C. to have power to make to him a new Lease. Also the said B. being in Company with one R. and seeing the said C. coming towards him, said to the said R. See my Landlord, meaning the said C. Bromley, Sollicitor, The same is no Attornment, being spoken to a Stranger. Barham, contrary; Because that C. was present. And it was holden to be a good Attornment: But if that Attornment was not before that the Bi­shop was translated to Winchester, the Lease should be void. And although the Confirmation of the Dean and Chapter was before the Attornment, so as no Estate was vested in C. yet it was good enough; For an assent of the Dean and Chapter is suffi­cient, [Page 62] be it before or after; as it was holden by Catline, South­cote, and Whiddon. But Wray contrary.

XCI. Norwich and Norwich's Case. Trin. 18 Eliz. In the Kings Bench.

HEnry Norwich was bound by Obligation to Symon Nor­wich, upon Condition, To stand to the Award of J.S. who awarded, That the said Henry should pay to Symon 150 l. at such a day. And that the said Henry should find 3 Sureties to be boun­den with him to the said Symon for the payment of another sum of Mony to the said Symon. In Debt, upon this Obligation, Henry pleaded, As to the 150 l. payment; and as to the other point, That he was always ready to become bounden, &c. And as to the finding of Sureties, he demanded Iudgment; for that, as to that, the Arbitrament is void. See 22 H. 6. 45. 17 E. 4. 5. 21 E. 4. 75. It was holden, That in such a case of such Award to find Sureties, the Defendant is not to find Sureties, but is only to tender his Obligation. And of that Opinion, was the whole Court, Because it was an Act to be done by a stranger to the Award. But if the Award had been of an Act to be done to a stranger, by him who was party to the Award, then the Award had been good: But if the stranger will not accept of the Monies awarded, his Obligation is saved. So if the Award be, That one of the parties to the Award shall discontinue a Suit, which he hath against another; If the Court where the Action is depending, will not suffer the discontinuance of it, the Award is performed: And in the principal Case, It was ruled accordingly.

Note; The same day another Case was in the same Court, Between Dudley and Mallery: The Condition was, to per­form an Award, &c. The Defendant pleaded performance of the Award. The Plaintiff assigned the breach of the Award in this, because the Award was, That the Servant of Mallery should pay to the Servant of Dudley 5 l. which the Defendant had not paid. It was the Opinion of the Court, That the Bond was not for­feited, for the Servants utrius (que) are strangers to the Submission. But if the Award had been, That Mallery should pay to the Ser­vant of Dudley 5 l. it had been good, for that Mallery is a party to the Submission, &c.

XCII. Rivers and Pudsey's Case. Hill. 19 Eliz. In the Kings Bench.

JOhn Rivers, Alderman of London, brought a Writ of Accompt against Pudsey; who said, That at the time, &c. and now, he is the Plaintiffs Apprentice; and demanded Iudgment, &c. And it was holden by Wray, Iustice, That it is no Plea: for although an Apprentice cannot be charged by this Action, for ordinary Receipts upon his Masters Trade; yet upon collateral Receipts, which do not concern the ordinary Trade of his Master, he shall be charged as well as another. See 8 E. 3. tit. Acc. 94. And, F.N.B. 119.

XCIII. Potkins Case. Hill. 19 Eliz. In the Kings Bench.

IN Debt upon an Obligation by Potkin; The Defendant plead­ed, That he himself borrowed of one Watson a certain sum of Mony, paying for the forbearance thereof excessive Vsury; And that the Plaintiff was bound with the said Defendant to the said Watson, for the payment thereof; and that he himself by this Obligation upon which the Action is brought, was bound to the said Plaintiff to save him harmless against the said Watson, &c. And because that this Bond was a Counter-Bond for the payment of Excessive Vsury, &c. And it was holden by Manwood, That the same was a good Bar; for here, the Plaintiff when he was im­pleaded upon the principal Bond, might have discharged himself upon this matter, and therefore his Lachess shall turn to his pre­judice; and therefore the Issue was joyned upon the excessive Vsury.

XCIV. Abrahall and Nurse's Case. Hill. 19 Eliz. In the Common Pleas.

JOhn Abrahall brought a Writ of Right-Close against John Nurse, in the Court of George Earl of Shrewsbury, and made protesta­tion to prosecute that Writ in the form and nature of the Writ of the Lady the Queen, of Assise of Novel disseisin, at the Common-Law, and made his Plaint accordingly. And afterwards the Assise was taken, who spake for the Plaintiff; Whereupon Abrahall had Iudgment to recover. After which, Nurse brought a Writ of False Judgment, and assigned Error in this. That whereas the said Writ of Right-Close was directed to the Bailiffs of George Earl of Shrewsbury of his Mannor, &c. that the said Bailiffs should do full Right, &c. that it appeareth by the Record, that the Plea was [Page 64] holden before the Suitors, and not before the Bailiffs of George Earl of Shrewsbury. For all the Precepts in the Plea aforesaid, are, Quod sint hic ad proximam Curiam coram Sectatoribus tenend. An other Error was in this, and false Iudgment was given therein, because that the Roll is, Praeceptum est Ministro Curiae praedict. that he cause to come 12 Free and lawful Men, &c. videre illud tenementum, &c. & nomina eorum imbreviare, &c. and the Minister of the Court retorned 12 Recognitors of the Assise afore­said; whereas by the Law of the Land, 24 Recognitors in a Plea of Land ought to be retorned. But notwithstanding that these Exceptions were taken; Yet upon due consideration of the Court, notwithstanding these Exceptions, the Iudgment was affirmed. See the Record, Mich. 17 & 18 Eliz. Rot. 1301.

XCV. The Master and Scholars of Linckfords Case. Hill. 15 Eliz. In the Common Pleas.

IN an Ejectione firmae, the Case was; That the Master and Scholars of Linckford were seised of the Mannor of Haldesley in the Town of Laberhurst; which Town extended into the Coun­ty of Sussex, and also in the County of Kent; and they made a Lease to one Clifford of all their Lands in the Town of Laber­hurst, except the Mannor of Haldesley; whereas in truth they had not any Lands in the said Town, but the said Mannor: And the Ejectione firmae was brought of that Mannor in Kent; and from thence the Visne came, and all the special matter aforesaid was found by Verdict: And Exception was taken to the Verdict, be­cause they have found generally, That the Master and Scholars had not any thing in the said Town of Laberhurst, but the said Man­nor: Whereas, they ought to have said, That they had not any thing in the said Town in the County of Kent: For they could not take notice what Lands the Master and Scholars had in that part of the Town which was in the County of Sussex. And of that Opinion the whole Court seemed to be. But Quaere of it; for it was adjourned.

XCVI. Hinde and Lyons Case. Mich. 19 Eliz. In the Common Pleas.

Post. 70. Dyer 124. 2 Len. 11.IN Debt by Hinde, against one as Son and Heir of Sir John Lyon, who pleaded, Nothing by descent, but the third part of the Man­nor of D. the Plaintiff replyed, Assets; and shewed for Assets, That the Defendant had the whole Mannor of D. by descent: Vp­on which they were at Issue. And it was given in Evidence to the Iury, That the said Mannor was holden by Knights-Service; And that the said Sir John the Ancestor of, &c. by his Will in wri­ting, [Page 65] Devised the whole Mannor to his Wife, until the Defen­dant his Son and Heir should come to the age of 24 years; And that at the age of his Son of 24 years, his Wife should have the third part of the said Mannor for her life, and his Son should have the residue: And if that his said Son do die before he come to his said age of 24 years without Heir of his body, that the Land should remain to J.S. the remainder over: The Devisor died, The Son came to the age of 24 years. The Question was, If the Son had an Estate in tail, for then for two parts he was not in by descent. And it seemed to Dyer and Manwood, That here was not any Estate in tail; for no tail shall rise, if not that the Son die before his said age, and therefore the tail shall never take effect: and the Fee-simple doth descend, and remain in the Son, unless that he dieth before the age of 24 years; and then the Estate vests with the re­mainder over: but now having attained to the said age, he hath the Fee, and that by descent of the entier Mannor, and then his Plea is false, That but the third part descended. And a general Iudgment shall be given against him as of his own Debt; And an Elegit shall issue forth of the moyety of all his Lands, as well those which he hath by descent from his Ancestor, as his other Lands; And a Capias also lieth against him. But Manwood, Iustice, conceived, That if a general Iudgment be given against the Heir by default, in such cause, a Capias doth not lie, although it lieth in case of a false Plea. Dyer, contrary, And the Writ against the Heir is in the debet & detinet; which proves, That in Law it is his own Debt. And he said, That he could shew a President, where such an Action was maintainable against the Executors of the Heir.

XCVII. Mich. 19 Eliz. In the Common Pleas.

THe Case was; A. seised of Lands in Fee,2 Len. 154. Hob. 285. Dyer 329. by his Will in writing, granted a Rent-Charge of 5 l. per annum out of the same to his younger Son, towards his education and bringing up in Learning: The Question was, If in pleading, the Devisee ought to aver, That he was brought up in Learning? And it was holden by Dyer, Manwood, and Mounson, Iustices, That there needs no such Averment; for the Devise is not Conditional: and therefore although he be not brought up in Learning, yet he shall have the Rent: And the words of the Devise are, Towards his bringing up. And the Devisor well knew, that 5 l. per annum, would not and could not reach to maintain a Scholar in Learning▪ Diet, Apparel, and Books. And this Rent, although it be not sufficient to such intent, yet the Son shall have it. And by Dyer, Three years past, such Case was in this Court, scil. Two were boun­den to stand to the Award of certain persons; Who awarded, That the one of them should pay unto the other 20 s. per annum during the Term of 6 years, towards the education and bringing up of [Page 66] such an Enfant; and within two years of the said Term, the En­fant died, so as now there needed not any supply towards his Edu­cation: Yet it was holden, That the said yearly sum ought to be paid for the whole Term after: For the words, Towards his Edu­cation, are but to shew the intent and consideration of the payment of that sum; and are not the words of a Condition.

XCVIII. Mich. 19 Eliz. In the Common Pleas.

IN a Quare Impedit; The Plaintiff declared, That the De­fendant was seised in Fee of the Mannor of Orchard, alias Lydcots-Farm, to which the Advowson is appendant, and pre­sented such a one, &c. And afterwards leased to the Plaintiff the said Mannor per nomen of the Mannor of Orchard, alias Lydcots-Farm, with the appurtenances for 21 years, and the Church be­came void, &c. And the truth of the Case was; That there is the Mannor of Orchard, and within the said Mannor, the said Farm called Lydcots Farm, parcel of the said Mannor, and the Lease was of the said Farm; and not of the said Mannor, and so the Advowson remained to the Lessor, as appendant to the Mannor: In this Case, It was moved, What thing the Defendant should traverse: Dyer, He shall say; That the Advowson is appendant to the Mannor of Orchard, abs (que) hoc, that it is appendant to the Farm of Lydcots: But it seemed to Manwood, That the De­fendant shall say; That the Advowson is appendant to the Mannor of Orchard, and that the Farm of Lydcots, is parcel of the said Mannor, and that he Leased to the Plaintiff the said Farm, with the appurtenances, abs (que) hoc, that the Mannor of Orchard, and the said Farm, are all one; For if he traverse the Appendancy to the Farm of Lydcots, then he confesseth, That the Mannor and Farm are all one, &c. But Dyer doubted of it.

XCIX. Kirlee and Lees Case. Mich. 19 & 20 Eliz. In the Common Pleas.

IN Action upon the Case upon Assumpsit, the Plaintiff decla­red, That the Defendant in Consideration, that the Plaintiff would marry the Daughter of the Defendant, did promise to find to the Plaintiff and his said Wife convenient apparel, meat and drink for themselves and two servants, and Pasture also for two Geldings, by the space of 3 years, when the Plaintiff would re­quire it: And further shewed, That Licet the Plaintiff had married the Defendants Daughter, and that he had required the Defendant to find, ut supra, &c. the Defendant refused, &c. The Defendant said, That he promised to find meat, drink, and apparel for the Plaintiff and his Wife for 3 years, abs (que) hoc, that he promised to [Page 67] find meat and drink for two servants, and Pasture for two Geld­ings: The Plaintiff Replicando, said, That the Defendant did promise to find, &c. for 3 years next following. Vpon which they were at Issue, and found for the Plaintiff. It was moved in Ar­rest of Iudgment, That here is no Issue joyned; For the Plaintiff hath declared upon a promise to find, &c. for 3 years, when the Plaintiff will that require. The Defendant hath pleaded a pro­mise to find apparel, meat and drink for the Plaintiff and his Wife for 3 years, abs (que) hoc, that he promised for two servants, and two Geldings; and now the Plaintiff Replicando, saith, That the Defendant assumed for 3 years next following; so here is ano­ther Assumpsit in the Replication, than that whereof the Plaintiff declared, and so the Plaintiff hath not joyned Issue upon the As­sumpsit traversed by the Defendant, and so there is no Issue joyn­ed, for the Defendant denyeth the Assumpsit whereof the Plaintiff hath declared. And the Plaintiff in his Replication hath affirmed another Assumpsit than that whereof he hath declared; and that is not helped by the Statute of Jeofails; For it is not a mis-joyning of Issue, but a not joyning of Issues; and that was holden by the Court, to be a material Exception. And the Lord Dyer concei­ved, That here is a Departure; for the Plaintiff in his Repli­cation hath alledged another promise, than that whereof he decla­red. Another Exception was, Because that the Plaintiff had not averred in facto, that he had married the Daughter of the Defen­dant, but by an Argument Implicative (Licet;) but that Excep­tion was disallowed; For that the word (Licet) is not a bare Im­plicative, but it is an express Averment; And so it was said,Plow. 127. it had been ruled before. See 2 Mar. Plow. Com. 127, 128. Buckley and Thomas Case.

C. Hill. 19 Eliz. In the Common Pleas.

A Lease for years was, upon Condition,Dyer 45. 1 Roll. 214. 1 Len. 3. That the Lessee should not grant over the Land at Will, or otherwise: He devised the same to his Executors, who accepted the same only as Exe­cutors, and not as Devisees: And yet it was the Opinion of the Iustices, That the Condition was broken, Because he had done as much as lay in him, to have devised the Land.2 Roll. 684. 1 Roll. 24. 9 Co. 94. Stiles Rep. 304, 305, 405. Hutton Rep. 27. Clayton Rep 85. 1 Len. 113. 1 Cro. 126. Owen 94. See 31 H. 8. 45.

CI. Hodgson and Maynards Case. Hill. 19 Eliz. In the Kings Bench.

NOte: It was said by the Iustices in this Case, That if an Executor promiseth to pay a Debt when he hath not Assets, no Action upon the Case lyeth against him upon such promise: but contrary, if he hath Assets. And so it was holden, That if the [Page 68] Heir hath nothing by descent, an Action upon the Case will not lie against him upon such a promise made.

CII. Mich. 20 Eliz. In the Kings Bench.

Co. 3. Inst. 1. Stat. 5. Eliz. 2 Len. 12.AN Action upon the Statute of 5 Eliz. of Perjury, was brought by three; and they declared, That the Defendant being exa­mined upon his Oath before Commissioners, If a Surrender was made at such a Court of such a Mannor of a Copyhold, to the use of A. and B. Two of the Defendants swore, That no such Sur­render was made, &c. Exception was taken to the Declaration, because that the certainty of the Copyhold did not appear upon the Declaration: For the Statute is, That in that case the party grieved shall have remedy; so as it ought to appear in what thing he is grieved, Quod fuit concessum per totam Curiam. Another Exception was taken, because that the Action in such case is given to the party grieved. And it appeareth upon the Declaration, That the surrender in the Negative deposing, of which the perju­ry is assigned, was made to the use of two of the Plaintiffs only; and then the third person is not a party grieved; For he claims nothing by the surrender; and therefore, and because the two par­ties grieved have joyned with the third person not grieved, It was the Opinion of Wray and Southcote, Iustices, That the Writ should abate.

CIII. Mich. 20 Eliz. In the Common Pleas.

1 Len. 263. NOte: It was said by Dyer and Manwood, Iustices, If one be condemned in an Action upon the Case or Trespass, upon Nihil dicit, or Demurrer, &c. And a Writ issueth to enquire of the Damages, and before the Retorn of the Writ, the Defendant dy­eth; The Writ shall not abate for that; For the Awarding of the said Writ is a Iudgment. And Manwood said; In a Writ of Ac­compt, the Defendant is awarded to Accompt, And the Defendant doth Accompt, and is found in arrearages, and dieth; The Writ shall not abate, but Iudgment shall be given, That the Plaintiff shall recover, and the Executor shall be charged with the Arreara­ges; and yet Accompt doth not lie against them.

CIV. Mich. 20 Eliz. In the Common Pleas.

2 Len. 52. 2 Len. 282. Post. 92.IN an Action upon Escape, the Plaintiff is Nonsuit. It was holden by the Iustices, That the Defendant in that case shall not have Costs, by the Statute of 23 H. 8. Note, The words in the Statute, upon any Action upon the Statute, (for any offence or wrong personal supposed to be done immediately to the Plaintiff) Notwithstanding this Action is, Quodam modo an Action within the Statute; scil. by equity of the Statute of Westm. 2. which [Page 69] give expresly against the Warden of the Fleet; Yet properly it is not an Action upon the Statute; for that in the Declaration in such Action, no mention is made of the Statute. Which, see the Book of Entries, 169, 171. And also here there is not supposed any immediate personal Offence, or Wrong to the Plaintiff: and an Action upon the Case, it is not, For then the Writ ought to make mention of the Escape, which it doth not here; And yet at the Common Law before the Statute of Westm. 2. An Action up­on the Case lay upon an Escape; And so by the opinion of Dyer, Manwood, Mounson, Iustices, Costs are not given in this case; and Manwood said; That upon Nonsuit in an Action upon the Statute of 8 H. 6. The Defendant shall not have Costs,1 Len. 282. For that the same is not a Personal Wrong, For the Writ is Disseisivit, which is a real tort.

CV. Mich. 20 Eliz. In the Common Pleas.

IN Debt upon an Obligation to perform certain Covenants, in a pair of Indentures; The Plaintiff assigned the breach in one of the Covenants; scil. That the Defendant should do all re­parations of such a House demised to him; And that he had not re­paired, but suffered the same to decay. To which the Defendant said, That the Plaintiff had acquitted and discharged him of the Reparations. Vpon which the Plaintiff demurred in Law. Manwood, The same is an Acquittal and Discharge of the Re­parations as well for the time past, as for the time to come, by force of the said Covenant, and amounts to as much as if he had Released the Covenant. And it was moved, If the Covenant being broken for want of Reparations, If now that Acquital and Discharge, or Release of the Covenant, should take away the Action upon the Obligation which was once forfeited before? And it was the Opinion of Manwood, That it should not; For if one be bound in an Obligation for the performance of Covenants, and before the breach of any of them, the Obligee releaseth the Cove­nants, and afterwards one of the Covenants is broken, the Ob­ligation is not forfeited, for there is not now any Covenant which may be broken, and therefore the Obligation is discharged: But if the Release had been after the Covenant broken, otherwise: all which, Dyer and Mounson Concesserunt.

CVI. Mich. 20. Eliz. In the Common Pleas.

HVsband and Wife, seised in the right of his Wife of certain Customary Lands in Fee, he and his Wife by Licence of the Lord, make a Lease for years by Indenture rendring Rent, have Issue two Daughters: The Husband dieth; The Wife takes ano­ther Husband, and they have issue a Son and a Daughter: The Husband and Wife die, The Son is admitted to the Reversion, and [Page 70] dieth without Issue. It was holden by Manwood, That this Reversion shall descend to all the Daughters, notwithstanding the half-blood; For the Estate for years which is made by Indenture by Licence of the Lord, is a Demise and Lease according to the Or­der of the Common Law; and according to the nature of the De­vise, the possession shall be adjudged; which possession cannot be said, possession of the Copyholder; For his possession is Customa­ry, and the other is meer contrary, therefore the possession of the one shall not be said the possession of the other; and therefore there is no possessio fratris in this Case: But if he had been Guardian by the Custom, or this Lease had been made by surrender, There the Sister of the half-blood should not inherit. And Meade said, That the Case of the Guardian had been so adjudged. Mounson to the same intent; And if the Copyhold descend to the Son, he is not Copyholder before admittance;1 Len. 174, 175. but he may take the profits, and punish Trepass, &c.

CVII. Hinde and Lyons Case. Hill. 20 Eliz. In the Common Pleas.

2 Len. 11. Dyer. 124. Ante 64.DEbt by Hinde, against one as Son and Heir of Sir John Lyon, who pleaded, Nothing by descent, but the third part of the Mannor of D. The Plaintiff replyed, Assets; And shewed for Assets, That the Defendant had the entire Mannor of B. by de­scent; Vpon which they were at Issue; And it was given in Evi­dence to the Iury, That the Mannor was holden by Knights-Ser­vice, and that the said Sir John the Ancestor of the Defendant by his Will in writing devised the whole Mannor to his Wife, un­til the Defendant his Son and Heir should come to the age of 24 years; And that at the age of the Son of 24 years, his Wife should hold the third part of the said Mannor for the Term of her life, and his Son should have the residue: And if his Son do die before he come to the age of 24 years without Heir of his body, that the Land should remain over to J.S. the Remainder over to another. The Devisor died, the Son came to the age of 24 years: Dyer and Mounson, Iustices, conceived, That here was not any Estate tail, and then for two parts he is not in by descent; For no Estate tail shall rise unless that the Son dieth before his said age, and there­fore the Tayl never took effect, and the Feesimple descends and re­mains in the Son, if not that he dieth before the age of 24 years, and then the whole vests with the Remainder over; but now ha­ving attained the said age, he hath a Fee, and that by descent of the whole Mannor; and then his Plea is false, that but the third part descended. And a general Iudgment shall be given against him as of his own debt; And an Elegit shall issue forth of the moy­ety of all his Lands, as well those which he hath by descent from the same Ancestor, as of his other Lands; And a Capias lieth [Page 71] also against him. But Manwood, Iustice, conceived, That if a general Iudgment be given against the Heir by default, in such case a Capias doth not lie, although in case of a false Plea it lieth: But Dyer held the contrary. And the Writ against the Heir is in the debet & detinet; which proves, That in Law it is his own Debt. And he said, That he could shew a President where such an Action was maintainable against the Executor of the Heir.

CVIII. Hill. 20 Eliz. In the Common Pleas.

A Seised of Lands in Fee, Devised them to his Wife for life; and after her decease, she to give the same to whom she will;Latch 9,39. had issue two Daughters, and died; The Wife granted the Rever­sion to a stranger, and committed Waste; And the two Daughters brought an Action of Waste: It was holden by the Iustices, That by that Devise, the Wife had but an Estate for life, but she had gained authority to give the reversion by his Will to whom she pleased. And such a Grantee should be in by A. and his Will: For A. had given expresly to his Wife for life, and therefore by Impli­cation she should not have any further Estate: But if an express Estate had not been appointed to the Wife; by the other words, an Estate in Feesimple had passed.

CIX. Hill. 20 Eliz. In the Common Pleas.

THe Lessor Covenanted with his Lessee, That the Lessee should enjoy the Lands demised without any lawful Eviction: And afterwards upon a Suit depending in Chancery by a stran­ger against the Lessor for the Land demised; The Chancellor made a Decree against the Lessor, and that the stranger should have the Land. It was moved, If that Decree were a lawfull Eviction by which the Covenant was broken? It was holden by the Lord Dyer, That the same was not any Eviction; For although that in Conscience it be aequum, that the said stranger have the possession; yet the same is not by reason of any right pa­ramount the title of the Lessor; which was in the party for whom it was decreed.

CX. The Marquess of Northamptons Case. Hill. 20 Eliz. In the Common Pleas.

PArre, Marquess of Northampton, took to Wife the Lady Bouchier, the Heir of the Earl of Essex, 1 Roll. 430. who levied a Fine of the Land of the said Lady, Sur Conusans de droit, &c. with a Grant and render to them for life, the Remainder to the right Heirs of the body of the Lady: And afterwards by Act of Parliament, 35 H. 8. it was Enacted, That the said Lady should hold part of [Page 72] her Inheritance, and dispose of the same as a Feme sole, and that the Marquess should have the Residue, and that he might Lease the same by himself without his Wife for 21 years or less, rendring the ancient Rent, being Land which had been usually demised, &c. The Marquess Leased for 21 years, and afterwards durante Ter­mino praedict. Leased the same Land to another for 21 years, to begin after the determination of the first Lease. It was moved in this Case, That this last Lease was void, and that for 3 Causes; 1. Because the Marquess had but an Estate for life, and then it could not be intended that the Statute did enable one who had but such an Estate determinable, to make such a Lease, which perad­venture might not commence in his life-time. 2. The Letter of the Statute is, 21 years, or under; and the word (Under) strong­ly expounded the meaning of the Statute to be, not to extend to such an Estate; For here upon the matter is a Lease for 40 years. 3. Because the Land demised, is the Inheritance of the Wife: And in this Case it was said, That in the Case of one Heydon, such a private Act was strictly construed; which was, That it was Enacted, That all Copies for 3 Lives, granted by the Lord Ad­miral of the Lands of his Wife, should be good. The Admiral granted Leases in Reversion for 3 Lives: And it was holden, That that Grant was not warranted by the Statute. Dyer said, The words are general, Omnes dimissiones, and therefore not to be restrained unto special Leases; scil. to Leases in possession. Man­wood said, A Feme Covert by duresse, joyns in a Lease with her Hus­band, the same shall bind her.

CXI. The Queen and Sir John Constables Case. Hill. 20 Eliz. In the Kings Bench.

5 Co. Constables Case. A Quo Warranto was brought by the Queen against Sir John Constable, who claimed certain Wreck in the County of York; The Defendant pleaded, That Edward Duke of Buck. was seised of such a Mannor, to which he had Wreck appendant, and that he was de alta proditione debito modo attinctus, and that found before the Escheator; And shewed further, That the said Mannor descended to Queen Mary, who granted the same to the Earl of Westmerland, who granted the same to the Defendant: Vpon which, It was demurred. And Exception was taken to the Plea, because the Attainder is not fully and certainly pleaded. It was argued by Plowden, That the Attainder was certainly pleaded, scil. debito modo attinctus; And it is shewed, That the Wreck is appendant to the Mannor, and then if the Defendant hath the Mannor, he hath the Wreck also; and if he hath the Man­nor, it is not material as to the Queen how he hath it, for the Queen doth not claim the same, but impeacheth the Defendant for using there such a Liberty; But if the Heir of the said Duke [Page 73] had demanded the Mannor there against him, the Attainder ought to have been pleaded certainly. And it was said by him, That the Interest of the Queen in the Sea, extends unto the midst of the Sea betwixt England and Spain; But the Queen hath the whole Iurisdiction of the Sea between England and France, because she is Queen of England, France, &c. And so it is of Ireland.

CXII. Hill. 20 Eliz. In the Common Pleas.

TEnant for life made a Feoffment of White-Acre, of which he was seised for life, and made a Letter of Attorny to deliver Livery and Seisin secundum formam Chartae; before Livery, the Tenant purchased the Fee; and afterwards Livery was made: It was resolved by the Court in this Case, That all passed: But if the Feoffment had been of all his Lands in D. and the Let­ter of Attorny accordingly; and before Livery made, the Feoffee had many Lands there; If he purchased one Acre after, the Livery should not extend to that Acre, because the Authority was satisfied by the other Acre.

CXIII. Banks and Thwaits Case. Mich. 21 Eliz. In the Kings Bench.

IN an Action upon the Case, the Case was, That A. had pawned an Indenture of Lease for years, of a Messuage and Lands to Banks; Thwaits, intending to purchase the same, required Banks to deliver him the said Lease, and he would give Banks 10 l. whe­ther he bought it or no, at what time he would request the 10 l. Post. 200. And Banks delivered the same to Thwaits accordingly.Post. 200. And afterwards brought an Action upon the Case, and declared upon the whole matter; and concluded, Licet saepius requisitus, &c. without alledging a request express in certain, and the day and place of it. It was said by Cook, That here the monies did not grow due before Request, nor is payable before Request, and there­fore a Request ought to be made in facto; And so, he said, It was ruled in this Court, in an Action upon the Case, betwixt Palmer and Burroughs; and he said, that the Mony was not due by the Promise, but by the Request. And it was the Opinion of the whole Court, That although it be a duty, Yet it is not a duty payable before Request; And the Request makes a Title to the Action: But if A. selleth to B. a Horse for 10 l. there is a Contract, and a Request in facto, need not be layed. And the Opinion of the Court was also, That upon this matter the Plaintiff could not have an Action of Debt; for there is not any Contract, for the thing is not sold, but it is a Collateral promise grounded upon the delivery: And by Clench, Here the Request is traversable: And afterwards Iudgment was given against the Plaintiff. And it was said, It was so ruled in Alderman Pullisons Case, in the Exchequer.Post. 201.

CXIV. Segar and Boyntons Case. Mich. 21 Eliz. In the Common Pleas.

2 Len. 156.IN Trespass, the Case was this; King Henry the 8th, Anno 27 of his Reign, gave the Mannor of D. to Sir Edward Boyn­ton, Knight, and to the Heirs Males of his body; Sir Edward Boynton had Issue Andrew his eldest Son, and C. the Defen­dant his younger Son, and died: Andrew Boynton Covenan­ted by Indenture with the Lord Seymore, that the said Andrew Boynton would assure the said Mannor to the use of himself for life, the Remainder to the said Lord and his Heirs: The said Lord Seymore in recompence thereof, should assure other Lands to the use of himself for life, the remainder to the use of the said Andrew Boynton in tail; who 37 H. 8. levyed a Fine of the said Mannor without proclamations to two strangers, to the uses according to the said Agreement; and before any Assu­rance made by the said Lord, The said Lord was Attainted of Treason, and all his Lands were forfeited to the King: And af­terwards the said Andrew Boynton made a Suggestion to Queen Mary, of the whole matter; and upon his humble Petition, the said Queen by her Letters Patents reciting the said Mischief, &c. et praemissa considerans, et annuens Petitioni illius, granted to him the Mannor aforesaid; and further de ampliori gratia sua, Relea­sed to the said Andrew Boynton all her Right, Possession, &c. which came to her ratione attincturae praedict', vel in manibus nostris exi­stant, vel existere deberent: After which, viz. 5 Eliz. Andrew Boynton levied a Fine to the Plaintiff with proclamations, and died without Issue. And, the Defendant as Issue in tail entred. Puckering, Serjeant; It is to see, 1. If by the words of the Let­ters Patents of Queen Mary, viz. de ampliori sua gratia, &c. the Reversion in Fee which the Queen had, passed or not. 2. Admit­ting that the Reversion did not pass, Then if the Fine levied by Andrew Boynton, 5 Eliz. to the Plaintiff, the Reversion being in the Queen, be a Bar to the Issue; For when the first Fine was levied 37 H. 8. which was levied without proclamations, the same shall not bind the Issue in tail, neither as to the Right, nor to the Entry, for it is not any Discontinuance, because the Reversion is in the King, as of things which lie in Discontinuance, Rent, Common, &c. For such Fine is a Fine at the Common Law, and not within the Statute of 4 H. 7. And such a Fine is void against the Issue: But if such a Fine without proclamations be levied of a thing which lieth in Discontinuance, then such a Fine is not void, but voidable by a Formedon: And therefore this Fine, in the Case at Bar, being levied without proclamations of Lands entailed, whereof the Reversion is in the King at the time of the Fine le­vied, shall not bind the Issue; And by such Fine the Conusee hath [Page 75] which Fee was forfeited to the Queen by the Attainder of the Lord Seymore, and that the Queen immediately restored to Andrew Boynton, because the Lord Seymore had not according to Agree­ment betwixt them, assured his Lands to the said Andrew Boyn­ton in Recompence; For the Indentures themselves were not sufficient to raise any use. See acc. 1 Mar. Dyer, 96. As to the point he conceived, That nothing passed of the Reversion, For the Grant hath reference to the words, All his Right, Possession, &c. which came to her ratione attincturae, and all the residue of the Grant, ought to have reference to that, to the ratione attincturae praedict. which was the foundation of the whole grant; And here the intent of the Queen was not to other intent, but only to restore Andrew Boynton to the said Mannor, and to his ancient Estate in it; And nothing appears in the said Letters Patents by which it might appear, that the Queen was apprised of her Reversion which she had by descent, and therefore the same cannnot pass by ge­neral words: If the King grants the Goods and Chattels of all those who have done any Trespass for which vitam amittere debent, The Goods of him who is Attainted of Treason, shall not be for­feited or granted by such general words: 8 H. 4. 2. Vid. Roll. Tit. Prerogat. The King grants omnia catalla Tenentium suorum qualitercun (que) damnatorum, the same doth not extend to the Goods of him who is condemned for Treason. See 22 Ass. 49. So in our Case, the Patent shall not serve to two Intents, and not to pass two Interests by these general words; and then nothing passeth but the Fee determin­able which was conveyed to the Lord Seymore, and forfeited by the Attainder. Then it is to be considered, How after the said Grant, the said Andrew Seymore is seised; And he conceived, That he should be in of the said Fee determinable, and not of an Estate in tail, against his own Fine; and then if he be not seised by force of the Tail at the time of the Fine levied, 5 Eliz. the same Fine can­not bind the entail: But admitting, That at the time of the second Fine levied, that he was in of an Estate in tail, yet that Fine shall not bar the Issue; For first, This Fine cannot make any Discon­tinuance, because that the Reversion in Fee is in the King, which is not touched by the Fine. See the Case of Saunders, Where A. makes a Lease for years, to begin at a day to come, and after­wards levies a Fine to a stranger with proclamations, and the 5 years pass, and afterwards at the day of the beginning of the said Lease, the Lessee enters; his Entry is lawful, and he shall not be bounden by the Nonclaim; and so it was adjudged in Saunders and Starkies Case. Vide inde Saffins Case, 3 Jac. Cook 5 Part, 123, 124. After the making of the Statute of 4 H. 7. of Fines, It was much doubted, If the Issues of Common Tenants in tail should be bound by a Fine with proclamations, because upon the death of their Ancestors, they are as new Purchasors per formam Doni. And therefore it was provided by 32 H. 8. That the said Statute of 4 H. 7. should extend to such Common entails; but there was [Page 76] no doubt of an Estate tail of the gift of the King. And see Mich. 15 & 16 Eliz. Rot. 1474. between Jackson and Darcy, in a Par­titione facienda, the Case was, Tenant in tail, the remainder to the King, after the Statute of 32 H. 8. levied a Fine with procla­mations, and it was adjudged, That the same should bind the Issues; The Act of 32 H. 8. doth not extend but where the Rever­sion is in the King, but no mention is there of a Remainder, be­cause that the words of the said Act are general of all Tenants in tail; The makers of the Act perceiving, That it might be doubted, that the generality of the words might include all Estates tails of the gift of the King, they restrained the words in a special man­ner; as appeareth by the last Proviso of the same Act, Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Mannors, &c. before the levying of the said Fine, gi­ven, granted or assigned to the person or persons levying the said Fine, or to any of his or their Ancestors in tail by Letters Pa­tents, or Act of Parliament, the Reversion whereof at the time of the levying of such Fine was in the King: And so such Estates are excepted, And that in such Cases, where such Fines are levied, they shall be of such force as they should be if the said Act had not been made. And therefore it seemed to the said Parliament, That such Estate tails of the gift of the King were not bounden by the Statute of 4 H. 7. for otherwise, the said Proviso or Exception had been frivolous. Walmesley, Serjeant, to the contrary; And he agreed, That the first Fine was not any Discontinuance; and yet he conceived it is not altogether void against the Issues before that they entred; For no right remains in the Conusor against his Fine: And also he conceived, That this Clause, ex uberiori gra­tia, did extend to pass more than passed before; For he conceived, That the Queen intended more liberally, viz. the Reversion; For this is not any matter of Prerogative, but the same is a matter of Interest, which might also in the Kings Case pass out of the King by general words. See 3 H. 7. 6 & 7 Br. Patents, 48. A Grant of the King ex insinuatione, doth not hinder the force of the words, ex mero motu. And it was the Opinion of the whole Court, That the Reversion which was in the King did not pass by that Grant; For the whole scope of the Patent was, as he conceived, to grant only that which the King had then ratione attincturae. Anderson conceived the Patent insufficient, because the Petition was not full and certain; Also he said, That ex speciali gratia, &c. would not help this Case; For the Estate tail is not recited, but only that he was seised de Statu haereditario, &c. so the Queen was de­ceived, &c. Periam contrary, The Queen was advised of the Mis­chief, and granted such Estate with which he parted by the Fine. And as to the other Point, Walmesley conceived, That the Fine with proclamations should bind the tail: And as to the Objection which hath been made, That the Conusor at the time of the Fine levied, was not seised by force of the entail; The same had been a [Page 77] good matter to have alledged to avoid a Common Recovery in the Tenant to the Praecipe, but not to this purpose: For if there be Tenant in tail, and he levieth a Fine, although he was not seised at the time of the Fine levied by force of the entail, yet such a Fine shall bind the issue; So if Tenant in tail discontinueth, and disseiseth the Discontinuee, and so levies a Fine. And he concei­ved, That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. See 19 H. 8. 6 & 7. Where it is holden, That the Issue in tail is bound by the Statute of 4 H. 7. And where it hath been Objected, That it doth not extend but to such Fines which make Discontinuance at the Common Law, The same is not so: For if Tenant in tail of a Rent, or Common, levieth a Fine with proclamations, it is clear, that the issues shall be barred by it. And he much relyed upon 29 H. 8. Dyer, 32. Tenant in tail of the Gift of the King levieth a Fine, or suffereth a Common Re­covery, although it be not a Discontinuance, because that the Re­version is in the King; yet it is a bar unto the Issue. But Note, That that was before the Statute of 34 H. 8. See Wisemans Case, 27 Eliz. Cook 2 Part. And see the Lord Staffords Case, 7 Jac. Cook 8 Part, 78.

CXV. Mich. 21 Eliz. In the Common Pleas.

A Man seised of Lands called Hayes, 3 Cro. 674. 2 Cro. 21, 22 which extended into two Towns, A and B. Devised Hayes-Land in A. to his Wife for life, and after to his Son; and if the Son die without issue, then Hayes-Land shall remain to his 3 Daughters, &c. The Son died without issue: It was the Opinion of Anderson and Periam, Iusti­ces, That all Hayes-Land should not pass by the said Devise, but only that which was in A.

CXVI. Henry and Brode's Case. Mich. 21 Eliz. In the Common Pleas.

IN an Action of Trespass, the Plaintiff declared, That the Defendant simul cum J. S. and another Clausum suum fregit; 1 Len. 41. And Exception was taken to it, because here it appeareth upon the Plaintiffs own shewing, That the Trespass whereof, &c. was made by the Defendant and another; and therefore the Writ brought a­gainst Brode only, was not good. But if it had been simul cum aliis ignotis personis, It had been good enough. But here the Plaintiff hath confessed another person trespassor with the Defen­dant. See 2 H. 7. 15. 8 H. 5 5. 14 H. 4. 22. Yet afterwards in the prin­cipal Case, Iudgment was given for the Plaintiff.

CXVII. Barker and Taylers Case. Mich. 21 Eliz. In the Common Pleas.

3 Co. Sir George Browns CaseTHe Case was; A Woman Tenant in tail within the Statute of 11 H. 7. accepted a Fine Sur Conusans de droit come ceo, &c. and by the same Fine rendred the Land to the Conusor for 1000 years: It was moved, If this Conveyance and Disposi­tion was within the penalty of the Statute: For the Statute speaks of Discontinuances, &c. And it was the clear Opinion of the Court, That the same is within the Statute, for by such pra­ctice, the meaning of the Statute might be defeated: And if such Render for a 100 years should be good, by the same reason for 1000 years, which is as great a mischief and as dangerous to those in Reversion, as Discontinuances. And by Rhodes, Iustice, It hath been adjudged, That if a Woman who hath title of Dower, if be­fore she be endowed, she will enter and levy a Fine, the same is within the said Statute, and yet she is not Tenant in Dower. See 5 Mar. Dyer 148. Penicocks Case. And 36 Eliz. Cook 5 Part. Sir George Brown's Case.

CXVIII. Mich. 21 Eliz. In the Kings Bench.

2 Len. 221. Ante 9. A By his last Will, willed, That his Lands should descend to his Son; but willed, That his Wife should take the profits thereof untill the full age of his said Son of 21 years to maintain, and bring him up, and died; The Wife took Husband, and died, during the nonage of the Son: It was the opinion of Wray and Southcote, Iustice, That the second Husband should not have the profits until, &c. For nothing is devised to the Wife but a Confidence; and she is as a Guardian or Bailiff, to aid the En­fant, which by her death is determined, and cannot accrue to the Husband; But if the Husband had devised the profits of the Land to the Wife, until the age of the Enfant, for to bring up and edu­cate, Ut supra. Wray said, The same amounted to a devise of the Land and so a Chattel in the Wife, which should accrue to the Husband.

CXIX. Stamps Case. Mich. 24 Eliz. In the Common Pleas.

THe Case was: John Stampe being possessed of a Term for years granted the same to Thomas Stampe his Brother 12 May 20 Eliz. And afterwards, 8 Octob. 21 Eliz. he himself being in possession of it, Mortgaged the same to one P. who suffer­ed him to continue his possession: Thomas Stampe granted his [Page 79] Estate to John Stampe, who mortgaged the same to one G. who suffered the said John Stampe to continue in possession until 10 December, 22 Eliz. G. entred, John Stampe came to the said P. and requested him, that he would grant all his Estate to B. and C. to whom the said John Stampe was endebted for security of their Monies; To whom the said P. said, That if he would find him any other surety for his Debt, he is contented so to do. And John Stampe offered to the said P. the said B. and C. and he accepted the same, and at the request of the said John Stampe, granted his Interest to them 2 Feb. 22 Eliz. P. having notice of the Grant before made to the said G. Vpon which G. enformed against P. upon the Statute of 32 H. 8. It was holden in this Case by Periam and Meade, Iustice, That P. was not within the penalty of the Statute: For P. granted his Interest to B. and C. at the suit and at the request of John Stampe, who was the Mortgager, for assurance of his Debt which he ought to them; And therefore it shall not be intended, that that Grant was made for any mainte­nance, or for any unlawful cause against the Statute. And also John Stampe who granted unto P. had possession, and received the Issues and Profits of the said Lands for a whole year before the Grant, notwithstanding that he was not in possession by a whole year next before the day of the date of the Grant.Godb. 450. As if a Man be in possession, or hath received the Issues and Profits for a whole year, and afterwards a stranger enters upon him, and hath the possession for the space of a Quarter of a year, or half a year; yet he who was in possession by a year before, may grant his Interest without danger of the Statute, &c.

CXX. Pasch. 24 Eliz. In the Kings Bench.

NOte: Per totam Curiam; 2 Len. 35. A man made his Will in this manner; scil. 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 enough by Averment of the name of the Devisor. And for proof that the same is his Will, If one lying in extremis, having an intent to devise his Lands by Word, makes such devise, but doth not command the same to be put in writing, but another with­out the knowledge or Commandment of the Devisor, putteth it in writing in the life-time of the Devisor, the same is a good Devise; For it is sufficient, if the Devise be reduced into writing during the life of the Devisor.

CXXI. Pepy's Case. Pasch. 25 Eliz. In the Common Pleas.

WAste was brought by F. and his Wife against Pepy; and declared, That the said Pepy was seised, and en­feoffed certain persons to the use of himself for life, and afterwards to the use of the Wife of the Plaintiff, and her Heirs: The Defendant pleaded, That the said Feoff­ment was to the use of himself and his Heirs in Fee, &c. absque hoc, that it was to the uses, as in the Count; Vpon which they were at Issue: And it was found by Verdict, That the said Feoff­ment was to the uses contained in the Count; but further found, That the Estate of the Defendant by the Limitation of the use was priviledged with the impunity of Waste; scil. without Im­peachment of Waste. It was moved, If upon that Verdict, The Plaintiff should have Iudgment. Anderson and Rhodes, Iustices, conceived, That he should, for that the matter in Issue is found for the Plaintiff; and that is, the Feoffment to uses contained in the Count, and this impunity of Waste is a Forreign matter not within the Charge of the Iury; and therefore the finding of the same is but matter of surplusage: As if I plead a Feoffment of J. S. to which the other pleads, That he did not enfeoff, and the Iury find a Conditional Feoffment, the Court shall not respect the finding of the Condition, for it was not in Issue, and no ad­vantage shall be ever had of such a Liberty if it be not pleaded, 30 H. 8. Dyer 41. In Dower, the Tenant pleaded, Ne un (que) seisi que Dower, &c. The Tenant pleaded, That before the Cover­ture of the Demandant, one A. was seised, and gave the Land whereof Dower is demanded to the Husband of the Demandant in tail, who made a Feoffment; A stranger took the Demandant to Wife, took back an Estate in Fee, and died seised, having Issue inheritable: Now although upon the truth of the matter she is n [...]t Dowable de jure, yet forasmuch as the parties were at Issue upon a point certain, no forrein, nor strange matter not in Que­stion betwixt the parties shall be respected in the point of Iudg­ment: But if the Defendant had pleaded it in Bar, he might have foreclosed the Demandant of her Dower. See 38 Ass. 27. 47 E. 19. In a Praecipe quod reddat upon the default of the Te­nant, came one and shewed, How that the Tenant who made de­fault, was but Tenant for life of the Lands in demand, the Re­version in Fee to himself, and prayed to be received: The De­mandant counterpleaded the Resceit, Dicendo, That the Te­nant had Fee, &c. Vpon which, Issue was taken: And it was found, That neither the Tenant, nor he who prayed to be recei­ved, had any thing in the Land. And in that Case, The Court did not regard the matter which was superfluous in the Verdict; For [Page 81] they were at Issue upon a point certain; scil. whether the Tenant was seised in Fee: For it is confessed of the one side, and of the other, that he had an Estate for life, and of that matter the Iury was not charged, and they are not to enquire of that; And so it is found against the Demandant, by which the Resceit was grant­ed. See 7 H. 6. 20. The parties were at Issue upon a Dying seised; which is found by Verdict; but the Iury find further, That the other party made continual Claim: The said continual Claim shall not be respected in point of Iudgment, because it was not pleaded in Avoidance of the Disceit, &c. Windham, Iustice, to the contrary, because it appeareth to us upon the Verdict, That the Plaintiff hath not cause of Action, and therefore he shall not have Iudgment: As in Detinue, the Plaintiff declares upon a Baylment by his own hands; The Defendant pleads, Ne De­tinue pas, the Iury find the Detinue but upon Baylment by another hand: In that case notwithstanding that the Detinue be found; yet the Plaintiff shall not have Iudgment. But Anderson, Rhodes, and Periam conceived, That in the principal Case Iudgment should be given for the Plaintiff: For in no case the party shall have ad­vantage of that liberty of impunity of Waste, if he doth not plead it; And the Iurors are not to meddle with any matter which is not in issue; and if they do, It is but matter of surplusage, and to no purpose; and afterwards, Iudgment was given for the Plain­tiff. See the Number Roll, Pasch. 25 Eliz. Rot. 602.

CXXII. Skipwith's Case. Pasch. 20 Eliz. In the Common Pleas.

IN an Action of Trespass: It was found by a special Verdict;Godbolt 14, 143. Co. of Copy-holds 94. That the Lands were Copy-hold Lands. That the Custom of the Mannor was, That Quaelibet Foemina Viro Co-operta pote­rit devise Lands, of which she was seised of an Estate of Inheri­tance in Fee simple according to the Custom to her Husband; And also Surrender the same in the presence of the Steward and 6 other of the Tenants. And it was further found, That one J.S. was seised of the Copy-hold Lands, wherein the Trespass was; And that he had Issue 2 Daughters and died seised of the said Lands: And that after his Decease his two Daughters en­tred into the said Lands, and afterwards, they both took Hus­bands; And that afterwards, one of the said Daughters made a Will in writing, and by her said Will, in the presence of the Steward, and six of the Tenants, she Devised her part of the said Copy-hold Lands to her Husband and his Heirs; and at the next Court, surrendred the said Copy-hold Lands in the presence of the Steward and six other of the Tenants, to the uses in her Will expressed, and shortly after she died; and that after her death, [Page 82] her Husband was admitted to the said part of her Lands: who con­tinued the possession thereof; And the Husband of the other Daugh­ter and his Wife entred upon him: Vpon whom, he re-entred; And the Husband brought Trespass. This Case was argued at the Bar, by Rhodes: And he said, That the Custom was not good; neither for the Devise, nor for the Surrender. First, for the incertainty of the Estate, what Estate she might Devise, for that is not expressed in the Custom; but generally that she might Devise her Copyhold Lands of Inheritance, without expressing for what Estate. And secondly, the Custom is not good; for that it is against reason, that the Wife should surrender to the use of her Husband; And that a Custom to devise is not good where it is incertain, he vouched many Cases; As 13 E. 3. tit. Dum fuit in­fra aetatem. 3. The Tenant said, That the Lands lay in the County of Dorset, where the Custom is, That an Enfant might make a Grant or a Feoffment when he could number 12 d. and because it is incertain when he could do it, It was holden to be a void Custom. So 19 E. 2. tit. Gard. 127. In a Ravishment of Ward, It was alledged, that the Custom was, That when an Enfant could measure an Ell of Cloath, or number 12 d. that he should be out of Ward; And it was holden to be a void Custom for the incertainty: Also he said, That in the principal Case, the Custom was void; for that it was against reason, that the Wife should surrender to her Husband; for every Surrender is a Gift: and a Woman cannot give unto her Husband; for the Wife hath not any disposing Will, but the Will of her Husband only. And there­fore the Case is in 21 E. 3. That if the Husband be seised of Lands in the right of his Wife; and he maketh a Feoffment in Fee of the Lands, and the Wife being upon the Lands doth disagree, and saith, She will not depart with the Land during her life; yet the Feoff­ment is a good Feoffment, and shall bind the Wife during the life of the Husband. And see 3 E. 3. Br. tit. Devise, 43. That a Feme Covert cannot Devise to her Husband, for that should be the Act of the Husband to convey the Lands to himself. And whereas the Case in 29 E. 3. was Objected against him, where the Case was, That a Woman being seised of Land deviseable, took a Husband, and had Issue by him; and the Wife Devised her Lands to her Husband for his life, and died; and a Writ of Waste was after­wards brought against him: And it was there holden, That the Writ did lie. He said, That that Case did make rather for him than against him, for that Case proves, that the Husband did not take the Land by vertue of the Devise in his own right; but that he held the Lands having Issue by the Wife as Tenant by the Courtesie, and so under another Title; and therefore it appear­eth, that the Writ of Waste was there brought against him as Tenant by the Courtesie. Also he said, That the Devise was void by the Statute of 34 H. 8. Cap. 5. where it is Enacted, That Wills and Testaments made of any Lands, Tenements, &c. [Page 83] by Women Coverts shall not be good or effectual in the Law; and he said, That that Statute did extend to Copyhold Lands: But as to that, all the Iustices did agree, That Copyhold Lands were not within the words of that Statute. But Anderson said, That the Equity of that Act did extend to Copyholds: And further Anderson said, That the Prescription, or Custom in the principal Case was not good; for it is layed to be, That Quaelibet Foemina Viro Co-operta poterit, and it ought to be potest; and by the Custom have used to Devise to the Husband: And a Pre­scription must be in a thing done, and not in posse. Also he said, That the Custom if it were good, is not well pursued; For the Custom is, that she may Devise and Surrender in the presence of the Steward and six Tenants, and that must be intended to be done all at one time; for the words of a Custom are to be per­formed, if it may be: but in the principal case, the Devise is laid to be at one time, and the Surrender at another time, and so it is not in pursuance of the Custom: But to that it was not answered. But then it was said, Admit that the Custom to devise, and the Devise were not good; yet the Action did not lie against the De­fendant, because that the Husband was admitted, and his Entry into the Land was countenanced by a lawful Ceremony; and also he was Tenant in Common with the other Husband by such Entry. It was adjourned.

CXXIII. Rosse's Case. Mich. 26 Eliz. In the Kings Bench.

IN Trespass brought by Rosse, for breaking of his Close, and beating of his Servant, and carrying away of his Goods:Post. 94. Vp­on Not guilty pleaded, the Iury found this special matter; scil. That Sir Thomas Bromley, Chancellor of England, was seised of the Land where, &c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish; by whose Com­mandment the Defendant entred. It was moved, That that Te­nancy in Common betwixt the Plaintiff, and him in whose right the Defendant justified, could not be given in Evidence; and so it could not be found by Verdict, but it ought to have been pleaded at the beginning. But the whole Court were clear of another Opi­nion; and that the same might be given in Evidence well enough. It was further moved against the Verdict, That the same did not extend to all the points in the Declaration, but only to the break­ing of the Close, without enquiry of the battery, &c. And for that cause, it was clearly holden by the Court, That the Verdict was void; And a Venire facias de novo was awarded.

CXXIV. Absolon and Andertons Case. Mich. 25 & 26 Eliz. Rot. 479. In the Kings Bench.

WIlliam Absolon Master of the Savoy, and the Chaplains there, brought Debt against Anderton; The Case was, That the said Master and Chaplains leased Lands to the Defen­dant for certain years; and afterwards he accepted of them an Indenture of Bargain and Sale to him and his Heirs, by express words of Bargain and Sale, without other words; And one of the Masters of the Chancery within the 6 months came unto them into their Chapter-house, and before him they acknowledged the said Indenture to be their Deed, and prayed that it be enrolled; which was done accordingly. It was moved, If that acknowledg­ment and Enrollment were good or not; or if the Master and the Chaplains ought to have appointed one by their Warrant, to be their Attorny, to acknowledge the said Deed? And it was also moved,1 Len. 184. If there needed any Enrollment at all of it, because An­derton had then an Interest in the Land for years; in which case it is to be considered, If the words Barganizavi & Vendidi, shall be of such effect, as the words Dedi & Concessi? And it was said by the Court, That a Warrant of Attorny to acknowledge a Deed were a strange thing. And it was agreed, That the Indenture be­ing once Inrolled, it was not material by what means it was In­rolled; but was good being done.

CXXV. Savell and Badcocks Case. Mich. 26 Eliz. In the Kings Bench.

SAvell brought an Action of Trespass against Badcock, and de­clared, That Edw. Savell was seised of the Mannor of D. and leased the same for years to Henry Savell, who died, having made the Plaintiff his Executor, who entred, and was possessed until the first day of January, at which time the Trespass was done. The Defendant pleaded, Not guilty. And it was given in Evidence on the Plaintiffs part, That the said Ed. Savell was seised, and leased to the said Henry Savell for years, who so posses­sed, reciting the said Lease, Demised the said Mannor to Sir William Cordell, Master of the Rolls, to have to him immedi­ately after the decease of the said Henry for so many years of the said Term which at the time of his death should be unexpired, if Dorothy the Wife of the said Henry should so long live: Henry died, Sir William Cordell entred; Dorothy died within the Term; the Plaintiff the Executor of Henry entred, and was possessed until the first day of Januarii, 23 Eliz. at which day the Trespass was done. On the Defendants part it was given in Evidence, That [Page 85] after the Grant to Sir William Cordell, the said Henry and Ed­ward joyned in a fine Sur Conusans de droit, &c. to a stranger, who granted and rendred the Land to the said Henry and his Heirs, who devised the same to the said Dorothy his Wife for life, the remainder to Cordell Savell in tail, the remainder over, and died; Dorothy entred, and died; Cordell Savell, 22 Eliz. conveyed the Mannor by Fine to one Williamson, who entred; and afterwards and before the Trespass aforesaid, viz. 14 January, 23 Eliz. lea­sed to the Defendant for years, by force of which the Defendant entred. And upon this Evidence, there was a Demurrer in Law. And it was argued by Shuttleworth, who was made Serjeant the last Term. And he said, That the Demise made by Henry Savell is not in the inconveniency of the maxim, that Henry by the said Grant should reserve a lesser Estate to himself, than he had before; For here by this Grant, no present interest passeth by Sir William Cordell, but the effect of the Grant rests upon a Contin­gency; scil. if he himself dieth within the Term, &c. until which time the whole interest of the Term doth remain in the said Henry Savell subject to the Contingency aforesaid, and amounts to so much; as if the said Henry had granted the same to Sir William Cordell, if he himself should die within the Term: in which Case, it is a limitation when the said Grant shall take effect. As if I grant unto you my Lease for so many years as J.S. shall name, the same is a good Grant to take effect upon the naming of J.S. Then the Case being so, When Henry Savell the Lessee, and Edward Savell the Lessor joyn in a Fine, ut supra, now the possibility of the remnant of the Term which upon the death of Henry Savell and Dorothy his Wife within the Term might accrue to the Executors of the said Henry Savell, is not extinct by the Fine, but doth remain Quodam modo in Henry Savell, to vest in his Executors, if it should happen; And here is not any conclusion by the Fine in this Case; for Henry at the time of the Fine had not in him any Interest, which is now claimed, and so cannot be bound by the Fine: For the In­terest in respect of which the Plaintiff hath cause of Action, begin­eth after the death of Henry who levied the Fine; and first accrueth to his Executors, and so shall not be touched by the Fine: and therefore if such a Lessee for years granteth his Term to J.S. Proviso, That if J.S. dieth within the Term, that he himself shall have it again; and afterwards the Grantor joyns with his Lessor in a Fine, and afterwards within the Term J.S. dieth, now the Grantor notwithstanding the Fine shall have the residue of the Term; Then, when the Conusee by the Fine regrants the Land to Henry in Fee, that possibility to have after the death of the Do­nor cannot be drowned in the Fee simple for the reason aforesaid; And then when Henry deviseth the same to his Wife, that possibi­lity doth pass to Dorothy, because it was never in the Devi­sor; and then when Dorothy dieth within the Term, the Residue of the said Term shall accrue to the Plaintiff as Executor of [Page 86] Henry. Cook, contrary, And he held, The Grant to Sir Wil­liam Cordell is utterly void; And he agreed, That Grants al­though in themselves they be uncertain; yet if they may be re­duced to certain, they are good: but here is no expectance of any certainty in the life of Henry; for the Term limited to Sir Wil­liam Cordell, is not to begin till the death of Henry, and is to end upon the death of Dorothy, so as here is not any certain beginning, nor certain end; and here this Grant cannot be reduced to any Certainty during the life of the Grantor, and so for that cause is void, See Plow. Com. 6 Eliz. Say and Fullers Case, 273. by Weston, Iustice, If A. makes a Lease for so many years as J.S. shall name, if J.S. in the life of A. name a certain number of years, then the Lease is good; but if the Lease had been for so many years as my Executors shall name, that can never be made good in my life; And upon that reason it is, That an Attornment ought to be made in the life of the Grantor, or else no Reversion shall pass. So 33 E. 3. Entry, 79. A Bishop aliens, and after his death, the Dean & Chapter confirms, it is a void Confirmation. And 7 E. 6. Br. Grants, 154. A Man possessed of a Lease for 40 years, grants so many of the said years which shall be to come at the time of his death, it is a void Grant for the incertainty. Afterwards, Shuttleworth moved another point, viz. The Plaintiff hath declared of a Trespass done, 1 Januarii, 23 Eliz. The Defendant shews in Evidence, a Lease for years to him made 14 Januarii, the same year, which is 13 days after the Trespass whereof the Plaintiff hath declared, and it shall not be intended that the Plaintiff had another Title than that which he hath alledged; and forasmuch as he hath not disclo­sed in himself any Title Tempore transgressionis the Plaintiff should punish him in respect of his first possession without any other Title. And although it may be Objected, That where the Defen­dant hath given in Evidence, That Williamson leased to the De­fendant, that is not sufficient; and the words subsequent 14 Janu­arii, are void as a nugation and matter of surplusage; Truly, the Law is contrary; for rather those words ante Transgressionem shall be void, because too general, and shall give way to the sub­sequent words after the videlicet, because they are special and certain: As the Case late adjudged; The Archbishop of Canter­bury leased three parcels of Land, rendring Rent of 8 l. per annum; viz. for one parcel, 5 l. for another, 50 s. and for the third, 40, which amounts to 9 l. 10 s. It was adjudged, That the videlicet, and the words subsequent concerning the special re­servation of the Rent, was utterly void, because contrary to the premisses, which were certain, viz. 8 l. and that the Fermor should pay but 8 l. according to the general reservation: but in our case, the words precedent are general, i. e. ante Transgressionem, and therefore the words subsequent, which are special and certain, shall be taken, and the general words rejected; As in Trespass, the Defen­dant pleads, That A. was seised of the Land where, and held it of [Page 87] the Defendant; and that the said A. 1 die Maii, 6 Eliz. aliened the said Land in Mortmain, for which he (within a year after) viz. 4 Maii, Anno 7 Eliz. entred, now the same is no bar; for upon the evidence it appeareth, that the Lord hath surceased his time, and the words, (within the year) shall not help him, for they are too general; and therefore, at the subsequent words (viz. &c.) Cook on the Defendants part took Exception; For it appeareth here upon the Evidence of the Defendant, which is confessed by the Demur­rer of the Plaintiff, That upon this matter the Plaintiff cannot punish the Defendant for this Trespass; for he was not an imme­diate Trespassor to the Plaintiff; for the Plaintiff hath declared upon a Trespass done 1 Januarii, 23 Eliz. And it is given in Evidence on the part of the Defendant, and confessed by the Plain­tiff, &c. That 22 Eliz. Cordell Savell levied a Fine to Williamson, by force of which the said Williamson entred, and was seised; and so seised, 14 Januarii, 23 Eliz. leased to the Defendant: Now up­on this matter the Plaintiff cannot have Trespass, but the De­fendant; for Williamson was the immediate Trespassor to him; for he entred 22 Eliz. And at length, after deliberation had of the premisses by the Court, The Court moved the Plaintiff to discon­tinue his suit, and to bring de novo a new Action, in which the matter in Law might come into Iudgment without any other Ex­ception. But the Plaintiff would not agree to it. Wherefore it was said by Wray, Chief Iustice, with the consent of his Com­panions, Begin again at your peril; for we are all agreed, That you cannot have Judgment upon this Action.

CXXVI. Mich. 26 Eliz. In the Kings Bench.

THe Case was; A. made a Feoffment in Fee to the use of his younger Son in tail; and after to the use of the Heirs of his body in posterum procreand. and at the time of the Feoff­ment he had Issue two Sons; and after the Feoffment had Issue a third Son: The younger Son died without Issue, Vpon a Mo­tion at the Bar, it was said by Wray, Iustice, That after the death without Issue of the second Son, the Land should go to the third Son born after the Feoffment, for this word (in posterum) is a forcible word to create a special Inheritance; without that, it had been a general tail.

CXXVII. Smith and Smith's Case. Mich. 26 Eliz. In the Kings Bench.

LAmber Smith Executor of Tho. Smith, brought an Action up­on the Case against John Smith, That whereas the Testator having divers Children Enfants, and lying sick of a mortal sick­ness, being careful to provide for his said Children Enfants; The Defendant in Consideration the Testator would commit the Education of his Children, and the disposition of his Goods after his death during the minority of his said Children, for the Education of the said Children to him, promised to the Testator, to procure the assurance of certain Customary Lands to one of the Children of the said Testator: And declared further, That the Testator thereupon Constituted the Defendant Overseer of his Will, and Ordained and appointed by his Will, That his Goods should be in the disposition of the Defendant, and that the Testa­tor died, and that by reason of that Will, the Goods of the Testa­tor to such a value came to the Defendants hands to his great profit and advantage. And upon Non Assumpsit pleaded, It was found for the Plaintiff: And upon Exception to the Declaration in Arrest of Iudgment for want of sufficient Consideration, It was said dy Wray, Chief Iustice, That here is not any benefit to the Defendant, that should be a Consideration in Law, to in­duce him to make this promise; For the Consideration is no other, but to have the disposition of the Goods of the Testator pro edu­catione Liberorum: For all the disposition is for the profit of the Children; and notwithstanding, That such Overseers commonly make gain of such disposition, yet the same is against the intend­ment of the Law, which presumes every Man to be true and faith­ful if the contrary be not shewed; and therefore the Law shall in­tend, That the Defendant hath not made any private gain to himself, but that he hath disposed of the Goods of the Testator to the use and benefit of his Children according to the Trust re­posed in him. Which Ayliffe, Iustice, granted. Gawdy, Iustice, was of the contrary Opinion. And afterwards by Award of the Court, It was, That the Plaintiff Nihil Capiat per Billam.

CXXVIII. Amner and Luddington's Case. Mich. 26 Eliz. Rot. 495. In the Kings Bench.

A Writ of Error was brought in the Kings Bench by Amner a­gainst Luddington, Mich. 26 Eliz. Rot. 495. 2 Len. 92. 8 Co. 96. And the Case was, That one Weldon was seised, and leased to one Peerepoint for 99 years, who devised the same by his Will in this manner: viz. I Bequeath to my Wife the Lease of my House during her life; and after her death, I will it go amongst my Children unpreferred. Peerepoint died, his Wife entred, and was possessed virtute lega­tionis praedictae, And took to Husband one Fulsehurst, against whom Beswick recovered in an Action of Debt 140 l. Vpon which Reco­very, issued a Scire facias; and upon that a Vendit' Exponas; upon which the Sheriff sold the Term so Devised to one Reynolds: Fulsehurst died; his Executor brought Error, and reversed the Iudgment given against the Testator at the Suit of Beswick; the Wife re-entred, sold the Term, and died; Alice a Daughter of Peerepoint, unpreferred, entred: And upon this matter found by Special Verdict in the Common Pleas; The Entry of Alice was adjudged lawful. Vpon which Iudgment, Error was brought in the Kings Bench: And it was argued upon the words of the De­vise, because here the Lease is not Devised, but all his Interest in the thing Devised: And it is not like to the Case between Welden and Elkington, 20 Eliz. Plow. Com. 519. where the Case was, that Davies being Lessee for years, Devised, That his Wife should have and occupy his Land demised for so many years as she should live. Nor unto the Case betwixt Paramour and Yardley, 21 Eliz. Plow. Com. 539. For there the Lessee Devised, That his Wife should have the Occupation and Profits of the Lands, until the full age of his Son; For in those Cases, the Land it self is quodam modo devised: But in our Case, all the Estate is De­vised; i. e. the Lease it self. And also in those two Devises, a certain person is named in the Will, who should take the residue of the Term which should expire after the death of the Wife; but in the Case at Bar, no person in certain is appointed, &c. but the Devise as to that is conceived in general words, Children unpre­ferred; Ergo, neither any Possibility, nor any Remainder is in any person certain; therefore all the whole Term is intirely in the Wife, and then she may well dispose the whole. But the whole Court was to the contrary, and that in this Case the Possibility should rise well enough upon the death of the Wife, to the Daugh­ter Alice unpreferred. Another Point was moved; If the said Term being sold in the possession of the Wife of the Devisor, by force of the Execution aforesaid; If now the Iudgment being reversed, the sale of the Term should be also avoided; for now the party is to be restored to all that which he had lost. And by Cook it was [Page 90] argued, That notwithstanding the reversal of the Iudgment, the sale should stand; For the Iudgment for the Plaintiff in a Writ of Error is, That he shall be restored to all that which he lost ratione Judicii praedict. and the Iudgment was, That the Plain­tiff should recover 140 l. and therefore by the Iudgment in the Writ of Error, he shall be restored to so much; but the mean Act, scil. the Sale of the Lease shall stand, and shall not be de­feated and avoided: As 7. H. 6. 42. A Statute Staple is bailed in Owel Mayn, the Conusee brings Debt against the Bailee, and hath Iudgment to recover the Statute, and upon that Suit he had Execution, and the Bailee brought a Writ of Error to re­verse the Iudgment in Detinue, yet the Execution shall stand, and an Audita Querela doth not lie for the Conusor. And see 13 E. 3. Fitz. tit. Bar. 253. Accomptant found in arrearages, committed to the Goal, escaped; and reversed the Iudgment given against him in the Accompt Ex parte talis: yet an Action upon the Escape did lie. And as to that Point, the whole Court was of the same Opinion with Cook: But that Point did not come in Iudgment: For by the sale, nothing passed but the Interest in praesenti which was in the Wife of the Devisor, but the Possibility to the Children unpreferred was not touched by it. And afterwards the Iudgment was affirmed.

CXXIX. Bunny and Bunny's Case. Hill. 26 Eliz. In the Common Pleas.

IN an Action of Covenant between Bunny and Bunny, the Plain­tiff declared, That the Defendant had Covenanted to find un­to the Plaintiff, Meat and Drink at the House of the Defendant. The Defendant pleaded, That he was always ready to find the Plaintiff Meat and Drink, if he had come to his House to have ta­ken it, Et de hoc ponit se super Patriam: And it was found for the Plaintiff; And in this Case, the Court awarded, That the par­ties should replead; For in all Cases where the Defendant pleads matter of excuse not contained in the Declaration as here, he shall say, Et hoc paratus est verificare, in the perclose of his Plea: But if the Defendant had pleaded, That he had given the Plaintiff according to the Covenant, Meat and Drink, then the Conclusion of his Plea had been good, Et de hoc ponit se super Patriam, &c.

CXXX. Hill. 26 Eliz. In the Kings Bench.

IN an Action upon the Case, supposing certain Goods to have come to the hands of the Defendant, and that he had wa­sted them, and shewed in what manner: The Defendant pleaded Not guilty; And it was found by Verdict, That the Goods, &c. came to the Defendants hands, and that he had wasted them, but in another manner than the Plaintiff had declared: It was the Opinion of the whole Court, That upon this Verdict, the Plain­tiff should not have Iudgment. As in an Action of Trespass, the Plaintiff declared, That the Defendant had distrained his Horse, and travelled riding upon him; And the Iury found, That the Defendant did distrain the Horse, and killed him; In that case, it was holden, The Plaintiff should not have Iudgment. So in an Action upon the Case, the Plaintiff declares upon a Promise upon one Consideration, and the Iury find the Promise, but that it was upon another Consideration; in such case, the Plaintiff shall not have Iudgment. Adjudged for the Defendant.

CXXXI. Merry and Lewes's Case. Pasch. 26 Eliz. In the Common Pleas.

MErry brought an Action upon the Case against William Lewes, 2 Len. 53. Executor of David Lewes late Master of St. Ka­therines juxta London; And Declared, That the said David, in Consideration, That whereas Quaedam pars Domus fratrum & so­rorum Sanctae Katherinae fuit vitiosa & in decasu, the said Merry ad requisitionem dicti Davidis repararet eandem, promised to pay the said Merry all such monies as the said Merry expenderet in such Reparations. And declared further, That eandem partem Domus praedict. reparavit, &c. And upon Non Assumpsit, It was found for the Plaintiff. It was Objected in Arrest of Iudgment, That the Declaration is too general, Quaedam pars Domus; For the Plaintiff ought to have shewed especially what part of the House in certainty, as the Hall, Chamber, or other Rooms: But the Ex­ception was disallowed. Another Objection was, Because he set forth in the Declaration, That the Plaintiff ad requisitionem dicti Davidis repararet; And the Plaintiff declares, That repara­vit generally, without saying,2 Cro. 404. That ad requisitionem Davidis re­paravit: And that is not the Reparation intended in the Conside­ration, i. e. reparatio ad requisitionem, &c. but a Reparation of his own head, and at his pleasure. And for this Cause, the Iudg­ment was stayed.

CXXXII. Wrennam and Bullman's Case. Pasch. 26 Eliz. In the Common Pleas.

2 Len. 52. 1 Len. 282. WRennam brought an Action upon the Statute of 1 & 2 Phil. & Mar. against Bullman, for unlawful impounding of Distresses; and was Nonsuit: 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 upon the words of the Statute, &c. for this Action is not conceived upon any matter which is comprised within the said Statute; and also the Statute upon which this Action is grounded, was made after the said Statute of 23 H. 8. which gives Costs; and therefore the said Statute of 23 H. 8. and the remedy of it cannot extend to any action done by 1 & 2 Phil. & Mary. And Rhodes, Iustice, said, It was so adjudged in 8 Eliz.

CXXXIII. Mich. 26 Eliz. In the Kings Bench.

2 Len. 161. Dyer 291.IN a Formedon of a Mannor, The Tenant pleaded Ioynt-Te­nancy by Fine with J.S. The Demandant averred the Tenant sole Tenant as the Writ supposed; and upon that it was found and tryed for the Demandant: Vpon which a Writ of Error was brought; and Error assigned in this, Because where Ioynt-Te­nancy is pleaded by Fine, the Writ ought to have abated, without any Averment by the Demandant against it, and the Averment had been received against Law, &c. Shuttleworth, At the Common-Law, If the Tenant had pleaded Ioynt-Tenancy by Deed, the Writ should have abated, without any Averment; but that was remedied by the Statute of 34 E. 1. But Ioynt-Tenancy by Fine doth remain as it was at the Common Law; For he hath satis sup­plicii, because by his Plea, if it be false, he hath by way of Con­clusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-Tenancy: And the Law shall never intend that he would so sleightly depart with his Land for the abatement of a Writ. As in a Praecipe quod reddat, the Tenant confesseth himself to be a Villein of a stranger, the Writ shall abate without any Averment Free, and of Free estate; for the Law intends, that the Tenant will not inthral himself without cause. Wray, to the same purpose; But the Demandant may confess and avoid the Fine; as to say, That he who levied the Fine, was his Disseisor, upon whom he hath before entred. And if Tenant in Feesimple be impleaded, and he saith, That he is Tenant for life, the remainder over to A. in Fee, and prayeth in Aid of A. the Demandant shall not take Averment, That the Tenant at the time of the Writ brought was seised in Fee.

Note: In this Formedon, Ioynt-Tenancy was pleaded but as [Page 93] to parcel; And it was holden by Wray and Southcote, That the whole Writ should abate, the whole Writ against all the Defen­dants. And so where the Demandant enters into parcel of the Land in demand, if the thing in demand be an entire thing, the Writ shall abate in all. In this Writ, the Demandant ought to have averred in his Writ an especial foreprise of the Land parcel of the Land in demand whereof the Ioynt-Tenancy by the Fine is pleaded: For this dismembring of the Mannor and distraction of the Land of which the Ioynt-Tenancy is pleaded, is paravail and under the gift whereof the Formedon is conceived; and there­fore in respect of the title of the Demandant, it remains in right parcel of the Mannor, and therefore ought to be demanded accord­ingly with a foreprise. But if A. giveth unto B. a Mannor, except 10 Acres in tail, there, if after upon any Discontinuance, the issue in tail is to have a Formedon; in such case, there needs not any foreprise for the said 10 Acres, for they were severed from the Man­nor upon the gift: But if Lands in demand be several, as 20 Acres, except 2 Acres, this foreprise is not good. See Temps E. 1. Fitz. Brief, 866. Praecipe, &c. unam bovatam terrae forprise, one Sellion, and the Writ was abated, for every demand ought to be certain: but a Sellion is but a parcel of Land uncertain as to the quantity; in some places an Acre, in some more, in some less. Another Point was, Because the Tenant hath admitted, and ac­cepted this Averment; scil. sole Tenant as the Writ supposeth And the Question was, If the Court, notwithstanding the Admit­tance of the Tenant, ought without Exception of the party Ex Of­ficio, to abate the Writ? And it was the Opinion of Wray, Chief Iustice, That it should: For it is a positive Law, As if a Woman bring an Appeal of Murder upon the death of her Brother, and the Defendant doth admit it without a Challenge or Exception, yet the Court ought to abate the Appeal, 10 E. 4. 7. See the princi­pal Case there, Non ideo puniatur Dominus, &c. And if an Action be brought against an Hostler upon the Common Custom of the Realm, and in the Writ he is not named Common Hostler, yet the Court shall abate the Writ Ex Officio. See 11 H. 4. and 38 H. 6. 42.

CXXXIV. Mich. 26 Eliz. In the Common Pleas.

A. Seised of Lands in the right of his Wife for the Term of the life of the Wife, made a Feoffment in Fee to the use of his said Wife for her life; It was holden in that Case, That the Wife was remitted. And it is not like Amy Townsends Case, Plow. Com. 1 & 2 Phil. and Mar. 111. For in the said Case the Entry of the Wife was not lawful, for she was Tenant in tail; which Estate was discontinued by the Feoffment of her Husband. And Periam, Iustice, cited a Case, Sidenham's Case; Bacon seised in the right of his Wife for the Term of the life of the Wife; They both surren­dred, [Page 94] and took back the Lands to them and a third person: And it was holden, That the Wife was not presently remitted, but after the death of her Husband she might disagree to the Estate.

CXXXV. Harper and Berrisford's Case. Mich. 26 Eliz. In the Common Pleas.

IN a Writ of Partition, The Defendant demanded Iudgment of the Writ, because the Writ is, Quare-cum A. teneat, &c. pro indiviso, &c: 4 mille acras; whereas it should be, Quatuor Mille acrarum. And many Grammarians were cited; all which agreed, That it was good both ways; viz. Mille Acras, or Mille Acra­rum. And Rhodes, Iustice, said, That Cowper, in Thesauro suo Linguae Latinae, saith, Quod Mille fere jungitur Genitivo, Ergo non semper. Wherefore Anderson, with the assent of the other Iustices, Ruled, That the Defendant should answer over.

CXXXVI. Hering and Badlock's Case. Trin. 26 Eliz. In the Kings Bench.

2 Len. 80.IN a Replevin, the Defendant avowed for Damage-feasant; and shewed, That the Lady Jermingham was seised of such a Man­nor whereof the place where, &c. and leased the same to the Defen­dant for years: The Plaintiff said, That long time before, King Henry 8th was seised of the said Mannor, and that the place where, &c. is parcel of the said Mannor Demised and Demiseable by Copy, &c. and that the said King by such a one his Steward, demised and granted the said parcel to the Ancestor of the Plain­tiff, whose Heir he is by Copy in Fee, &c. And upon that there was a Demurrer, because by this Bar to the Avowry, the Lease set forth in the Avowry is not answered; for the Plaintiff in Bar to the Avowry, ought to have concluded; and so was he seised by the Custom, until the Avowant praetextu of the said Term for years, entred, &c. And so it was adjudged.

CXXXVII. Rosse's Case. Mich. 26 Eliz. In the Kings Bench.

Ante 83.IN Trespass brought by Rosse, for breaking of his Close, and beating of his Servant, and carrying away of his Goods: Vp­on Not guilty pleaded, the Iury found this special matter; scil. That Sir Thomas Bromley, Chancellor of England, was seised of the Land where, &c. and leased the same to the Plaintiff and one A. which A. assigned his moyety to Cavendish; by whose Com­mandment the Defendant entred. It was moved, That that Te­nancy in Common betwixt the Plaintiff, and him in whose right [Page 95] the Defendant justifies, could not be given in Evidence; and so it could not be found by Verdict, but it ought to have been pleaded at the beginning. But the whole Court were clear of another Opi­nion; and that the same might be given in Evidence well enough. It was further moved against the Verdict, That the same did not extend to all the points in the Declaration, but only to the break­ing of the Close, without enquiry of the battery, &c. And for that cause, it was clearly holden by the Court, That the Verdict was void; And a Venire facias de novo was awarded.

CXXXVIII. Gurney and Saers Case. Trin. 26 Eliz. In the Kings Bench.

AN Ejectione firmae was brought by Gurney against Saer; who pleaded, That Verney was seised, and leased the same to Baker for 21 years, 8 Eliz. Baker, 14 Eliz. assigned his Interest to Rolls; who, 15 Eliz. leased the same to Topp for 10 years; and afterwards Rolls granted the residue of his Term to A. Ver­ney, 16 Eliz. leased the same Land to Stephen Gurney for 21 years, to begin after the determination, surrender, or forfeiture of the first Lease, rendring Rent, with Clause of Re-entry; And after­wards Verney granted over the Reversion in Fee to Hampden; To which Grant, A. and Topp attorned; Topp leased to B. at Will; A. and Topp surrendred; B. held himself in by force of the Tenancy at Will: And the said Surrender was made privily and secretly, without the notice of the said Stephen Gurney; The Rent reserved upon the Lease made to Stephen Gurney is deman­ded, as now begun by the said Surrender. Hampden entred as for the Condition broken for the non-payment of the said Rent: And the Lease made to the said Stephen Gurney was pleaded, Quod praedictus Johannes Verney per Indenturam suam sigillo ipsius Ste­phani Gurney sigillat, demisit, &c. And that was holden a mate­rial Exception; For here upon the matter doth not appear any Lease made by Verney. For here upon the pleading it appeareth, That Verney had accepted a Deed of Gurney, purporting a De­mise by Verney to Gurney, which Gurney had sealed; but there did not appear any such Deed sealed by Verney, and therefore no Lease ut supra. And although a Condition may be pleaded by In­denture sealed with the seal of the other party, yet a Conveyance cannot be pleaded by Deed as it is here, unless sealed with the seal of the party Agent; scil. the Feoffor, Grantor, Lessor: And for that cause, Iudgment was given for the Plaintiff. Another Exception was taken, because that after the Grant of the Rever­sion by Verney to Hampden, the surrender of A. and Topp is plead­ed; whereas A. ought not to surrender; for his Estate was not a Reversion for years, but a Lease in Reversion, and a Lease for years to begin at a day to come, which could not be surrendred. See [Page 96] 4 H. 7. 10. But if A. had granted his Interest by way of Rever­sion, where Attornment had been, as one Releaseth to him the Reversion for years, it is good; contrary to him who hath a Lease in Reversion. But as to that, it was said by the Court, That this surrender by A. was good enough, for in as much as the In­terest which A. had at the time of the surrender was in Rolls a Reversion after his Grant to Topp, and there it remained and con­tinued in its nature as to that point; notwithstanding that by the Grant it passed in another manner, than as a Reversion. Another Exception was taken, because that in the pleading of the Surren­der, it is not alledged, That at the time of the Surrender, Hamp­den was seised of the Reversion. 7 E. 3. 3. He who claims by Cestuy que use, ought to alledge the Seisin and Continuance of Seisin to the said use at the time of the Feoffment or Grant, not­withstanding that Seisin was alledged before. And 10 H. 7. 28. Hewbade's Avowry, he there pleaded, That A. was seised of a Mannor, and thereof levied a Fine to B. & that C. the Tenant upon whom the Avowry was made, attorned, &c. And Exception taken, because it is not shewed in the Avowry, That B. the Conusee was seised of the Mannor at the time of the Attornment. And it was holden a good Exception. On the other side it was said, and af­firmed by the Court, That in all Cases where an Inheritance is once alledged in a Man, the Law shall presume the Continuance of it there, until the contrary be shewed. See 1 Eliz. the Case between Wrotesley and Adams, Plow. Com. 193. And 15 Eliz. be­tween Smith and Stapleton, Plow. 431. Which Wray and Gawdy, Iustices, granted: Ayliff, Iustice, to the contrary. Another point was moved, If upon this secret Surrender notice ought to have been given to Gurney, who had an Interest for years to begin up­on the said Surrender; For some conceived, That Gurney, with­out notice given him of the said Surrender, should not be preju­diced by the Condition aforesaid. And of that Opinion clearly was Wray, Chief Iustice,

Note, In this Case, That Saer, the Defendant, presently after the Iudgment entred, cast in a Writ of Error into the Court; and assigned an Error in fact; scil. That Gurney the Plaintiff in the first Action within age, appeared by Attorny; whereas he ought by Gardein or Prochein Amy. And it was the Opinion of the Iustices upon the first Motion, That that matter could not be assigned for Error; for it is not within the Record, and we can­not reverse our own Iudgment, but only for matter of Process. See for that, Fitzh. Na. Br. 21. f.

CXXXIX. Partridge and Pooles Case. Pasch. 26 Eliz. In the Kings Bench.

TRespass of Battery was brought by Partridge against Poole, 2 Len. 79. 1 Cro. 842. and supposed the Battery at D. in the County of Middlesex; The Defendant justified by reason of an Assault at S. in the Coun­ty of Gloucester, abs (que) hoc, that he beat the Plaintiff at D. in the County of Middlesex: Vpon which traverse, the Plaintiff did demur in Law. It was argued by Popham the Queens Attorny General, That the traverse of the County is good: And he put the Case of 21 H. 6. 8 & 9. In Trespass of Battery at D. in the County of York; the Defendant justified by an Assault at London in such a place in such a Parish, &c. abs (que) hoc, that he was guilty de aliqua transgressione in Comitatu Eborum. Vpon which issued a Venire facias into Yorkshire; and, as the Book is, This traverse as to the County was taken with great deliberation. See also 22 E. 4. 39. And this traverse de jure ought to be allowed; For the Iury in Middlesex are not bound to find the Assault in the County of Gloucester. See 2 Mar. Br. Jurours, 50. In Actions upon transitory matters, although they be layed in Forreign Coun­ties, yet the Iurors if they will, may thereof give their Verdict, but they are not bound to do it. Egerton, Sollicitor General, to the contrary: And he put a difference, where the justification is local, and where transitory: As in False Imprisonment, the De­fendant justifies as Sheriff the taking of the Plaintiff by force of a Capias directed to him at D. within his County of G. Where the Plaintiff declareth of an Imprisonment in another County; there the traverse of the County is good, for the Defendant cannot take the Plaintiff by force of the said Process in any other County than where he is Sheriff; and so the Iustification is local, 11 H. 4. 157. But in our Case, the matter of the Iustification is meerly transitory. And at last, after many Motions, It was adjudged for the Plaintiff. Gawdy, Iustice, being of a contrary Opinion: And by Wray, Chief Iustice, clearly, The Iurors upon pain of Attaint, are to take notice of such a transitory thing done in another County. See 2 Mar. Br. Attaint, 104. 9 H. 6. 63.

CXL. Gerrard's Case. Pasch. 26 Eliz. In the Common Pleas.

2 Len. 168. 4 Len. 7. GErrard, Master of the Rolls, presented Chatterton Bishop of Chester, to the Church of Bangor; to which Church also, one Chambers presented his Clerk; by which several Present­ments, the same Church became Litigious: The Archbishop of York being Ordinary of the place, awarded Jure Patronatus, &c. depending which, the Archbishop admitted the said Bishop; upon which, the said Chambers Libelled in the Spiritual Court, against the said Bishop; For that the said Archbishop praedicto Episcopo plus aequo fidens, admisit dictum Episcopum, pendente the Jure Patronatus; in which Case by the Law of the Church, the Admit­tance is void; For, pendente Lite nihil movetur. And now came the said Bishop, and upon this matter prayed a Prohibition; and he had it, because that the right of the Patronage came in debate. After which came the said Chambers, and prayed a Consultation, because he medled not with the right of Patronage, but only with the wrongful admittance. To whom it was said by the Court, That the awarding of the Jure Patronatus, is not a thing of neces­sity, but at the Will of the Ordinary, and for his better Instructi­on: But if he will at his peril take notice of the right of the Pa­tronage, he may receive which of them he will, without a Jure Pa­tronatus awarded. And it may be, in this Case, That after the Jure Patronatus awarded, and before any Verdict given upon it, the Archbishop was satisfied of the right of the now Plaintiff in the Prohibition to the Patronage, and thereupon admitted the Clerk; And by the clear Opinion of the Court, the Consultation was denyed.

CXLI. Rampston and Bowmer's Case. Trin. 26 Eliz. In the Kings Bench.

IN an Action upon the Case, the Plaintiff declared, That whereas the Plaintiff occupied a Brew-House; And whereas one Gilbert Bowmer was the Beer-Clark of it, and had the go­vernment and disposition of the Beer brewed there, by reason where­of he became indebted to the Plaintiff in such a sum; For which the Plaintiff procured the said Gilbert to be Arrested, and put into the Prison of the Marshalsey; And whereas the said Gilbert in dicta prisona existente, the Defendant tunc & ibidem in Considera­tion that the said Plaintiff would let the said Gilbert out of Prison, Promised, That if the said Gilbert should not accompt with the Plaintiff, and pay him all the Arrearages, which upon such Accompt should be found before such a day, That then the Defendant would [Page 99] pay it: Vpon which the said Gilbert was dismissed ad largum: And further declared, That no Accompt had been made by Gilbert, or any other satisfaction. And upon Non Assumsipt, the Iury found, That the said Gilbert so endebted to the Plaintiff, was arrested at the Suit of the Plaintiff; and that after, the Defendant came un­to the Baily of the Marshal who arrested the said Gilbert, and took upon him to the said Baily, That the said Gilbert should be at the next Court holden for the said Marshalsey; by force and reason of which promise, the Baily suffered the said Gilbert to go at large to his House, &c. and that after and before such Court, the Defen­dant promised the Plaintiff modo & forma, as the Plaintiff had surmised in his Declaration: And upon that Verdict, the Plaintiff could not have Iudgment; For here the Consideration layed in the Declaration is not found by the Verdict; For Gilbert was discharged of the Imprisonment before the promise of the Defen­dant to the Plaintiff: And the Declaration is, That in Conside­ration quod dictus Gilbertus ad largum dimitteretur, &c. And Iudgment was given Quod Querens Nihil Capiat per Billam.

CXLII. Mich. 26 Eliz. In the Common Pleas.

ONe recovered certain Copyhold Lands in the Court of the Lord of the Mannor by plaint in the nature of a Writ of Right: It was moved in the Common Pleas, If a Precept might be made and awarded out of that Court for to execute the said Recovery, and to put him in possession who recovered, with the Posse Manerii, as in such Cases at the Common Law, with the Posse Comitatus. But it was clearly Resolved, It could not be done; For force in such cases is not justifiable, but by Command out of the Kings Courts.

CXLIII. Iplett and Williams's Case. Mich. 26 Eliz. In the Common Pleas.

I Plett brought an Action upon the Case against Williams, and de­clared, Whereas one J. had affirmed a Plaint of Debt against the Plaintiff in the Queens Court of her Mannor of D. in the County of Cornwall; and demanded against him 100 l. And whereas the Defendant now Plaintiff sued a Corpus cum Causa, &c. and delivered the same to the now Defendant, being then Vnder-Steward of the said Court, That notwithstanding that the now Defendant proceeded to Iudgment, and awarded Execution against the Plaintiff and his Sureties, by force of which the Goods of the Plaintiff and of his Sureties were taken in Execution; Vpon which Declaration, the Defendant demurred in Law, be­cause the Iudgment was given in a Court-Baron, which could not hold plea above the sum of 40 s. And notwithstanding that [Page 100] Exception, and notwithstanding also that the Action was brought against the Vnder-Steward, &c. The Plaintiff had Iudgment to Recover.

CXLIV. Denton and Goddard's Case. Pasch. 26 Eliz. In the Kings Bench.

DEbt was brought against Denton Administrator of the Goods and Chattels of James Newton; and the Plaintiff declared upon an Obligation made to the Intestate bearing date the 4th day of April, 24 Eliz. The Defendant prayed Oyer of the Deed and Condition; and then pleaded to the Action: For he said, That the aforesaid James Newton, ante Confectionem praedicti suppositi scri­pti, scilicet ultimo die Septembris 23 Eliz. apud N. obiit, and so Non est factum, &c. The Iury found, That the said Deed was delivered to the Intestate 3 July, 23 Eliz. in the life of the In­testate, bearing date 24 Aprilis, 24 Eliz. before which day, the Intestate died: And upon the whole matter, Iudgment was gi­ven for the Plaintiff.

CXLV. Lichfield and Gage's Case. Pasch. 26 Eliz. In the Kings Bench.

2 Len. 167.IN an Ejectione firmae the parties were at Issue; And by Order of the Court, the Tryal was stayed: And yet the Plaintiff against the Order, obtained privily a Nisi Prius: Vpon which Gawdy, Iustice, being informed of it after the Term, awarded a Supersedeas to the Iustices of Assise, before whom, &c. And not­withstanding that, the Enquest at the Instance of the Plaintiff, was taken, and found for the Plaintiff. All this matter was shew­ed to the Court, in the Kings Bench, and there examined and pro­ved; And it was Ordered by the Court, That the Verdict should not be entred of Record, nor any Iudgment upon it: And so was it put in execution in a Case between Vernon and Fowler. And then the Counsel moved and took Exception to the Supersedeas, because it was not subscribed by the hand of Iustice Gawdy. But it was not allowed, because his Seal was sufficient.

CXLVI. Fuller and Cook's Case. Pasch. 26 Eliz. In the Kings Bench.

1 Roll. 111.IN an Action upon the Case, the Plaintiff declared, That the Defendant had informed one Tho. Colby a Iustice of the Peace, That the Plaintiff had stollen the Defendants Hoggs; By force of which, the said Colby ad Querimoniam Defendentis, made a Warrant, and directed it to the Constable of H. to apprehend [Page 101] the Plaintiff, and to bring him before the said Colby; By force of which, the Plaintiff was Arrested, and brought before the said Colby, and there was examined upon the said matter, and bound over by Recognizance to appear at the next Sessions, and there to Answer; at which Sessions he appeared; And Proclamation was made, That if any one would inform against the Plaintiff, &c. and none came; For which the Plaintiff was discharged, and so by this matter he was discredited, &c. And all this matter was found by Special Verdict; And thereupon Iudgment was given for the Plaintiff. And in this Case the Court took a difference, Where one whose Goods a stollen comes to are Iustice of Peace, and shews him the matter, and prays that the matter be exami­ned and that such a one is examined upon it; here in this case, No Action lieth. But if such a person in such case will expresly say, That such a one hath stollen, &c. Hob. 192. and procure a Warrant from a Iustice of Peace upon such Surmise to arrest the party; upon such matter, an Action upon the Case will lie.

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

IT was moved in the Exchequer, 2 Len. 80. Hob. 304. That Queen Mary seised of the Rectory of D. granted Advocationem Ecclesiae de D. If now by this Grant, the Advowson should pass as now disappropriate; Or that the Rectory it self should pass as appropriate; Or that no­thing at all should pass? And by Manwood, Chief Baron, the Ad­vowson shall not pass, but remain appropriate as it was before: For the Church as it was appropriate by a Iudicial act, so with­out such an Act it cannot be disappropriate. And he said, That by the Grant of the said Advowson, the Rectory did not pass; For by the Appropriation, the Advowson was gone, and it was not in esse, and by consequence, could not be granted: And it is not within the Statute of 4 & 5 Philip & Mary, of Confirmations of Grants of the King; For the said Statute helps not, but misre­cital, misnaming, &c. But here there is not such a thing in re­rum natura, as the Patentee pretends to be passed by the Letters Patents; And if it were in the Case of a Common person, no­thing should pass; As it was adjudged in Sands Case, 11 Eliz. And he said, That at this time a Parsonage might be disappro­priated; but that ought to be by a Iudicial Act; as by Present­ment, and not by any private Act of the Proprietor: And so he said, a Church was disappropriated by the Lord Dyer, by a Pre­sentment which of late he made to it.

CXLVIII. Cox's Case. Mich. 26 Eliz. In the Kings Bench.

IN Debt upon an Obligation against Cox, the Case was; A Parson made a Lease for years, and became bounden to the Lessee, to perform the Covenants in the Lease: The Defendant pleaded, That the Lease is void, by the Statute of 14 Eliz. be­cause he was absent from his Benefice above the space of 80 days; part of which time encurred depending the Action, and before the Pea was pleaded: It was the Opinion of the Court, That the Plea was good. But Exception was taken to the pleading; The Defendant saith, That the said Church is a Parochial Church cum Cura animarum, but doth not say. That it was so at the time of the Lease and Obligation made: For it may be, that at the time of the Lease there was a Vicar; and then it was not Cura anima­rum. And afterwards upon that Exception, Iudgment was given for the Plaintiff.

CXLIX. Wroth and Capell's Case. Pasch. 26 Eliz. In the Kings Bench.

4 Len. 197.THe Case was; A. was Indicted upon the Statute of 8 H. 6. And Exception was taken to the Indictment, because no word of Freehold was in it; or to prove, that the party grieved had any Freehold whereof he might be disseised. But because the words of the Indictment were, Expulit & disseisivit, which could not be true, if the party expelled and disseised had not Freehold; the Ex­ception was disallowed. Another Exception was taken to the In­dictment; For these words, In unum tenementum intravit; and this word Tenementum, is too general, and an uncertain word; and therefore as to that, the party was discharged. But the Indict­ment was further, In unum Tenementum & decem acras terrae eidem pertinent. And therefore as to the 10 Acres, the party was enforced to Answer.

CL. Pasch. 26 Eliz. In the Common Pleas.

A. Granted to B. a Rent-charge out of his Lands, to begin when J.S. died without Issue of his body; J.S. died, having Issue; which Issue died without Issue. Dyer said, The Grant shall not take effect; For J.S. at the time of his death had Issue: and therefore then the Grant shall not begin; and if not then, then not at all. And by Manwood, If the words had been, To begin when J.S. is dead without Issue of his body, then such a Grant should take effect when the Issue of J.S. dieth without Issue, &c. Dyer, If the Donee in tail hath Issue, and dieth without Issue, The Formedon in Reverter shall suppose that the Donee himself died without Issue; For there is an Interest, and there is a dif­ference betwixt an Interest and a Limitation: For if I give Lands to A. and B. for the Term of their lives, if any of them dieth, the Survivor shall have the whole. But if I give Lands to A. for the life of B. and C. now, if B. or C. die, all the Estate is de­termined, because but a Limitation, and B. and C. had not any Interest. See Cook 5 Part, Bradnell's Case.

CLI. Pasch. 26 Eliz. In the Common Pleas.

A. Enfeoffed B. upon Condition, That if he pay 10. l. to the Feoffee, his Executors or Assigns,4 Len. 232. 1 Len. 285, 286. Hill. 12. Car. 2 B.R. Goodyer and Clarks Case. within 3 yeares next ensu­ing, that then it should be lawful for him and his Heirs to re-enter. The Feoffee hath Issue two Sons, whom he makes his Executors, and dieth before the day of payment. The Ordinary commits [...]et­ters of Administration to J.S. during the minority of the Executors. Manwood conceived, That it is a most sure way for A. to pay the Monies to the Executors, for they remain Executors notwithstand­ing the Administration committed to another: For the Administra­tor in such case is but as Bailiff or Receivor to the Executors, and shall be accomptable to them; Which Harper and Dyer, Concesse­runt: And Manwood said, If in this Case the Monies be paid to one of the Executors, it is sufficient, and the same well paid; but that Conditional Feoffments are as a Sum in gross, and not in nature of a Debt: Which the rest of the Iustices granted.

CLII. Pasch. 26 Eliz. In the Common Pleas.

A. Seised of a Mannor seased the same for years, rendring Rent, with Clause of re-entry; and afterwards levied a Fine Sur Conusans de Droit, to the use of himself and his Heirs; The Rent being demanded, is behind. Dyer, A. cannot re-enter; for although in right the Rent passeth without Attornment, yet he is without remedy; for it is without Attornment: and it would be hard without Attornment to re-enter, &c.

[Page 104]It was moved further, If here the Conusor be Assignee within the Statute of 32 H. 8. Manwood, The Reversion of a Ter­mor is granted by Fine, there wants privity for an Action of Debt, Waste, and Re-entry: But if the Conusee dieth without Heir, although that in right it was in the Conusee; yet the Lord by Escheat shall make Avowry, and yet the Conusee by whom he claimeth, could not. And in the Case at Bar, the Conusee him­self could not, but the Conusor being Cestuy que use, who is in by the Act of Law,1 Inst. 309. shall avow, and shall re-enter without Attorn­ment: For the Conusor is in by the Statute of 27 H. 8. Harper, The Heir of the Conusee shall avow and re-enter before Attorn­ment. Dyer, 13 H. 4. The Father leaseth for years rendring Rent, with Clause of re-entry; the Father demands the Rent, which is not paid; the Father dieth, the Son cannot re-enter, For the Rent doth not belong unto him: And therefore in the Case at Bar, the Conusee cannot avow for the Rent before Attornment; therefore not re-enter.

CLIII. Trin. 26 Eliz. In the Common Pleas.

IT is Enacted by the Statute of 5 Eliz. Cap. 8. That no per­son shall cut down any Oak Trees but between the first day of April, and the last day of June, but Timber imployed and bestowed in or about Buildings or Reparations of Houses, &c. And upon an Information upon that Statute, the Defendant pleaded, That he cut down the said Oak Trees and thereof made Laths to be bestowed in building, and that he had sold them to J.S. who had imployed part of them in building, and is imploying the residue in the same manner. Windham, The intent of the Defendant in cutting down the Oaks, was not to have them imployed in build­ing, but to sell them: Although it is not necessary for the satis­faction of that Statute, that the Oaks presently after the cutting be imployed about building; For if the Lessee of a Messuage, who is to have House-bote, seeing that his Messuage will want repara­tion, cutteth down a Tree for such intent, although there be not such urgent occasion at present, that it ought to be presently repai­red, the same shall not be said Trespass; for it is good Husbandry to have such Timber to be seasonable, which cannot be, without some reasonable time between the cutting down and the imploy­ment. Periam, If at the time of the cutting, the Vendor or Vendee had an intent to employ them about building, it is good enough: And it is a strong Case here, because the Defendant imploys the Timber himself in Laths, which is not of any use but for building; and cannot be made but of Timber.

CLIV. Eve and Finch's Case. Trin. 26 Eliz. In the Kings Bench.

PEter Eve and John Finch brought an Action of Trespass against Nathaniel Tracy and Margaret his Wife: and upon the plead­ing, the Case was, that John Finch, Father of J.F. the Plain­tiff, seised of the Mannor of St. Katherines, held the same of the Queen by Knight service in Chief, and was also seised of the Land where the Trespass was done, being holden in Socage; and so seised, 6 Junij, 20 Eliz. for the preferment of the said Margaret then his Wife, enfeoffed of the said Mannor A. and B. unto the use of himself and the said Margaret, and their Heirs. And that the said John the Father had not any other Land but that before mentioned; and that the said Mannor at the time of the said Feoffment, and at the death of the said John the Father attin­gebat ad duas partes of all the Lands and Tenements of the said John the Father in three parts to be divided. And afterwards, the Father by his Will devised the Lands holden in Socage, unto his said Wife for life, with divers Remainders over: It was the Opinion of the Court in this Case, that the Devise was utterly void by the Statute.

CLV. Brett and Peagrims Case. Pasch. 26 Eliz.

IN an Action upon the Case, the Plaintiff declared, that where­as he himself and the Defendant submitted themselves to the Award of A.B. and C.D. and whereas the said Arbitrators upon the hearing of the Causes between them, did intend, and were resolved, amongst other matters of their Award, to award, that two Obligations by which the Plaintiff was severally bounden to the Defendant for the payment of certain sums of Mony to the Defendant, should be delivered by the Defendant to the Plaintiff to be cancelled: The Defendant promised, in Consideration, that that Article of the delivery of the said two Obligations should be left out of the Award, that he himself would gratis de­liver them to the Plaintiff without any Coertion or direction of the Award: and further declared, that the said Article ad spe­cialem instantiam ipsius Querentis was left out by the said Arbitra­tors out of their Award; and notwithstanding that, that the De­fendant had not redelivered, ut supra, &c. but had put the same in suit against the Plaintiff. In this Case, upon the matter, ut supra, &c. it was adjudged for the Plaintiff.

CLVI. Nich. Lee's Case. Pasch. 26. Eliz. In the Kings Bench.

1 Cro. 26. 1 Len. 285. 1 Inst. 113. Dyer 177. 219. a. 2 Len. 220. NIch. Lee by his Will devised his Land to W. his second Son; And if he do depart this World, not having Issue, then I Will my Sons-in-Law shall sell my Land. The Devisor at the time of the Devise having six Sons-in-Law, died; W. had Issue John and died; John died without Issue; one of the Sons-in-Law of the Devisor died; the five surviving Sons-in-Law sold the Land. 1. It was clearly agreed by the whole Court, that although the words of the Will be, ut supra, If W. my Son depart this World, not having Issue, &c. And that W. hath Issue which dieth without Issue, there although it cannot be said Literally, that William did depart this World not having Issue; yet the intent of the Devisor is not to be restrained to the Letter; but Construction shall be made, that whensoever W. dieth (in Law upon the matter) without Issue, the same Land shall be subject to sale ac­cording to the Authority committed by the Devisor to his Sons-in-Law: And now upon the matter W. is dead without Issue. As in a Formedon in the Reverter or Remainder, although the Donee in tail hath Issue, yet if afterwards the Estate tail be spent, the Writ shall suppose, that the Donee died without Issue: a fortiori in the case of a Devise, such Construction shall be made.

As to the other point concerning the sale of the Land, Wray demanded, if the Sons-in-Law were named in the Will? The Clerks answered, they were not. See 30 H. 8. Br. Devise, 31 and 39 Ass. 17. Fitz. title, Executors, 117. Such a sale is good in case of Executors. See also, 23 Eliz. Dyer, 371. And see 4 and 5 Mar. Dyer, Land devised in tail, and if the Devisee shall die without Issue, that then the Land shall be sold pro optimo valore by his Executors una cum assensu of A. if A. dieth before sale, the power of the Executors is determined. And afterwards it was clearly resolved by the whole Court, that the sale, by the man­ner aforesaid was good; and Iudgment given accordingly.

CLVII. Rag and Bowley's Case. Trin. 26 Eliz. In the Kings Bench.

ERror was brought upon a Fine, and the Error was assigned in the Proclamations: Whereupon issued a Certiorari to the Custos Brevium, who certified the Proclamations; by which Cer­tificate it appeared, that two of the said Proclamations were made in one day: upon which the Defendant prayed another Scire facias to the Chirographer; in whose Office it appeared, that all the Proclamations were well and duly made. It was the Opi­nion [Page 107] of Wray, Chief Iustice, in this Case, that the Defendant ought to have his preyer; for the Chirographer maketh the Pro­clamations, and he is the principal Officer as to them. And the Custos Brevium, hath but the abstract of the Proclamations; and we may in discretion amend them upon the matter appearing. But the other Iustices seemed to be of a contrary Opinion; for that the Proclamations being once certified by the Custos Brevium, who is the principal Officer, we ought not afterwards to resort to the Chirographer, who is the inferior Officer: And afterwards, the Clerks of the Common Pleas were examined of the matter aforesaid by the Iustices of the Kings Bench; and they answered according to that which was said by Wray, Chief Iustice. Where­fore it was awarded by the Court, that a new Certiorari be di­rected to the Chirographer: who Certified the Proclamations to be well and duly made. And thereupon the Court awarded, that the Proclamations in the Office of the Custos Brevium, should be amended according to the Proclamations in the Custody and the Office of the Chirographer.

Note, In the same Case, before the Writ brought, a stranger had brought a Writ of Error against the same Defendant upon the same Fine; upon which the transcript of the Fine and Procla­mations are removed in Banco, and after the Plaintiff is Non-suit. Now another who hath Cause, may have a Writ of Error, quod coram vobis residet.

CLVIII. Taverner and Cromwell's Case. Trin. 26 Eliz. In the Kings Bench.

UPon an Evidence unto a Iury,3 Cro. 353. containing difficulty and mat­ter in Law; it was found, viz. that the Bishop of Norwich, 10 H. 8. was seised of the Mannor of Northelman in the right of his Bishoprick; and, at his Court holden within the same Man­nor, granted parcel of the Demesnes of the said Mannor to one Taverner and his Heirs, where, of the said Land in truth, there was not any Demise by Copy before: And so the said Land continued in Copy until 23 H. 8. at which time, Taverner committed a forfeiture; which being presented, the Bishop seised the Land as forfeited; and granted the same again by Copy to Taverner in Fee: And so from thence it continued in Copy until 8 Eliz. (which Interval between 23 H. 8. and 8 Eliz. amounted to 47 years:) It was the Opinion of the whole Court in this Case, that the Continuance for 50 years, is requisite to fasten a Cu­stomary Condition upon the Land against the Lord. It was also agreed by the Court, that although the Original Commence­ment, and that Customary Interest did commence 10 H. 8. ut su­pra, from which time, unto 8 Eliz. 60 years passed; yet the sei­sure for a forfeiture which happened 23 H. 8. interrupted utterly [Page 108] the Continuance from the time which might by the Law have per­fected the Customary Interest. So that now, the time before the forfeiture ought not to be accounted in this Case: But the Or­ginal beginning of the Copyhold shall be holden to be 23 H. 8. when the Grant de Novo by Copy was made; between which time, and 8 Eliz. is an interval but of 47 years; within which time, a Customary Interest cannot be attached upon the Land: And then before sufficient time encurred, &c. the Lord may well enter upon such a Tenant at Will: For as yet, there is not any Custom begotten by sufficient time to bind him. It was also agreed by the Iustices, That if the Lord of a Mannor is seised of an ancient Copyhold for forfeiture, or by reason of Escheat, and Lett the same at Will without any Copy for divers years, one af­ter the other, that that is not any Interruption of the Customary nature of the Land; but that the Lord may grant it again by Copy.

As to other parcel of the Land, It was given in Evidence, That at a Court lately holden at Northelman, It was presented by the Homage there, That Taverner the Plaintiff being a Copy­holder of the said Mannor, had forged a Customary of the said Mannor, containing divers false Customs, pretending them to be true Customs of the said Mannor, and that he had forged, and put a Seal to it, about which, this word, viz. (Northelman) is en­graven; And that he had procured divers Copyholders of the said Mannor to set their seals to it; and that he said unto them, That that Customary should be put into the Church of Northelman amongst the Charters and Evidences of the said Church: And that he had now made his Copyhold as good as his Freehold. And, If the said Offence committed by the Plaintiff, ut supra, be a forfei­ture of his Copyhold, was the Question? It was argued by Popham, who was of Counsel with the Plaintiff, That without further matter, it was not any forfeiture; And yet he confessed, It is a forgery against the first branch of that Statute of 5 Eliz. cap. 14. And so he said it was lately adjudged in the Star-Chamber: But as to the point of Forfeiture, he put this difference; If the Lord demand his Services of his Copyholder, there, If the Co­pyholder upon debate between the Lord and himself, sheweth forth such a forged Customary, and Counterpleads the Demand of the Lord with it; now it is a forfeiture, for that the Inheritance of the Lord is thereby hazarded: As, if the Copyholder after the forfeiture keep it himself, and doth not encounter his Lord in his demand with it in his services, the same is not any forfeiture: As, if the Copyholder, before any Rent be due, saith, That he will not pay any Rent to the Lord hereafter: Or when a Court is to be holden, That he will not after appear to do any Suit at the Court of his Lord, &c. But if, his Rent being due, he denyeth it; Or when the Court is holden, he saith, That he will not do any Suit; the same is a foreiture: As it was lately adjudged in the Kings [Page 109] Bench, in the Case between Sir Christopher Hatton, and his Co­pyholders of his Mannor of Wellingborough. So if a Copy­holder being with the other Copyholders charged upon Oath to enquire of the Articles of the Court-Baron, and sufficient mat­ter being given to them in Evidence, to induce them to find a mat­ter within their Charge, and they or any of them obstinately re­fuse to find the same, the same is a forfeiture of his Copyhold; As it was adjudged in the Case of Sir Rich. Southwell, Knight, and Thurston. Clench, Iustice, conceived, That in the principal Case, the Offence of the Plaintiff, is not any forfeiture, no more,1 Roll. 508. than if a Copyholder makes a Charter of Feoffment of his Customary Land, and delivereth the same as his Deed to the party, but doth not execute it by Livery, the same is not any forfeiture. It was argued by Gawdy, Serjeant, who was of Counsel with the De­fendant, to the contrary: For he said, That if a Copyholder will forge a Deed of Feoffment, purporting, That the Lord of the Mannor hath enfeoffed him of the said Customary Land, notwith­standing that he keepeth such Charter himself, without shewing it forth, yet it is a Forfeiture. At the length, The Court wished the Iury to find the special matter, and to refer the same to the Court, Whether it was a Forfeiture, or not. In this Case, ano­ther matter was moved, viz. The Auncestor of the Plaintiff had purchased divers several Copyholds from several Copyholders by several Copies whereof he died seised; Or committed several Of­fences by which he forfeited to the Lord all his Copyholds, for which the Lord seised, and granteth them again to his Auncestor wtih the Ancient Rent, and to his Heirs, Tenendum per antiqua servitia & consueta, &c. And afterwards, the same Copyholder commiteth Waste, whether the same shall now trench to forfeit all the Copyhold Lands which were granted ut supra, by one entire Copy; Or only that which was before the seizure holden by the same Rent, Et ni­hil ultra: For these words, Tenendum per antiqua servitia, do not trench only to the Quantity of the Services, but also to the Qua­lity; scil. severally, so as there shall be several Services as be­fore: As if A. be seised of Copyhold Land on the part of his Fa­ther, and of other Copyhold Land on the part of his Mother, and thereof dieth seised, and his Son and Heir be admitted to it by one Copy, and by one Admittance; Now if that Son dieth without Issue, the Copyholds shall descend severally, the one to the Heir on the part of his Father, and the other to the Heir on the part of his Mother, &c. And afterwards the Iury found the Special Verdict, and the special matter, ut supra, &c

CLIX. Vincent Lee's Case. Trin. 26 Eliz. In the Exchequer.

1 Inst. 138. b. VIncent Lee seised of Lands in Fee, had Issue 3 Sons, F.G. and J: and by his last Will in writing Devised, That J. his Son should have the Land for the Term of 31 years, without im­peachment of Waste, to the intent that he pay certain Debts and Legacies set down in his said Will, The remainder after the said Term expired to the Heirs Males of the Body of the said J. begot­ten. And further willed, That if the said J. die within the Term aforesaid, that then G. his Son shall have such Term, &c. and then also shall be Executor; but made the said J. his present Executor, and died, J. entred by force of the Devise: F. died without Issue, by which the Feesimple descended upon J. who had Issue P. and died within the Term, P. entred; G. as Executor entred upon him; and he re-entred; upon which re-entry, G. brought Trespass. Pigott said, That the Term by the descent of the Fee from F. to J. being the second Son of Vincent, and Heir of F. is not extinct, but only suspended. It hath been Objected, that J. cannot be said to die within the Term, because by the descent of the Fee, the Term is extinct, or suspended, and so not in esse at the time of the death of J. therefore nothing did accrue to G. because J. did not die within the Term: but that is but a Conceit; for the intent of Vincent was, that the Heir should not meddle with the Land Devised as Heir, until the 31 years be expired: and words, Du­ring, or Within the Term, extend unto the time of the Term, and not unto the Estate: And although, that the Term as to J. be extinct, yet the right or possession of G. shall stand, and shall be expectant upon the death of J. before the expiration of the said 31 years. As, A. leaseth for life to B. and afterwards granteth the Reversion with Warranty to C. who releaseth to B. in Fee, who is impleaded in a Praecipe: although now B. hath a Feesimple, yet during his life he shall not recover in value. And in the prin­cipal Case, This further Interest limited to G. cannot be extinct or prevented. See Plow. Com. Welden and Elkingtons Case. Beau­mont, contrary. And that the Term is extinct, because he hath the said Term in his own right, and not as Executor, but as a Man trusted with payment of Debts and Legacies; But the same Term which J. had, G. cannot have, for some of the years are ex­pired; and the words of the Will are, He shall have such Term; but here the Term is utterly extinct: As where a Rent, Com­mon, or Way, &c. descendeth upon the Ter-Tenant; 2 H. 4. A Prior had an Annuity out of a Parsonage, and afterwards he purchaseth the Advowson, which is afterwards appropriated to his House; now the Annuity is extinct; and although the Prior after­wards presenteth to the Advowson, yet it is-not revived; Br. [Page 111] Extinguishment, 54. A Man hath a Lease for years as Executor, and purchaseth the Inheritance, his Term is extinct, yet it is As­sets, &c. And it is said in Bracebridges Case, Plow. Com. 419. 14 Eliz. that Parson, Patron and Ordinary, Lease for years the Glebe Lands of the Parsonage; the Parson dieth; the Les­see for years becomes Parson and dieth, his Executors shall not have the residue of the said Term; for the Term is extinct,1 Inst. 338. b. 2 Roll. 472. al­though he had the Term in his own right, and the Freehold in the right of his Church; and so in several Capacities. And it was holden by some, that if the Term for years comes to the Lessor as Executor, who dieth, the Term is revived. Manwood, Chief Baron, asked this Case of those who Argued; A Lease is made for 21 years, Proviso, That the Lessee shall suffer the Lessor to enjoy the same, or to take the profits thereof during the life of the Lessor, or so long as the Lessor shall live; if the same were a good Proviso, or not? Pigot Conceived, that the Devise to G. was a new Devise, and not dependant upon the first Devise to J. nor any parcel of it; but this second Devise to G. did take away the abso­lute Devise to J. before, and qualified it, so as it determined with his death. The words, Such Estate, shall be intended an Estate to G. to be granted from the death of the Testator. Land is Devi­sed to A. and his Heirs, and he if dieth without Heir, that it shall remain to another; the same is no good Devise: But a Devise to one and his Heirs, and if J.S. dieth living the Devisee, B. shall have it; the same is good: for it is a new Devise, and an Estate created de Novo, and doth not depend as a Remainder upon the first Devise, or upon the first Estate devised; as the Case is, 29 Ass. 17. Br. Condition, 111. and Devise, 16. So here are seve­ral Estates limited, one to J. and another to G. which Estate of G. cannot be extinct by unity of possession in J. These words, If he die within the Term, shall be construed for Effluxion of the time of 31 years, and not for the Termination of the Term. Cooper, Serjeant, to the contrary; J. took this Term as purchasor, and not as Executor, for that no Term was in the Testator. See 14 Eliz. Dyer, 309. Granmer's Case; G. shall have such Term and Interest as before I have willed unto J. Manwood, Such Term, that is to say, The Residue of the Term.

Now at another day, the Barons delivered their Opinions, that the Plaintiff should recover, and that was now G. to whom the second Term was devised: And by Manwood, in Constructi­on of Wills, all the words of the Will are to be compared toge­ther, so as there by not any repugnancy between all the parts of the Will, or between any of them, so that all may stand: And the Intent of the Testator was, That his Son J. should have the Lands for 31 years, if he so long lived, and if he died within the Term, That G. his Son should have such Term. And he held, That the same was in J. an Estate by Limitation, and he could not sell it, nor could it be extinct by Act in Law, or of the Law. It was a Lease [Page 112] determinable by his death, and so shall be the Lease of G. deter­minable upon his own death; and G. upon the death of J. within the Term, shall have the residue of the number of the years limit­ed by the former Devise; scil. so many in number as were not ex­pired in the life of J. who was first Executor to that special purpose. Gent, Baron, to the same intent; here he hath the same Term as Executor; and it is not like a-Term devised, which the party hath as Legatee; but in our Case, he hath only authority in this Lease as Executor, and the Land was tied to the time and the Authority; and when the same determines in his person, then the Land de­parts from him to G. who was a special Executor to that purpose, as J. was before. And G. had not the same Term which J. had; but such a Term. Clerk, Baron, acc. And he said, that the Will was further, that if G. died before his Debts paid, and his Will performed; and the Iury finding all the special matter, con­cluded, that if the Term limited to J. be extinct, then they find for the Defendant. And he held clearly, that J. had this Term of 21 years as Executor, and that by the discent of the Inheri­tance to J. the Term as to himself was gone: But as to Cre­ditors and to the Legatees, it shall be said in esse, and be Assets in his hands: And because that the Term as to that purpose shall be said in esse, he died within the Term, within the intent of the said Will. And this word, Term, is, Vox polysema, Terminus status, Terminus temporis, Terminus loci. And in our Case, the word, Term, hath reference to time, and not to estate; for the Testator did respect the time in which his Will might be performed, and that was 31 years; as if I make a Lease during the Term that J. S. hath in the Mannor of D. and J. S. hath 40 years in it; now although that J S. surrendreth or forfeiteth it, yet he shall hold over, but he shall have it for 40 years; for my Lease refers to the time, and not to the estate. In the like manner here, G. cannot have the same Term which J. had, nor for 31 years after the death of J. but so much of the said 31 years shall be cut off in the inter­rest of it, as J. had enjoyed it; and G. shall have as many years as J. hath left; and G. shall perform so much of my Will as J. at his death within the Term aforesaid shall not have performed: As if I Lease my Land to one until he hath levied 100 l. and if he dieth before that he hath levied it, then J. S. shall have such Term for the levying of it: the first Lessee levieth 50 l. and dieth, J. S. may levy the residue, but not the whole. And although that the Iury saith, that if the Term be extinct, then they find for the De­fendant; although that it be extinct, yet they are not to take Co­nusance what the Law is thereupon: but that is the Office of the Iudges. As 13 E. 3. the Iury found, that the Son was born du­ring the Elopement, and so Bastard; that Conclusion of the Ver­dict is not to the purpose, but the Court ought to judge upon the premises of the Verdict, If upon the birth, during the Elopement, the party be Bastard or not? And afterwards, Manwood, with [Page 113] the assent of his Companions the Barons, Commanded, That Iudgment should be entred for the Plaintiff; Which was done accordingly.

CLX. The Bishop of Bristow's Case. Trin. 26 Eliz. In the Exchequer.

NOte, It was holden by Manwood, Chief Baron, in this Case, That if a Lease be made for years rendring Rent,1 Cro. 398. More Rep. 891. with Clause of Distress; And afterwards, the Rent and Reversion are extended upon a Statute, or seised into the Kings hands for Debt; if the Lessee payeth the Rent according to the Extent, the same is not in any danger of the Condition, for that now the Lessee is compellable to pay it according to the Extent.

CLXI. Hill. 26 Eliz. In the Exchequer.

THe Queen by her Letters Patents granted to J. S. catalla Utlagatorum, & Felonum de se, within such a Precinct;More Rep. 126, 127. One who was endebted unto the Queen, is felo de se, within the Pre­cinct. It was the Opinion of all the Barons, and so Ruled, That notwithstanding the Grant by the said Letters Patents, That the Queen should have the Goods for to satisfie her Debt.

CLXII. Tuker and Norton's Case. Pasch. 26 Eliz. In the Kings Bench.

THe Case was; An Infant being in Execution upon a Con­demnation in Debt, brought a Writ of Error: His Father and his Brother was his Bail: It was the Opinion of the Iusti­ces, That they two only should enter into the Recognizance, That the Enfant shall appear; and that if the Iudgment be affirmed, that they shall pay the Mony, and not that they shall render the Body of the Enfant again to Prison: for that, when once he is discharged of the Execution, he shall never be in Execution again.

CLXIII. Marsh and Jones's Case. Mich. 27 Eliz. In the Common Pleas.

2 Len. 117.IN a Replevin, the Case upon the Evidence was, That before the Statute of Quia emptores terrarum, A Man made a Feoff­ment in Fee to hold of him by the services, Solvend. post quamlibet vacationem sive alienationem, the value of the annual profits of the Lands, &c. It was holden by the Court, That value shall be in­tended, which at the time of the Feoffment was the value, and not as it is now improved by success of time.

CLXIV. Annesley and Johnsons's Case. Mich. 27 Eliz. In the Common Pleas.

IN an Ejectione Firme, upon Evidence, the Case was, That Roger Wake was seised, &c. and before 27 H. 8. enfeoffed certain persons to his use, &c. and they being so seised to the use aforesaid, The said Roger by his Will willed, That his Feoffees and Exe­cutors should found a Chauntry in perpetuity, and a Priest there, to say Mass pro anim', &c. and that they procure a Licence to alien in Mortmain, and also an Incorporation for such Chauntry Priory; And that the said Lands should be conveyed to such a Priest, &c. And also that every such Priest should be School-Master there; And that post dictam Cantariam sic fundatam & stabilitam, the said Priest should say Mass, &c. Roger Wake died: The Feoffees and Executors did not procure any Corporation, or Licence to alien in Mortmain, nor make any estate to the Chauntry Priest: But the appointing a Priest who said Mass according to the Will of the said Roger, and was also a School-Master, and took the profits of the said Lands as owner of them, and died: After which, one Vere was appointed to be School-Master there, but he was meerly a Lay-person, and so continued until his death, and took the profits of the Land; And upon part of the Land he built a House, and there dwelt, and kept a School. And after his death, one Curtis was appointed by the Executors to teach there, and he was a Lay-man, and there taught many years; and afterwards he took Orders, and became a Priest, and said Mass, and other Divine Service, and continued School-Master also: And 26 H. 8. the same was presented for a Chauntry for First-Fruits, and first-fruits were paid for it, as appeared by a Particular which was shewed in Evidence. And also, 2 E. 6. it was presented for a Chauntry, and the possessions of it seised into the Kings hands. And it was much insisted upon, That Vere being a meer Lay-man, that the same was a forcible Interruption of the Reputation of the Chauntry. But it was the Opinion of the whole Court to the [Page 115] contrary: And that notwithstanding, That no Corporation was obtained, yet because that the Priest was appointed by colour of the Will, and he said Mass according to the Will, although Vere who succeeded him was a meer Lay-man, and not a Priest; yet af­terwards when Curtis came being appointed but a School-Ma­ster, being also a meer Lay-man, yet afterwards when he took up­on him Orders, and demeaned himself as a Chauntry Priest there ratione institutionis by the Will of Wake, which is confirmed by the Certificate, and also by the Presentment; The first Repu­tation is revived, and the Law shall not construe, That Curtis took the profits in the Quality of a School-Master, but as a Priest; for the Law hath respect to the Will of the said Wake, which was the ground of all these proceedings, and that, although he did not say Mass within 5 years before the Statute of 1 E. 6. And Note, That the Certificate of 26 H. 8. was, That Rich. Curtis was Cantarista: And it hath always been adjudged, That a Chauntry by Reputation is within the Statute of 1 E. 6.

CLXV. Brian and Cawsen's Case. Trin. 27 Eliz. In the Common Pleas.

IN Trespass by Brian and his Wife and others, against Cawsen; It was found by Special Verdict,2 Len. 68. That W. Gardiner was sei­sed in Fee according to the Custom of the Mannor of C. of cer­tain Lands, and surrendred them to the use of his last Will, by which he Devised them in this manner; scil. I Bequeath to Jo. Th. my House and Lands in M. called Lacks and Stone; To Ste. Th. my House and Lands called Stokes and Newmans; And to Roger Th. my House and Lands called Lakins and Brox. Moreover, If the said Jo. Ste. or Roger, live till they be of lawful age, and have Issue of their bodies lawfully begotten, Then I give the said Houses and Lands 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 Assignee, and the Mony to be given to the Poor. The Devisor dieth, Jo. Ste. and Roger are admitted according to the intent of the Will; Roger dieth within age without Issue; John and Ste. are admitted to his part; John comes of full age, and hath Issue J. and surrenders his part of the whole, and his estate therein, to the use of Ste. and his Heirs; who is admitted accord­ingly. Ste. comes of full age, John the Father dieth; Ste. dieth without Issue; J. the Son as Cosen and Heir of Ste. 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 [Page 116] Lands called Lacks and Stone, and to the moyety of the Lands cal­led Lakins and Brox, parcel of the place where, &c. praetextu quo­rum, they enter into all the Lands where the Trespass is done. And it was found, that A. the Executor died Intestate; And that Caw­sen the Defendant is Cosen and Heir to the said 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 3. Devisees had but an Estate for life: But Fenner and Walmesley who argued for the Plaintiffs, Conceived, That by force of the later words, scil. If the said John, Stephen, and Roger, live till they be of lawful 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. They have Fee; and the words, In manner aforesaid, are to be referred not unto the Estate which was given by the first words which was but for life, but to make them hold in severalty as the first Devisor willed, and not joyntly, as the words of the second Devise purported. And Fenner said, It hath been Resolved by good Opinions, That where a Fine was levied unto the use of the Conusor and his Wife, and of the Heirs of the body of the Conusor, with divers Remainders over; Pro­viso, That it shall be lawful to the Survivor of them to make Lea­ses of the said Lands in such manner as Tenant in tail might do by the Statute of 32 H. 8. although those Lands were never De­mised before the Fine, yet the 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, refer unto the Estate for life limited unto A. and not unto the Condition, nor unto any other Collateral manner.

The words, If they live until 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 them to them and their Heirs, to give and sell at their pleasure. 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 unto the last words, And if it fortune they three to die without Issue, &c. these words can­not make an estate tail, and the express Limitation of the Fee in the first part of the Will, shall not be controverted by Implication out of the words subsequent. As if Lessee for 40 years Deviseth his Lands to his Wife for 20 years, and if she dieth, the remnant of the Term unto another; although, that she survive the 20 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 to the Devisee's after-Issue. Snagg and Shuttleworth, Serjeants, to the contrary; And they Conceived, That the De­fendant hath right to two parts; for no express Inheritance vests in the Devisees until full age and issue; and because two of the [Page 117] Devisees died without Issue, they never had any Inheritance in their two parts, and so those two parts descended 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; If John live until, &c. he shall have the Inheritance in his part; and so of the rest. As if J. have right unto Land which A. B. and C. hold in Common, and J. by a Deed release to them all, the same shall enure to them severally, 19 H. 6. And here, these later words, If these three do die without Issue, by that they conceived, The same to be but an estate in tail. And see to that purpose, 35 Ass. 11. 37 Ass. 15. For a Man cannot declare his intent at once, but in several parts; all which make but one sentence. And so it is said by Persay, 37 Ass. 15. We ought to have regard upon the whole Deed, and not upon parcel. And see Clark's Case, 11 Eliz. Dyer, 330, 331. And it was said, If I give Lands to one and his Heirs so long as he hath Heirs of his body, it is a Feesimple deter­minable, and not an estate in tail. Quaere of that. Then here the Feesimple is determined by the death of the Devisees without issue, and therefore the Land ought to revert to the Heir of the De­visor, especially being no person in rerum natura, who can sell, for the Executor before sale by him made, died Intestate; and if he had made an Executor, yet the Executor of the Executor could not sell. Which see, 19 H. 8, 9 & 10. And afterwards Resolved, That no estate tail is created by this Will, but the Feesimple set­led in them, when they came at their lawful age, and had Issue; so as the residue of the Devise was void, and Iudgment was given accordingly.

CLXVI. Griffith and Agard's Case. Mich. 27 Eliz. In the Common Pleas.

IN Disceit by Griffith against Agard and his Wife;1 Len. 290. For that a Fine was levied of a Messuage, being Ancient Demesne, by which it became Frank-Fee; and the Fine was levied in the life of A. Griffith, Grandfather of the Plaintiff: Exception was taken to the Writ, because it is brought by the Plaintiff as Cosen and Heir of A. G. his Grandfather; And in the beginning of the Writ, the words are, Si Henricus Griffith fecerit te securum; without saying, Cousen and heir of A. G. fecerit te securum. But the Exception was not allowed; For afterwards in the Writ, these words are, Cujus haeres ipse est. See the Register, 238. that it is sufficient, if there be in the body of the Writ, these words, Cujus haeres ipse est.

Another Exception was taken to the Declaration, in that it is alledged, that the Lands were, De antiquo Dominico Dominae Re­ginae Angliae; wereas it ought to have been, De antiquo Domi­nico [Page 118] Dominae Coronae suae, &c. The Opinion of the Court was, That it was good both ways. See Book Entries, 100. antiquo Do­minco Coronae, & 58. de antiquo Dominico Domini Regis.

CLXVII. Bashpool's Case. Mich. 27 Eliz. In the Kings Bench.

2 Len. 101. Stiles Rep. 148.THe Case was, The Father was seised of Lands in Fee, and bound himself in an Obligation; and devised his Lands unto his Wife, until his Son should come to the age of 21 years, the Remainder to his Son in Fee, and died, and no other Land descend­ed or came to the Son from the Father. It was moved by Godfrey, That the Heir in this case might elect to waive the Devise, and to take the Land by Descent. See 9 E. 4. 18. by Needham. But it was the Opinion of Gawdy and Shute, Iustices, That the Son should be adjudged in by Descent; and so bounden with the Debt.

CLXVIII. Branthwait's Case. Mich. 27 Eliz. In the Kings Bench.

DEbt brought by J. D. against Branthwait upon an obliga­tion; the Condition of which was, That whereas J. F. claimed to have a Lease for years of the Mannor of D. made and granted to him by one W. D. If the said Branthwait keep with­out damage the Plaintiff, from all claim and Interest to be chal­lenged by the said J. F. de tempore in tempus during the years, &c. and also deliver the said Lease to the Plantiff, that then, &c. The Defendant pleaded, That the said J. F. had not any such Lease, and that after the making of the said Obligation, untill the Action brought, the Plaintiff was not damnified ratione dimissionis prae­dictae. Exception was taken to the same, because, where the words of the Condition are, Keep without damage the Plaintiff from all Claim and Interest: And he hath pleaded, That the Plain­tiff was not damnified ratione dimissionis, &c. But the Exception was disallowed by the Court; For if he were not damnified ratione dimissionis, then he was not damnified by reason of any Claim or Interest. Another Exception was taken, Because he could not now say, there was no such Lease: For it is recited in the Obliga­tion, That J. F. claimed to have a Lease: and therefore by this recital he is estopped, &c. And see where a Recital is an Estoppel, 8 R. 2. Fitz. 2 Len. 11. tit. Estoppel, 283. 39 E. 3. 3. Fitz. Estoppel, 112. 46 E. 3. 12. It was holden by the Court, That it was a good Estoppel. And afterwards, Iudgment was given for the Plaintiff.

CLXIX. Mich. 27 Eliz. In the Kings Bench.

DEbt upon an Obligation; The words of the Obligation were; I am content to give to W. 10 l. at Michaelmas; and 10 l. at our Lady day. It was holden by the Court, That it was a good Obligation: And it did amount to as much as, I promise to pay, &c. It was also holden by the Court, That an Action of Covenant lay upon it, as well as an Action of Debt, at the Election of the Plantiff. And it was holden, That although the Action is for 40 l. and the Declaration is 20 l. and 20 l. at two several days; yet it is good enough, and the Declaration is well pur­suant to it: And afterwards, Iudgment was given for the Plaintiff.

CLXX. The Queen and Kettell's Case. Trin. 27 Eliz. In the Common Pleas.

THe Queen brought a Writ de Valore Maritagii against Ket­tell, and Counted of a Tenure in Chief. The Defendant pleaded, That, pendant the Writ, the Queen had granted to one Edmund Kettel, Custodiam & Maritagium of the said Defendant, with whom he had Compounded. It was holden by the whole Court, to be no Plea; for the Letters Patents were void, be­cause the Queen was deceived in her Grant: for it appeareth by the Count, that the Defendant before the Grant of the Queen, was of full age; And by the Letters Patents, the Queen intend­ed that he was within age; and, by the same, granted Custodiam, &c.

CLXXI. Mich. 27 Eliz. In the Common Pleas.

A. Seised of Land, by his Will Devised,1 Len. 31. That his Executors should sell the Lands, and died; the Executors levied a Fine thereof to one F. taking Mony for it of F. The Question was, If in title made by the Conusee to the said Lands by the Fine, It be a good Plea against the same to say, Quod partes Finis nihil habu­erunt? Anderson conceived, That it was. But by Windham and Periam, upon Not guilty, the Conusee may help himself, by giving in Evidence the special matter; in which Case the Conusee shall be adjudged in, not by the Fine, but by the Devise. And Windham said, That if A. Devise, That his Executors shall sell a Reversion of certain Lands of [...]hich he dieth seised, and they sell the same without Deed, the same is well enough; for the Ven­dee is in by the Devise,1 Iust. 113. a. and not by the Conveyance of the Execu­tors; Quod vide 17 H. 6. 23. And by Periam, The Conusee may help himself in pleading; As he who is in by the Feoffment or Grant of Cestuy que use, by the Statute of 1 R. 3.

CLXXII. Lee and Loveday's Case Trin. 27 Eliz. In the Common Pleas.

TEnant in tail leased for 60 years, and afterwards levied a Fine to Lee and Loveday, sur Conusans de Droit come ceo, &c. and their Heirs in Fee: And afterwards, the Lord of the Mannor of whom the Land was holden, brought a Writ of Disceit, and upon that, a Scire facias against the Conusees, supposing the Land to be Ancient Demesne. The Defendants made default, by which the Fine was annulled, and now the Issue in tail entred upon the Lessee for years; and he brought an Ejectione firme. And it was found, that the Land was Frank-Fee. And the sole Question was, If by the Reversal of the Fine by the Writ of Disceit, without suing a Scire facias against the Ter-Tenant, should bind him? Atkinson, It shall not bind the Lessee for years; For a Fine may bind in part; and in part, not: as, bind one of the Conusees, and not the other. As. 7 H. 4. 11. a Fine levied of Lands part Ancient De­mesne, and part at the Common-Law, and by a Writ of Disceit, the Fine was reversed in part; scil. as to the Land in Ancient Demesne; and stood in force for the Residue. See 8 H. 4. 136. And there by the Award of the Court, issued a Scire facias against the Ter-Tenant; And the Iustices would not admit of the Fine without Certificate that the Land is Ancient Demesne, notwith­standing that the Defendant had confessed it. But as to those which were parties to the Fine, the Fine was become void be­tween the parties; and he who had the Land before, might enter. See 8 E. 4. 6. And it would be a great inconvenience, if no Scire facias, or other Process, should be awarded against the Ter-Te­nant; For he should be dispossessed and dis-enherited without pri­vity or notice of it. Whereas upon a Scire facias he might plead matter of discharge, in bar of the Writ of Disceit, Release, &c. which see, Fitzh. Na. Br. 98. and so, although that the Fine be reversed; yet he may retain the Land. And he resembled the same to the Case of 2 H. 4. 16, 17. In a Contra formam Collationis against an Abbot; A Scire facias shall issue forth against the Feof­fee: and by the same reason, here in this Case. And for the prin­cipal matter, he conceived, That the Fine should be awarded between the parties, but not against the Lessee. Kingsmill con­ceived, That a Scire facias brought against the parties only, was good enough; For they were parties to the Disceit, and not the Ter-Tenants, &c. it was Ad [...]rned.

CLXXIII. Trin. 27 Eliz. In the Kings Bench.

ERror was brought upon a Iudgment in a Quid juris clamat: It was assigned for Error, That the Tenant appeared by Attorny; which Act he ought not to do in his own proper person, if it be not in case of necessity; where in such case an Attorny may be received by the King's Writ, and plead matter in bar of the Attornment. As if he claim Fee, &c. or other peremptory mat­ter, after which Plea pleaded, he may make an Attorny, 48 E. 3. 24. 7 H. 4. 69. 21 E. 3. 48. 1 H. 7. 27.

Another Error was assigned, Because it is not shewed in the Quid juris clamat, what estate the Tenant hath. Another matter was, If the Grantee of the estate of Tenant in tail after possibility of Issue extinct, should be driven to Attorn? And conceived, He should not, Because the priviledge passeth with the Grant. See 43 E. 3. 1. Tenant in tail after possibility of Issue extinct,Post. 241. shall not be driven to Attorn, 46 E. 3. 13. 27. therefore neither his Grantee. Williams, contrary, As to the appearance of the Tenant by At­torny, because the same is admitted by the Court, and the Plain­tiff, the same is not Error. Which see, 1 H. 7. 27. by Brian and Conisby, 32 H. 6. 22. acc. And he conceived, That the Grantee should be driven to Attorn; For no other person can have the estate of the Tenant in tail after possibility of Issue extinct, but the party himself, therefore not the priviledge: And although he himself be dispunishable of Waste; yet his Grantee shall not have such priviledge; As if Tenant in Dower, or by the Curtesie, grant over their estates, the Heirs shall have an Action of Waste against the Grantees for Waste done by the Grantees. But if the Heir granteth over the Reversion, then Waste shall be brought against the Grantees. See Fitzh. Na. Br. 57. And if two Coparceners be, and one taketh Husband, and dieth, the Husband being Tenant by the Courtesie, A Writ of Partitione facienda lieth against him; but if he granteth over his estate, no Writ of Partition ly­eth against the Grantee. 27 H. 6. Statham, Aid; Tenant in tail after possibility, &c. shall not have Aid, but his Grantee shall. Clark conceived, That the Grantee should not be driven to At­torn: If the Tenant in tail grant all his estate, the Grantee is dis­punishable of Waste: So if the Grantee grant it over, his Grantee is also dispunishable. It was Adjourned.

CLXXIV. Trin. 27 Eliz. In the Kings Bench.

Hob. Rep. 66.IN Action of Trespass against J.D. for breaking of his Close, &c. The Defendant pleaded, That the Trespass whereof, &c. was done by the Defendant, and one J.S. against which J.S. the Plaintiff at another time had brought an Action of Trespass, and Recovered, &c. and had Execution of the Damages, &c. Plowden said, It was a good Bar, for that all is but one Trespass; and satisfaction by one of the Trespassors, is satisfaction for the other: And if the Plaintiff had Released to the other Trespas­sors, the Defendant if he had it in his hand might well plead it. Wray conceived it a good Bar; For it is but one Trespass and one wrong, although in respect of the several persons of the Trespassors, there are several Corporeal Acts. Atkinson con­ceived, That the Bar was not good; and it is not like the Case of Release, for that taketh away the whole Trespass whosoever doth it: And this Action may be sued joyntly or severally against the Trespassors: and when the joynt suit is Released, the several suit is Released. Clench, If an Action of Trespass be brought against two, and they plead several Pleas, and afterwards one of them is found guilty by a several Iury, That Iury shall assess all the Damages; and if the other be afterwards found guil­ty, he shall be subject to the said Damages, although he was not party to the said Iury: and by the same Reason that he shall be charged with the same Damages, by the same Reason he shall have advantage of the satisfaction of them made by his Companion. See Br. Trespass, 2.

CLXXV. Hitchcock and Thurland's Case. Trin. 27 Eliz. In the Kings Bench.

IN an Action upon the Statute brought for taking of Lands to Farm by a Spiritual person, 21 H. 8. It was holden, That if any such Lease be made at this day to any Spiritual person, such a Lease is not void: But such a Lease extends to such Leases made before the Feast of St. Michael mentioned in the said Act, and not aliened before the said Feast, &c. And so it was said, It was lately adjudged in one Underwood's Case.

CLXXVI. Cutter and Dixwell's Case. Trin. 27 Eliz. In the Kings Bench.

AN Action upon the Case brought by Cutter against Dixwell: for that the said Defendant had exhibited a Bill to the Iustices of Peace against the Plaintiff, containing, That the Plain­tiff is an Enemy to all Quietness, seeking all means to disquiet his Neighbors, and hath used himself as a Lawless person; and having Process to serve upon one in the Parish; viz. the Parson, did keep the Process, and would not serve it but on the Sabbath day in the time of Divine Service, not having regard to her Majesties Laws, or the Quiet of his Neighbours. Vpon which Bill, the Iustices to whom it was exhibited, awarded Process against the Plaintiff, to find Sureties for his good behaviour. It was the Opinion of the Iustices, That upon this matter, an Action would not lie.

CLXXVII. Mason's Case. Trin. 26 Eliz. In the Kings Bench.

MAson Leased certain Lands to one R. for years; and after­wards leased the same Lands to one Tinter for years; Tin­ter Covenanted with the Defendant, That if the said R. should sue the said Mason by reason of the later Lease, that then he would discharge or keep harmless without damage the said Mason, and also would pay to him all the Charges which he should sustain by reason of any suit to be brought against the said R. in respect of the said former Lease: And Mason by the same Indenture Covenant­ed with Tinter, That the said Land demised, should continue to the said Tinter discharged of former Charges, Bargains, and In­cumbrances: And now upon the second Covenant, Tinter brought an Action of Covenant, and shewed, That the said R. had sued him in an Action of Ejectione Firme upon the said first Lease, and had recovered against him, &c. And Mason pleaded in Bar, the said second Covenant, intending that by that later Covenant, the Plaintiff had notice of the said former Lease made unto R. so as the first Lease shall be excepted out of the Covenants of former Grants; for otherwise, there should be circuity of Action. But the Opinion of the whole Court was to the contrary: For the Cove­nant of Mason shall go to the discharge of the Land; but the Co­venant of Tinter only to the possession.

CLXXVIII. Knight and Beeches Case. Pasch. 27 Eliz. Rott. 1127. In the Common Pleas.

1 And. 173. Coke 5. Rep. 55. 1 Len. 12. 2 Len. 134. WIlliam Knight brought Ejectione Firme against William Beech. The Case was, That the Prior of St. Johns of Jerusalem, 29. H. 8. with the assent of his Covent, leased by In­denture divers Houses in Clarken-well, in the County of Middle­sex, for fifty years, to one Cordel, rendring Rent 5 l. 10 s. and 11 d. at four Feasts of the year, usual in the City of London, viz. for such a Messuage, called The High-House, 14 s. for another House, 3 s. 11 d. for another House, xx s. &c. Et si contingat dictum annualem redditum, 5 l. 10 s. 11 d. a retro fore, in parte vel in toto, ultra aut post aliquem terminum solutionis, in quo solvi debe­ret, per spatium trium mensium, &c. quod tunc, & ad omnia tem­pora deinceps, ad libitum, &c. liceret dicto Priori, & Successori­bus suis, & omni tali personae & personis, quam vel quas dictus Pri­or & Successores sui nominarent & appunctuarent, sine scripto, in omnia dicta tenementa totaliter re-entrare, &c. And afterwards, 32 H. 8. the said Hospital of St. Johns was dissolved, and the pos­sessions of it granted to the said King; and afterwards the said King, 36 H. 8. gave the said House, upon which the said Rent of 20 s. was reserved, to one Audley, &c. in Fee: And afterwards the now Queen being seised of the residue, a Commission issued out of the Exchequer bearing Date 8 Maii, 23 Eliz. Ad inquiren­dum, Utrum the Defendant to whom the Interest of the said term did appertain, perimple visset & performasset omnes Provisiones fact. & reservat. in & super praedict. Indenturam, necne? Office was found before the Grant, and after 25 August following, the said Queen, by her Letters Patents, gave the said House, called The High-House, to Fortescue the Lessor of the Plaintiff; and af­terwards Tres Mich. the Commission was retorned, by which it was found all as aforesaid; Et quod Termini & Festi Solutionis in London, are Michaelmas, Christmas, Annunciation, and Mid-sum­mer; and that at the Feast of Michaelmas, such Rent was behind for the space of three Months, &c. It was argued in this Case by Gawdy, Serjeant, on the part of the Plaintiff, That here are several Rents; for the entire Sum by the viz. is distributed into several Portions, which make several Rents; and to that purpose he cited Winter's Case, 14 Eliz. Dyer, 308. A Lease for years is made of the Mannors of A.B. and C. rendring for the Mannor of A. xx s. and for the Mannor of B. x s. and for the Mannor of D. x s. with a Condition for the Non-payment of the said Rents, or any of them, or any part or parcel of them, within one Month, &c. then a Re-entry; Here are several Rents: And he concei­ved, That a Condition in the Case of the King might be apporti­oned; For a Rent-charge, and a Condition, are in the King in [Page 125] better Condition than in a Subject, for the thing may distrain for a Rent-charge in all the Lands, of him who is seised of the Land out of which such a Rent is issuing; and if a Rent-seck be due to the King, he may distrain for the same; and the King shall never demand his Rent which he hath reserved with Clause of Re-entry; and it appeareth in the Register, That if before the Statute of Westm. 3. the King purchaseth parcel of the Land holden of him, the Rent shall be apportioned, which was not in the Case of a Common person, and there are in the Exchequer divers Presidents to that effect, scil. If A. be bounden in a Recognizance to B. and afterwards enfeoffeth the King of part of his Land, and C. of the other part: If B. be afterwards attainted of Treason, so as the said Recognizance accrueth to the King; that now, not­withstanding that he hath part of the Land lyable to the Recogni­zance, he shall have Execution of the residue. And see F. N. B. 266. If, after the Recognizance acknowledged, the Conusor en­feoffeth of certain parcels of his Lands several persons, and of the Residue enfeoffeth the King; that Land which is assured to the King is discharged of the Execution, but the residue shall be char­ged: So that the possession of the King doth alter the Nature of the Rent, Condition, and Execution. Fenner, Serjant, Con­trary. And he said, That this Grant before Office retorned was not good; for without Office the King cannot enter, multo minus his Patentee; and that the King by the Grant hath interrupted the Relation of the Office, As if a Man by Indenture bargaineth and selleth his Lands, and afterwards makes Livery to the Bargai­nee, and afterwards the Deed is enrolled. Now the party shall not be said to be in by the Bargain and Sale, but by the Livery; for the Livery hath interrupted the force of the first assurance by way of Bargain, and the Relation is utterly gone: So in our Case, The Grant of the Queen, mean between the Award of the Commission, and the Retorn of it, hath destroyed the force and ef­fect of the Commission, so as no appearance shall be had of it: And he agreed, That here are several Rents, but the Condition is en­tire; and admit, that a Condition may be apportioned in some Cases, yet in some Cases it cannot. And the Statute of 32 H. 8. gives the Condition and the Reversion, to which it is annexed, to the King, in such sort as it was in the Prior: But the Condition in the Prior was not capable of Apportionment, and therefore no more it shall be in the Case of the King. As where a Recogni­zance is acknowledged, whic [...] cometh to the King by the Attain­der of the Conusee; Now, if the King will sue Execution upon it, he shall not have the whole Land of the Conusor in Execution, but only the moyety by Elegit, &c.

This Case afterward, Trin. 28 Eliz. for Difficulty, was ad­journed into the Exchequer-Chamber, and there argued before all the Iustices, and Barons of the Exchequer. And Shuttleworth, Ser­jant, argued for the Plaintiff; And first he said, Here are several [Page 126] Rents, and so several Conditions, especially when all the things demised are of such a Nature, that they may yield a Distress: but if any of the things demised cannot yield Distress, then it shall be one entire Rent, and shall issue out of the Residue, &c. Which see, 17 Ass. 10. An Assise was brought of 20 s. Rent, and the said Rent was reserved upon a Lease for life made of 100 Acres of Lands, and 15 Acres of Wood; scil. for the Land 10 s. and for the Woods 10 s. And by the Assise it was found the Disseisin in the Wood, but not in the Land. Wherefore it was awarded, That the Plaintiff should recover seisin of the 10 s. and for the residue, that he should take nothing. And although these words (reddendo inde) Trench unto all the things demised entirely, yet this word (viz.) is a distributive, and makes an Apportionment; And the viz. is not contrary to the premisses; scil. to the reddendo inde. As if I enfeoffe A. and B. of an Acre of Land, Habendum the one moyety thereof to A. in Fee, and the other moyety to B. in Fee; this is good, for it well stands with the premisses. But if I en­feoffe A. and B. of two Acres of Lands, Habendum the one Acre to A. and the other to B. the same Habendum is void, because con­trary to the premisses, for each of them is excluded out of one Acre which was given to him in the premisses. And in our Case, If the Rent set forth in the (Viz.) had been greater or less than that which is reserved upon the Reddendo, then the (Viz.) should be void for the contrariety, and the Reddendo stand. Walmesley, contrary; And that here is one entire Rent. Which see to be so, by the close of the Condition, Si Redditus praedict' aut aliqua inde parcella, &c. And the Lessor may distrain in any part of the Land demised for the whole Rent, notwithstanding the (Viz.) And it was moved by Shuttleworth, That admit the Rent and Condition be entire; Yet now when the King grants the Reversion of one of the things demised in Fee to a stranger, the Condition re­mains, and not determined by the destruction of the Reversion, as in the case of a Subject: For the King hath divers Prerogatives, by which he is exempted and protected from such Mischiefs and Inconveniences which happen to Subjects by their own Acts and their Laches and Folly, which shall not be imputed to the King; And the reason of Extinguishment of a Condition in such case in the case of a Common person, is his own Folly, that he will distra­here his Reversion; And Folly shall never be imputed to the King: And as the Case is here, the King is not bound to take notice of a Condition made by a Common [...]erson; For it is not matter of Record, and by this Grant of the King, the Rent doth not pass; for the Grant is only of the Reversion, without any mention of the Rent. And the King hath divers Prerogatives in a Condition; As in the creating of a Condition, 35 H. 6. 38. The Abbot of Sion's Case, Ad effectum, is a good Condition in the Case of the King, by Prison: And where the King grants Lands in Fee to one upon Condition, That the Grantee shall not alien, the same is a [Page 127] good condition. So for a Rent-Seck, the King may distrain; And the King may reserve a Rent and a Condition to a stranger; and if he doth reserve a Rent and a Condition to himself, he may grant the same over to a Subject, 2 H. 7. 8. And the Condition in the case of a Common person may be apportioned: As if Lessee of two Acres upon Condition, alien one of them in Fee, and the Lessor entreth for the forfeiture, or recovereth part in an Action of Waste, &c. but of a surrender, it is otherwise. Walmesley contrary; The Condition is gone; For a Condition in the hands of the King is of the same Nature, as in the case of a common person, im­patient of any Division, Partition, or Apportionment: As, if the King hath a Rent out of 3 Acres of Land, and afterwards pur­chaseth one of them, the Rent is utterly gone, and shall not be ap­portioned as well as in the Case of a common person: So of a Common. And as this Case is, If the Condition doth remain, then, upon the breach of it, the King shall enter into the whole; for the words of the Condition are, Wholly to re-enter; and so he should defeat his own grant. And he cited a Case adjudged at the Assizes at York; The King gave Land in Fee-Farm, rendring Rent, with Clause of re-entry: The King granteth the Rent over to a stranger; And after, the Rent is behind; The King cannot re-enter, nor the Grantee.

It was also moved, If the Iurors of Middlesex might enquire of the usual Feast days in London. Shuttleworth, That they might do so. See 5 H. 5. 23. Where a Commission issued out to en­quire in the County of Surrey, of Escheats, words, &c. who found, that A. held of the King in Chief, and took to Wife one E. Cosen of A. within the Degrees they then knowing of it, and had Issue betwixt them; and afterwards they were Divorced in the County of Kent, &c. And Exception was taken to that Office, Because the Enquest of Surry had found a Divorce in the County of Kent. Another matter was, Because the Iurors have found the breach of the Condition; And before the Iurors had put their Hands and Seals to the Inquisition, the Queen granted part of the things demised in his hands, to Fortescue; After which Grant, the Inqui­sition was sealed, and Retorned into the Exchequer: If now, the Grant to Fortescue be good, or not? Vide inde, Dyer, 2 Eliz. 17. Vpon a Writ of Mandamus, The Escheator charged the Enquest, who were agreed of their Verdict, and delivered the same in Paper to the Escheator; And, before the engrossing, sealing, and delivery of it, came a Supersedeas: And it was Resolved, by all the Iusti­ces, That before the engrossing, indenting, and sealing, it was no Verdict. See this Case Reported in Cook 5. Part, 54.

CLXXIX. Nelson's Case. Pasch. 27 Eliz. In the Common Pleas.

IN Trespass brought by Nelson, chief Preignothory of the Court of Common Pleas, the Case was, That the Abbot of D. was seised of a Common out of the Lands of the Abby of S. as ap­pendant unto certain Lands of the said Abby of D. And afterwards the said Houses were dissolved, and the possessions of them given to the King by Act of Parliament, to have and hold in as large and ample manner and form as the late Abbots, &c. After which, the King so being seised, granted the said possessions of the said Abby of D. to A. and the possessions of the said Abby of S. to B. It was argued, That the Common, (notwithstanding the unity of posses­sion) did continue; For unity of possession is so qualified and re­strained by the Statute, by the words aforesaid, and also by the words (in the state and condition as they now be,) And the Abbot of D. was seised in the right of his House, of the said Common; Therefore so also shall be the King, and his Patentees; and so a special seisin is given to the King. Rhodes, Windham, and Anderson, Iustices, to the contrary. And the said words in the said Statute are to be construed according to the Law, and no further; And by the Law, the said Common cannot stand against the Vnity of possession.

CLXXX. Leonard's Case. Trin. 28 Eliz. In the Common Pleas.

2 Len. 192. 2 Roll. 787. LEonard, Custos Brevium, brought an Action of Trespass for breaking of his Close: The Defendant pleaded, That William Heydon was seised and enfeoffed him; And upon Ne en­feffa pas, they were at Issue. And it was found by Special Verdict, That the said William Heydon was seised, and leased to the De­fendant for years, and afterwards made a Charter of Feoffment to him, by these words, Dedi & Concessi, with a Warrant of At­torny in it, and delivered the same to the said Lessee; who deli­vered the same to him who was made Attorny in the said Deed, who made Livery accordingly. It was moved by the Plaintiff's Counsel, That here is not any Feoffment found, but only a Con­firmation; For as soon as the Charter was delivered to the Lessee for years, the Law gave it its operation to that effect, to vest the Fee in the Lessee by way of Confirmation. See Litt. 532. But the Opinion of the whole Court was clear to the contrary; for here the Lessee hath liberty, how and by what Conveyance he shall be adjudged seised of the Land, either by Feoffment, or by Confirmation: And it appeareth here, That when the Lessee de­livered [Page 129] the Charter to the Attorny; And also when the Lessee ac­cepted Livery from the Attorny, he declared his meaning to be, That he would take by the Livery: And the Lord Anderson said, That if Tenant in tail be disseised, and makes a Charter-Feoff­ment with a Warranty of Attorny, and delivers the same to the Disseisor, who delivers the same to the Attorny, who makes Li­very accordingly, the same is a good Feoffment, and so a Discon­tinuance. And after many Motions, the Court awarded, That the Plaintiff should be barred.

CLXXXI. Palmer and Waddington's Case. Trin. 28 Eliz. In the Common Pleas.

RIchard Palmer brought an Action upon the Case against An­thony Waddington; And Declared, That Henry Wad­dington, Brother of the Defendant, was endebted to the said Plaintiff in 20 l. Et jacens in extremis, & mortem indies expectans, vocavit ad se dict. Anthonium quem executorem Testamenti & ul­timae voluntatis Constituisset, eum rogans ut dictas 20 Libras prae­fato Richardo infra spacium duorum Mensium mortem suam proxime sequend. numeraret & solveret; Et dictus Anthonius in Considera­tione inde super se assumpsit, &c. And all the matter aforesaid was found by Verdict, upon Non Assumpsit pleaded. And it was the Opinion of the whole Court, That the Declaration was insuffi­cient, because there is not any good Consideration set forth in it; for it is not said, That in Consideration that the said Henry made the Defendant his Executor. &c.

CLXXXII. Stransham and Collington's Case. Trin. 28 Eliz. In the Kings Bench.

THe Plaintiff sued in the Spiritual Court for Tythes against the Defendant within the Parish of C. The Defendant said,1 Cro. 128. That the Tythes are within the Parish of A. and the Parson of A. came in pro interesse suo, and thereupon they proceeded to sen­tence, and that was given against Stransham, who now sued a Pro­hibition: And the Question was, If within such a Parish or such a Parish, be tryable by the Law of the Land, or by the Law of the Church? Wray, Chief Iustice, said, It hath been taken, That it is tryable by our Law. Fenner, The Pope hath not distinguished Parishes, but hath Ordained, That Tythes shall be paid within the Parish.

CLXXXIII. Higham's Case. Mich. 28 Eliz. In the Common Pleas.

2 Len. 226. More Rep. 221. 1 Cro. 15.IT was found by Special Verdict, That Thomas Higham was seised of 100 Acres of Lands called Jacks, usually occupied with a House; And that he Leased the said House, and 40 Acres of the said 100 Acres to J.S. for life, and made his Will; by which he devised the said House and all his Lands called Jacks, then in the Occupation of J.S. to his Wife for life: and that after the decease of his Wife, the Remainder thereof, and of all his other Lands appertaining to Jacks, to Richard his second Son, &c. It was said by Meade, That the Wife should not have by Implication the Re­sidue of Jacks, for that she hath an express estate in the House, and 40 Acres of the Land; and her Husband having expressed his Will as to that, his Will shall not be construed by Implication to pass other Lands to the Wife. And it was said by him, That it had been adjudged in the Case between Tracy and Glover, That if Lands be devised to one and to his Heirs, and if he dieth without Heir of his body,1 Roll. 839. that then the Land shall remain over; that in such case, the Donee hath but an Estate in tail to him and the Heirs males of his body.

And it was then also said by Anderson, Chief Iustice, That in the time of Sir Anthony Brown, it was holden, That if a Man be seised of two Acres of Land, and devised one of them to his Wife for life, and that J.S. shall have the other Acre after the death of his Wife; that the Wife hath not any estate in the later Acre, for the cause aforesaid: Afterwards, It was moved, What thing passed to the second Son by that Devise? And the Lord An­derson conceived, That the words in the Will, Usually Occupied with it, did amount to as much, as Land let with it; and then the 60 Acres were not let with it, and therefore did not pass. Windham, Iustice, held the contrary; and he said, Although they do not pass by the words, Occupied with it; yet it shall pass to the Son by the name of Jacks, or, the Lands appertaining to Jacks, To which Anderson, mutata opinione, afterwards agreed.

CLXXXIV. Wroth and the Countess of Sussex Case. Pasch. 28 Eliz. In the Kings Bench.

Co. 6. Rep. 33. 1 Len. 35. 4 Len. 61.THe Case was this, In Anno 4 & 5 of King Philip and Queen Mary; A private Act of Parliament was made, by which it was Enacted, That the Mannor of Burnham was assured to the Countess of Sussex for her Ioynture; with a Proviso in the Act, That it should be lawful for the Earl of Sussex to may a Lease or Leases for 21 years; and afterwards, a year before the first Lease [Page 131] was ended, he made another Lease for 21 years, and this second Lease was to begin and take effect from the end of the first Lease. And if this second Lease were a good Lease within the intent and meaning of the Act, was the Question?

Popham, the Queens Attorny General said, That it was not; 1. Because it was a Lease to begin at a day to come: And, 2. Be­cause it was made before the first Lease was ended. But he said, It may be Objected, That the Act saith (Lease or Leases,) It is not the sense of the Act, that he might make Leases in the Rever­sion: but the sense and meaning of the Makers of the Act, was, That he might make Leases in possession, and not Leases in futuro; for if it should be so, then he might make a Lease for 21 years to be­gin after his death: which should be a great prejudice to the Coun­tess, and against the meaning of the Act, which was made for her advantage.

The Lord Treasurer, and Sir Walter Mildmay, Knight, have a Commission from the Queen to make Leases of the Queens Lands for 21 years, because the Queen would not be troubled. It was holden, That by virtue of that Commission, they could not make any Leases, but Leases in possession only: But all other Leases which did exceed the Term of 21 years, and in Reversion, were to pass by the hands of the Queen, and her Attorny Gene­ral, and not by them only by virtue of their said Commission. And if I grant to one power before the Statute to make Leases of my Land for 21 years, he cannot make any Lease, but only Leases in possession; and he cannot Lease upon Lease, for by the same reason, that he might make one Lease to begin in futuro; by the same rea­son he might make 20 several Leases to begin in futuro; and so frustrate the Intent of the Act. It was Marshall's Case upon the Statute of 1 Eliz. of Leases to be made by Bishops; The Bishop of Canturbury made a Lease to him for one and twenty years; and afterwards he made a Lease unto another for 21 years to begin at the end of the first Lease. And it was holden, That the second Lease was void. But in the great Case which was in the Exchequer-Chamber, upon this Point, There the second Lease was in posses­sion, and to begin presently, and to run on with the other Lease; and therefore it was adjudged to be good, because the Land was charged with more than 21 years in the whole. And if the Earl had done so here, it had been a good Lease. Wray, Iustice, said, That if the second Lease had been made but two or three years be­fore the expiration of the first Lease, that then it had been utterly void; but being made but 2 or 3 days or months before the ex­piration of the first Lease, he doubted, If it should be void, or not. The Statute of 32 H. 8. makes Leases for 21 years, to be good from the day of the date thereof: And a Lease was made to begin at a day to come: And yet it was holden by two of the Iustices in the Court of Common Pleas, That it was a good Lease: And by two other Iustices of the same Court, it was holden, the Lease was [Page 132] not good. And Clench, Iustice, said, That there was no diffe­rence, If it be by one Deed, or by two Deeds: And therefore he held, That if the Earl had made a Lease for 21 years, and with­in a year another, the same had been void, if it were by one Deed, or two Deeds, for that he did exceed his authority. And he said, In the principal Case, If there had not been a Proviso, he could not have made a Lease; and therefore the Proviso which gave a power to make a Lease for 21 years, should be taken strictly. There was a Case of the Lord Marquess of, &c. that it should be lawful for him to make Leases for 21 years by a Statute; And he made ano­ther Lease to begin after the end or expiration of the first Lease; and it was doubted, Whether it were a good Lease or not, because he had not made any Lease before: But if both were made by force of the Statute; all held, That the second Lease was void.

At another day, the Case was argued by Daniel, for the Lease in Reversion to begin at a day to come. And he said, That in a Sta­tute the words alone are not to be considered, but also the mean­ing of the parties, and they are not to be severed. Also he said, That a Statute-Law is to be expounded by the Common-Law: And by the Common-Law, If one giveth power unto another to make Leases of his Lands, he might make Leases in Reversion, be­cause an Authority is to be taken most beneficially for them for whose cause it was given. So that if a Man grant an authority to another to make Estates of his Lands, by those general words he may make Leases for years or for life, Gifts in tail, Feoffments, or any Estates whatsoever; If one gives a Commission to another to make Leases for one and twenty years of his Lands, he may make a Lease in Reversion; and so it was holden in the Dutchy in the Case between Alcock and Hicks. Also he said, That this Lease was a good Lease by the Statute-Law: For the Statute of Rich. 3. gives authority to Cestuy que Use, that he may make Estates in Reversion. The Statute of 27 H. 8. which gives au­thority to the Chief Officer of the Court of Surveyors to make Leases, if it had stayed there, he might have made Leases in Rever­sion; Therefore the Statute goes further, and saith, Proviso, That he shall not make a Lease in Reversion. See 19 Eliz. Dyer, 357. The Statute of 35 H. 8. of Leases to be made by the Hus­bands of the Lands of their Wives, By the general words of the Statute they might have made Leases in Reversion; And there­fore the Case there was, That where the Husband had made a Lease of his Wives Lands for 21 years; and afterwards he made another Lease for 21 years, to begin after the Lease in esse: It was conceived, That such a Lease was good, because in the Act there was no restraint of Leases in Reversion, as there is in the Statute of 32 H. 8.

In all Cases of Statutes which are with Provisoes, the Law upon them shall be taken generally, but in such Particulars only as are restrained by the Proviso; and here in this Case, the Pro­viso [Page 133] went to the Ancient Rent to be reserved, and that the Coun­tess should have remedy for the said Rent; and therefore it shall be construed at large as unto all other points which are not re­strained by the Proviso.

As if the Wife be within age, and she and her Husband joyn in a Lease, yet such a Lease shall be good, by the Statute of 32 H. 8. because the Law is general, and doth not restrain these imperfecti­ons expresly. So if a Feoffment in Fee be made with warranty, Pro­viso, That he shall not vouch; yet that restraint goes to the Voucher only, and he is at large to Rebutt, or to have a Warrantia Char­tae. A Lease is made for life, Proviso, That he shall not do volun­tary Waste; he is at large to do any other Waste: Otherwise it would be, if there were no Proviso,; and there a Proviso makes the precedent words to be expounded more liberally. The Stat. of 33 H. 8. Cap. 39. of Surveyors, which giveth authority to the Chief Officer to set, or let for 21 years, he might have made a Lease for 21 years, if by the Proviso he had not been restrained; and yet the words are put singularly: But the words of this Act, upon which the Case in Question doth arise, are Lease or Leases; and therefore it shall be expounded most liberally for the party.

Again, he argued, That as to the intent of the Statute, that this Lease was within the meaning of it; for the meaning is to be collected out of the words, and shall not be drawn to any private construction or intent against the words, which should be here, if this Lease should be avoided: For by such construction and exposition, the Earl, his Heirs, Executors, &c. should be prejudiced, and the Countess only should be benefited. Also by this Act remedy is gi­ven to the Countess against such Lessees, that she should have the Rent, by Debt, or Distress; as if she had been party or privy: therefore it is reason, via versa, that the Lessees have remedy against her for their Leases. Also he said, That the same remedy should be for them against the Countess, as they had against the Earl himself if he had been alive; and therefore they should have such remedy against the Countess, as they had against the Earl. And further he said, That the Statute is to be expounded according to the words where such an Exposition is not rigorous, nor mischievous: And private Laws are to be expounded by the letter, and strictly, as the Deed of the party shall be. As 14 E 4. 1. Br. Parliament, 61. A Particular Act was made, That the Chancellor calling unto him one Iustice, might award a Subpena between A. and B. and end the matter betwixt them: And there, by all the Iustices, except Littleton, He shall not award a general Sub­pena, but a special Subpena, making mention of the Act; for he shall pursue the particular Act strictly: But an Act which is for the common profit, shall be expounded largely. Also a Statute shall not be expounded largely, or by Equity to overthrow an Estate. As the Statute which gives, That if the Woman doth consent to the Ravisher, that the next Heir shall enter: If the Daughter en­treth; and after a Son is born; he shall not put out the Daughter, [Page 134] because the Statute shall not be drawn to a private intent, to the overthrow of the Estate before lawfully vested in the Daughter: And so in the principal Case, the Statute shall not be drawn to a pri­vate intent for the benefit of the Countess, to overthrow the Lease for years. And it is not like to the Case which hath been put, That if he maketh a Lease for 20 years, and so for 20 years; that the same is not good by the Statute; For I will agree, That that is a Lease for 40 years. Egerton, Sollicitor, contrary; First, as to the word (Demise, or Dimission,) it is nothing else but the letting of the Land, and so (Lease) comes from (Laiser) a French word; and such a Lease it self, for he hath not left the Land. As if I say to you, I Let you my Lands for 21 years; When shall you have my Land? Not at a day to come, but presently. If I sell you Land, and Covenant, that it is discharged of another Lease for 21 years, and there is a Lease to Commence after the Lease for 21 years, I have broken my Covenant. If I be bounden to make you a Lease for 21 years, and I say to you, I make you a Lease to begin 200 years hence, I have forfeited my Bond. If the Custom of the Mannor be, that Dominus pro tempore may make a Lease for 21 years, may he make a Lease to begin at a day to come? Truly no, if there be not a special Custom so to do. If I give authority to my Steward to make Leases of my Lands for 21 years, he cannot make a Lease to begin 100 years after. As to the Case of the Dutchy, there the Commission was, That he might make Leases according to his discretion, therefore there he might make what Lease he pleaseth. As to the Statute which enableth Cestuy que Use, of 1 R. 3. that Case is not like to our Case, for that Act is, All Feoffments, Estates, &c. therefore he might make such Lea­ses without doubt. And if I devise, That my Executors shall make Leases of my Lands for 21 years, they cannot make Leases to begin at a day to come; and if they do not make the Leases within convenient time, the Heir shall enter, and avoid their autho­rity.

And Statute-Law shall have such an Exposition, as that the precise time ought to be observed; As the Statute of 14 E. 3. Rastal Voucher, 8. If the Tenant voucheth to warranty a dead Man, and the Demandants will aver, That the Vouchee is dead, or that there is no such, their Averment shall be received without more delay. Vpon this Statute the Case was, 21 E. 3. Where­one was vouched to warranty, and the Summoneas ad Warranti­zandum issued, and then came the Demandant and would have averred, That the Vouchee was dead; And the Tenant said, That he ought to have averred that upon the voucher to warranty, and that now he had surceased his time: And the Demandant said, That the Statute did not bind him to that, nor did prescribe any time, but left the same generally. Yet it was the Opinion of the whole Court, That he should have the Averment at the time of the [Page 135] Voucher, or not at all. So the Statute of 11 H 7. Cap. 20. If a Woman who hath a Ioynture for life or in tail, suffereth a Re­covery, and afterwards the Issue in tail releaseth all his Right by Fine, and dieth, his Issue may enter; for the assent ought to be by Voucher in the same Action, or the like: for if there be a mean instant between the Recovery and the Assent, then any assent after is nothing to the purpose; for the Recovery being once void by the Statute, cannot be made good by an assent afterwards. See Doctor and Student, 54. And yet the Statute is, Provided, That the Statute shall not extend to any such Recovery, &c. if the next Heir be assenting to the same Recovery, &c. so as the same assent, or agreement be of Record, or inrolled. And it doth not say, That the Assent should be at one time, or at another. But to come to Leases upon Statutes. Before the Statute of 2 E. 6. Cap. 8. If Leases had not been found by Offices, the Lessees should have been ousted, and put to their traverse: But put Case, that after that Statute, a Lease made to begin at a day to come, were not found by Office, should it be helped by that Statute? No truly; And so it is holden in the Court of Wards at this day; and the Lord Chief Iustice of England held so in his Reading at Lincolns-Inn.

The Statute of 1 Eliz. of Leases to be made by Bishops, is, That Leases other than for 21 years from the time that they be­gin; that is, when they may take effect as Deeds, and not when they shall take effect to be executed; For so they might make Lea­ses infinite, &c. It was adjourned, &c.

CLXXXV. Lewen and Mody's Case. Mich. 28 & 29 Eliz. Rot. 2494. In the Common Pleas.

IN a Replevin brought by Lewen, Doctor of the Civil Law, against Mody; who made Conusans as Bailiff to one Fowke, and shewed, That 14 Elizabeth, the morrow of the Purification, a Fine was levied between Lovelace and Rutland Plaintiffs, and the said Fowke and other Deforceants: by which Fine, the said Deforceants acknowledged the said Mannor to be the right of the said Lovelace and Rutland, come ceo, &c. And the said Lovelace and Rutland, by the same Fine, granted and rendred to the said Fowke a Rent of 20 l. per annum in Fee out of the said Mannor; And for the Rent arrear, &c. And the Plaintiff in bar of the Co­nusans, shewed, That the said Fowke being seised of the said Rent, granted the same to one Horden, &c. Vpon which Grant they were at Issue: And the Iury found, That the said Fowke being seised of the said Rent, by Indenture reciting, That whereas a Fine was levied between Fowke and 7 others Plaintiffs, and Love­lace and Rutland Deforceants; as the rest ut supra, granted red­ditum praedict. to Horden; and further found, that no other Fine [Page 136] was levied between the parties aforesaid but the said Fine, and that the parties to the Fine were seised of the Mannor at the time of the Fine levied, and of no other Land: And if this Rent so descri­bed by the said Indenture, should pass or not, was the Question? And it is to be observed, That the Indenture of Grant between Fowke and Horden, recited a Fine of the Mannor of Coleshall inter alia, where the Iury have found, That the Fine was levied of the said Mannor only. And it was argued by Shuttleworth, That the said Rent did not pass to Horden by the said Indenture; for the Rent, bescribed by the Indenture, is not the Rent which was granted by the Fine: And if I let Lands for years to A. and after­wards A. grants the Land which B. holds of me, the Grantis void; As 13 E. 3. Grants, 63. Land is given to Husband and Wife for their lives; And the Lessor grants the Reversion of the Land which the Husband holdeth for life, nothing passeth. Walmesley, contrary; The variance in the Fine shall not avoid the Grant; For the In­denture of the Rent agrees with the Fine, in the Term, in the year of the Reign, and in the name of the parties to the Fine, in the quantity of the Rent, and in the Land charged; the only diffe­rence is in the phrase of Law, Deforceant for Plaintiff; and it is granted, that that is but a matter of Circumstance, and not of sub­stance. Snag, Serjeant, contrary. And first he took Exception to the Verdict; for this, that a special Verdict is given upon a special Abs (que) hoc. And the Lord Anderson interrupted him, That it was a clear Case, That such a Verdict upon such an Issue might be found. And so it was adjudged in the Case between Vavasour and Doleman. Fenner argued, as Walmesley, The Grant agrees with the Fine in the points of greatest importance, and one falsity shall not prejudice it where there are so many verities which may induce the Court to judge, That the Rent granted by the Indenture, is the Rent created by the Fine: and in a Fine, the substance is not, Who was Deforceant, who was Plaintiff; but who was party to the Fine? And that some of the parties to the Fine were seised of the Land of which the Fine is levied: And if the Indenture had been, Whereas such a Rent was granted by a Fine levied between A. and B. without shewing who was Plaintiff, and who Deforceant, it had been good enough. And although that in this Case, the Plaintiff and Deforceant are mis-set down, yet the same shall not make the Grant void; for utile per inutile non vitiatur. So if I reciting, The Original Grant was made to me by Indenture Tri­partite between A. of the first part; B. of the second part; and my self of the third part; whereas the Indenture it self is, Between myself of the first part, the same is not material, &c. For, such a small mistaking shall not avoid the Grant. So if I by my Deed reciting, That whereas I am possessed of certain Lands for Term of years of the Demise of Sir Christopher Hatton, Knight, Trea­surer of England; whereas in truth he is Chancellor; that mista­king of the Dignity shall not prejudice the Grant. And it was [Page 137] Agreed by all the Iustices, If the said Fine had been pleaded at it is recited in the Indenture, mistaking the Plaintiff and Deforceant; he who had so pleaded it, had failed of his Record; But in the Case at Bar, the reciting who was Plaintiff, who Defendant, was matter of surplusage, and therefore it shall not hurt the party. As 23 Eliz. Dyer, 376. A. seised of a House in D. which he purchased of Tho. Cotton, he made a Feoffment thereof by these words; A House in D. late Richard Cotton's. And notwithstanding this va­riance, it was good enough; for the variance is in a thing which is matter of surplusage: and so much the rather, because the said A. had not another House in D. &c.

CLXXXVI. Lucas and Picroft's Case. Pasch. 28 Eliz. In the Common Pleas.

THe Case was, That an Assise of Novel Disseisin was brought in the County of Northampton, of two Acres of Lands;2 Len. 41. and as to one Acre, the Tenant pleaded a plea tryable in a Forreign County. Vpon which the Assise was adjourned into the Common Pleas, and from thence into the forreign County; Where, by Nisi prius, It was found for the Plaintiff; and now in the Common Pleas, Snag, Serjeant, prayed Iudgment for the Plaintiff; and cited the Book, 16 H. 7. 12. Where an Assise is adjourned into the Common Pleas for difficulty of the Verdict, they there may give Iudgment. But all the Court held the contrary; For here is another Acre of which the Title is yet to be tryed before the Iusti­ces of Assise; before the tryal of which, no Iudgment shall be given for the Acre of which the Title is found. And the Assise is properly depending before the Iustices of Assise, before whom the Plaintiff may discontinue his Assise. And it is not like to the Ca­ses of 6 E. 4. and 8 Ass. 15. Where in an Assise, a Release was pleaded, dated in a forreign County; which was denyed: Where­fore the Assise was adjourned into the Common Pleas, and there found by Enquest, not the Deed of the Plaintiff's. Now if the Plaintiff will release his Damages, he shall have Iudgment of the Freehold presently. But in our Case, parcel of the Land put in View, remains not tryed; which the Plaintiff cannot re­lease, as he may his Damages,2 Len. 199. and therefore the Court remanded the Verdict, to the Iustices of Assise.

CLXXXVII. Hare and Mellers Case. Mich. 28 Eliz. In the Common Pleas.

Post. 163. HUgh Hare of the Inner-Temple brought an Action upon the Case against Phillip Mellers, and declared, That the Defendant had exhibited unto the Queen a slanderous Bill against the Plaintiff, charging the said Hugh to have recovered against the Defendant 400 l. by Forgery, Perjury, and Cosening; And also, that he had published the matter of the said Bill at Westm. &c. In this Case, it was said by the Court, That the exhibiting of the Bill to the Queen, is not in it self any Cause of Action; For the Queen is the Head and Fountain of Iustice, and therefore it is lawful for all her Subjects to resort unto her ad faciendam Querimoniam: But if a subject after the Bill once exhibited will divulge the mat­ter therein comprehended to the disgrace and discredit of the per­son intended, the same is good cause of Action. And that was the Case of Sir John Conway, who upon such matter recovered: And as to the words themselves, It was the Opinion of the Court, That they are not actionable: For it is not expresly shewed, That the Plaintiff hath used perjury, forgery, &c. And it may be, that the Attorny, or Sollicitor in the Cause, hath used such indirect means not known to the Plaintiff: And in such case it is true, That the Plaintiff hath recovered by forgery, &c. and yet without reproach: And by perjury he cannot recover, for he cannot be sworn in his own Cause. It was adjudged against the Plaintiff.

CLXXXVIII. Moore and the Bishop of Norwich's Case. Mich. 28 Eliz. In the Common Pleas.

IN a Quare Impedit by Moor against the Bishop of Norwich, &c. It was found for the Plaintiff; and thereupon issued forth a Writ to the Bishop, which was not retorned; Vpon which an Alias issued forth: Vpon which the Bishop retorned, That after Iudgment given in the Quare Impedit, the same Incumbent against whom the Action was brought, was Presented, Instituted, and In­ducted into the same Church, and so the Church is full, &c. And if that was a good retorn, It was oftentimes debated. Windham cited the Case, L. 5 E. 4. 115, 116. A Quare Impedit against Parson, Patron, and Ordinary, and, pendant the Writ, the Par­son resigned, and the Ordinary gave notice of it to the Patron; and afterwards by Lapse, the Ordinary presented the same Incum­bent, who resigned: And afterwards, the Plaintiff in the Quare Impedit had Iudgment to recovers, And it was holden, Because the same Incumbent is now in by a new title; scil. by Lapse, and the same person against whom the recovery was had; and that ap­peared to the Court, he should be removed. See 9 Eliz. Dyer, 260. [Page 139] and 21 Eliz. Dyer, 364. And it was said by the Lord Anderson, What person soever is presented and admitted after the Action brought, unless it be that the title of the Patron be paramount the title of the Plaintiff upon such Recovery he shall be removed: And so in the principal case, It was adjudged, That the Retorn of the Bishop was not good. Wherefore, he was fined 10 l. and a Sicut alias awarded upon pain of 100 l.

CLXXXIX. Parret and Doctor Matthews Case. Mich. 28 Eliz. In the Kings Bench.

A Praemunire was brought and prosecuted by the Queens At­torny General and Parret, 1 Len. 292. against Doctor Matthews Dean of Christ-Church in Oxford, and others, for that they procured the said Parret to be sued in the City of Oxford before the Commis­sary there, in an Action of Trespass, by Libel according to the Ec­clesiastical Law; In which Suit, Parret pleaded his Freehold, and so to the Iurisdiction of the Court; and yet they proceeded there, and Parret was Condemned and Imprisoned: And after­ward, the said Suit depending, the Queens Attorny withdrew his Suit for the Queen.

It was now moved to the Court, If, notwithstanding that, the party Informer might proceed in his suit there? See 7 E. 4. 2. the King shall have Praemunire; and the party grieved, his Action, See Br. Praemunire, 13. for by Brook, None can have Praemunire but the King.

Cook, There is a President in the Book of Entries, 427. In a Praemunire, the words are, Ad respondendum tam Domino Regi quam R F. and that upon the Statute of 16 R. 2. And see ibid. 429. tam Domino Regi de Contemptu praedict. quam dicto A.B. de Damnis: But it was holden by the whole Court, That if the Queens Attorny will not ulterius prosequi, the party grieved cannot maintain that Suit; For the principal matter in the Praemu­nire is the Conviction; and the putting of the party out of the Kings protection; and the damages are but accessary; and then the Principal being Released, the damages are gone. And it was also holden, That the Presidents in the Book of Entries, are not to be regarded; For there is not any Iudgment upon any of the pleadings there.

CXC. Archeboll and Borrell's Case. Mich. 28 Eliz. In the Kings Bench.

ARcheboll brought an Action upon the Case against Borrell, and declared, That the Defendant had procured one L. to bring an Appeal of the death of J.S. against the now Plaintiff. To [Page 140] which Endictment the now Plaintiff peaded, Not guilty; and upon that he was acquitted. The Defendant pleaded, That the now Plaintiff was endicted of the said death in the County of S. scil. of the stroak, and of the death of the dead in the same Coun­ty. To which the Plaintiff by Replication said, That the said J.S. was struck in the said County of S. but died in the County of D. so as this Indictment found in the County of S. is void by the Common Law: and by the Statute of 2 E. 6. the party ought to be Indicted in the County where the party died, and not where the stroke was given. And upon that Replication, the Defendant demurred in Law.

Broughton, The Plaintiff ought to be barred; 1. The Plain­tiff was not lawfully accquitted, for the proceedings are not by due process; For upon the Writ of Appeal, no Pledges are retorned. Which see, 11 H. 4. 160. Then, if the Appeal was not duly sued, the Plaintiff was not duly acquitted; and then Conspiracy, or Action upon the Case doth not lie: For such suit doth not lie, but where, if the Plaintiff had been found guilty, he should have Iudgment of life and member: Which shall not be, upon an in­sufficient Appeal, 9 H. 5. 2. 2. Because it is not shewed in the Declaration, If the Defendant did flie, or not. 3. The Decla­ration wants these words, Falso & Malitiose, as they are in the Writ of Conspiracy. And also it is not shewed, If the Plaintiff in the Appeal be sufficient or not; For if he be sufficient, the Abettors shall not be enquired. See Westm. 2. And as to the Action it self, he conceived, That it doth not lie by Bill, but by Originial Writ against those who are found Abettors. See 2 E. 2. Fitz. Action up­on the Statute, 28. such suit by Writ. But see 25 Eliz. It was holden, Such suit doth not lie by Writ. And see Book of Entries, 43, 44.

Flemming, to the contrary, It needs not to be shewed, That the Plaintiff found Pledges ad prosequendum, For without that, the Writ is good enough; and although that the Writ be not well executed, yet it is good. For our Action is not grounded upon the Record of Appeal, but at the Common Law, and the Record is but Conveyance to our Action: And also there needs not in the Declaration, falso & malitiose, for they are implyed in the words, Abettavit, & procuravit. And he conceived, That this Action is at the Common Law, and not only upon the Statute of Westm. 2. Which see, Stamford, 172. And see 3 E. 3. Fitz. Conspiracy, 13. Conspiracy lieth upon an Endictment of Trespass, as well as upon an Endictment of Felony; for the Law hath provided remedy in every Case where a Man is damnified. As 43 E. 3. 20. A Writ of Disceit was brought, for that the Defendant by Fraud and Col­lusion had procured J.S. to brign a Formedon against the Plaintiff of such a Mannor, by reason whereof the Plaintiff was put to great charges, and holden maintainable: And the Statute of West. 2. is in the affirmative, and therefore it doth not abridge [Page 141] the Common Law, but the subject may take the advantage of the Common Law if he pleaseth; For it may be that the Course ac­cording to the Common-Law will more avail him, than that upon the Statute: For upon the Statute Law, If the Abettors have not any thing, the party is without remedy; but by the Common Law, the party grieved, shall have excution upon the body. 13 E. 2. Conspiracy holden maintainable against one who procured one to sue an Appeal against the Plaintiff. See Fitz. Conspiracy, 25. Fitzh. Na. Br. 98. If A. procures B. to sue an Action against me, to vex and molest me, an Action of Disceit lieth. And as to the matter of the Endictment, I conceive, that it is not any bar; For the Endictment is meerly void, because it was found in the County where the stroke was, and not in the County where the party struc­ken died, where of right it ought to be, and that by the Statute of 2 E. 6. Then if the Endictment be insufficient, it is as no En­dictment, and then the Plea cannot excuse the Defendant. Which see, 20 E. 4. 6. If the Endictment be not sufficient, the Appellee shall wage Battail, and the Abettors shall be acquitted. Vide inde, 19 E. 3. Coron. 444. 26 H. 8. 2. And by the Common Law, the Plaintiff might at his pleasure bring an Appeal where the Plaintiff was strucken, or where he died: but in such case, the tryal shall be by both Counties. And 3 H. 7. 12. Appeal was brought in the County where the party was stricken; And 44 H. 7. 18. the Appeal was brought in the County where the party died; and there it is said, That in an Appeal the Plaintiff may declare, as if the thing were done in both Counties, but the Endictment ought to be in one County only. And 43 E. 3. 18. A Man strucken in one County, and dieth in another County, the Appeal shall be brought in the County where he died. In an Action upon the Case brought in the County of Essex, the Plaintiff Declared, That the Defendant held certain Lands, by reason of which he ought to re­pair a Wall in the County of Essex juxta le Thames, and that the Plaintiff had Land in the County of Middlesex adjoyning to the said Wall; and for want of repairing the said Wall, his Land in the County of Middlesex was drowned; and the Writ was allow­ed, being brought in the County of Essex. See 6 H 7. 10.

Clench, I conceive this Action doth not lie by the Common Law; For no Writ of Conspiracy was at the Common Law be­fore the Statute. And vide F. N. B. 114. F. If the Plaintiff in an Appeal be Nonsuit, Conspiracy lieth; but contrary, if he be acquitted, for he shall have his remedy against the Abettors, &c.

Plowden, This Action lieth at the Common Law, and an En­dictment is no Plea in this Action; and it is not grounded upon the Statute as a Conspiracy is, and so it well lieth, although the Abettors be not Enquired.

Gawdy, Serjeant, This is an Action by the Common Law; For in all cases where one procures damages to another, so as the [Page 142] party is put to charges, an Action lieth, a fortiori where the pro­curement extends to the danger of life. And see F. N. B. 116. F. Men conspire to have a false Office found of my Lands, which Office is found by such procurement, Conspiracy lieth: And the Statute of 2 E. 6. doth not alter the Law before; for it is in the affirmative. See the Statute, Cap. 24.

Gawdy, Iustice, Conceived, That the Endictment did not ex­cuse the Defendants in this Action, but against those who are sworn to give Evidence for the King, and not others; For they may well procure an Appeal malitiously, notwithstanding the Endict­ment.

Walmesley, Serjeant, conceived, That the Action doth not lie at the Common Law; For in no case where the party useth but the means of the Law by the Kings Writ, without any Corruption or Covin of the party, he shall be amerced only pro falso clamore, and no Action lieth against him, because he hath not used but the means of the Law. Which see, 2 R. 3. 9. by all the Iustices. But yet in an Appeal, because it toucheth the life of a Man, the Defendant shall have his damages against the Plaintiff, but not in any other Action which is a vexation by suit, if no Corporation or Covin be in the party who prosecutes such suit. See such matter justifiable in Conspiracy, 35 H. 6. 13, 14. Afterwards, the principal Case was adjourned.

CXCI. Parker and Howard's Case. Pasch. 28 Eliz. In the Kings Bench.

2 Len. 102.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 exercise the said Office, and take the pro­fits of it wholly to his own use during his life, without let or in­terruption done by him, That then, &c. The Defendant pleaded, That the Custom 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. And fur­ther shewed,1 Len. 103. That the Lord Clynton, Lord Admiral, granted the said Office to 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 put him out, and interrupted him; before which time the Defendant suffered the Plaintiff to enjoy the said Office, and to take the profits of it: Vpon which the Plaintiff demurred in Law.

Cook argued for the Plaintiff, That the Defendant's Plea was not good, for he hath not entituled the Lord Admiral to grant the Office; For he saith, That the Custom of the Realm of England is; which he hath pleaded in such manner, as no Issue [Page 143] can be taken upon it; for it is pleaded, Quod usitatum est quod Admirals pro tempore existens, Non potest Concedere Officium praedict, nisi pro termino vitae suae; and that cannot be, for it can­not be tryed; for the Venire facias cannot be, Of the Realm of England: Also, if it be, Through the whole Realm of England, then the same is the Common Law, and not Consuetudo. Which see, Br. Custom, 39. And see 4 & 5 Mar. Dyer, 152, 153. An ex­press case of this Office; And there he prescribes in Consuetu­dine in Anglia, &c. And also, that such Grant is good but during the life of the Admiral who granted it. Also he doth not answer to any time of the Grant of the Admiral Howard; For if he were lawfully put out by Wade, yet the Defendant against his own Obligation cannot put us out, or interrupt us. As L. 5 E. 4. 115. In a Quare Impedit against an Abbot and the Incumbent, who make default upon the distress; upon which a Writ to the Bishop was awarded for the Plaintiff: Vpon which the Bishop retorned, That the Incumbent resigned; of which the Bishop gave notice: And afterwards Lapse encurred, and the Bishop collated the said for­mer Incumbent, and then that Writ came to him. Now although the Incumbent be in by a new title, yet he is bound by the Iudg­ment. So here, although the Defendant had another title, and the former title of the Plaintiff be determined; yet against his own Deed and Obligation, he shall not put out the Plaintiff. And the Court was clear, That the Iudgment should be given for the Plaintiff. But afterwards, the Cause was Compounded by the Order of the Lord Chancellor.

CXCII. Mannings Case. Mich. 28 Eliz. In the Kings Bench.

NOte: It was agreed by the Iustices in this Case, That where an Enfant Executor sold the Goods of his Testator at less undervalue than they were worth; And afterwards brought an Action of Detinue against the Vendee upon it in retardatione executionis Testamenti; That this sale of the Enfant Executor was good; and should bind him notwithstanding his Non­age.

CXCIII. Mich. 28 Eliz. In the Common Pleas.

THe Case was; A Man made a Feoffment in Fee to the use of himself for life, and afterwards to the use of his eldest Son in tail, and afterwards to the use of his right Heirs, not having at the time of the Feoffment any Son: Afterwards, he suffered a Com­mon Recovery, had Issue a Son, who died in the life of his Father, having Issue a Son, and afterwards he himself dieth: It was holden [Page 144] in this Case, That the Son and Heir of the Son, should not avoid this Recovery by the Statute of 32 H. 8. For there was not any remainder in him at the time of the Recovery had, but the re­mainder then was in abeyance; for then the Son was not born: And the words of the said Statute are, That such Recovery shall be void against such person to whom the Reversion or Remainder shall then appertain; i. e. at the time of the Recovery. And it was said, That if Lands be given to E. for life, the Remainder to B. in tail, the Remainder to C. in fee; B. dieth, his Wife with Child with a Son; A Recovery is had against E. with the assent of C. and afterwards the Son is born, he shall not be helped by this Statute, for that the Remainder was not in esse at the time of the Recovery. But it was holden in the principal Case, That the Heir might avoid this Recovery by the Common Law: For the Recompence could not extend to such a Remainder which was not in esse.

CXCIV. The Countess of Sussex and Wroth's Case. Hill. 28 Eliz. In the Common Pleas.

IT was moved in this Case by Gawdy, Serjeant, If the Dissei­see Licence J.S. to put his Cattle into the Land whereof he was disseised; If it were a good Licence? And, If by the Execu­tion of the said Licence, the Freehold should be revested in the Disseisee, so as if the Disseisor distrain the Cattel of J.S. for Da­mage-feasant, and in a Replevin avow, the Plaintiff may plead, That the Freehold was in the Disseisee who so Licensed him? Pe­riam, Iustice, The Licence is void; For at the time of the grant of it, the Disseisee had but a Right before he had recontinued the Land by re-entry. Windham, If the Disseisee make a Lease for years of the Land, whereof he is Disseised, it is a void Lease. Anderson, If the Disseisee command one to enter into the Land, and he doth accordingly, the same is good. The Case was ad­journed.

CXCV. Payn's Case. Mich. 28 Eliz. In the Exchequer.

2 Len. 205. A Writ of Error was brought by Payn, Treasurer of the Records in the Kings-Bench, in the Exchequer-Chamber, upon a Iudgment given in the Court of the Exchequer for the Queen, upon an Assignment of a Lease for years by the Countess of Oxford to the Queen; One Error was assigned, because whereas the Issue was joyned upon the Intrusion, and the taking of the profits, and so two matters put in Issue; and the Iury have found Payn guilty of the Intrusion; but have said nothing of the taking of the profits, and so the Verdict doth not meet fully with [Page 145] the Issue. The great matter of the Case was upon this Point; The Information is, That the Assignment of the Queen was, 16 Maii, the Intrusion 17 Maii, the Inrollment of the Deed of Assignment 18 Maii; And so it appeared upon the Record, that the Intrusion is supposed to be done before that the Queen had any Interest in the Land in which the Intrusion is supposed, for nothing was in the Queen before the Enrollment: For the Queen is a Corporation of State, of such Prerogative and Excellency, That she cannot give or take an Interest in Land without matter of Record; And this Lease is a Chattel-real, and an Interest in Land. See as to the Inrollment, 1 H. 7. 30. 31. 5 E. 4. 7. 7 E. 4. 16. But I agree, That if Lessee for years be Outlawed, the Lease shall be in the King without Office, for the Outlawry it self is a sufficient Record to entitle the King unto it. If the Queen makes a Lease for years of Lands rendring Rent, with a Clause, That if the Rent be behind, that the Lease shall cease, if the Rent be not paid. It was agreed here in Sir Moile Finch's Case, That the Lessee continuing his possession, shall not be accounted an Intruder before Office thereof found, but he shall be Accomptant to the Queen for the profits as Bailiff of his own wrong: but here we are charged with Intrusion.

It hath been doubted, If personal things are in the King without Office, 37 H. 6. But now it is clear they are. As 35 E. 3. Br. Pre­rogat. 113. The Villein of the King purchaseth goods, the proper­ty thereof is in the King without seisure; and so it is of all per­sonal Chattels, because they are transitory, 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon the Record, that this Deed of Assignment was delivered to Baron Clark, 16 May, at Westm. and that was Ascension-day, and so non dies Juridicus, and so no Court there then holden, and then the said Deed was not delivered in Court of Record, and then not delivered to him as a Iudge, but as a private person, although that it was delivered to the use of the Queen. But in 37 H. 6. there is some Opinion, That if such a Deed be delivered in Court to one of the Barons, or be put into the Kings Coffers, that then it is a Record.

Atkins, to the contrary: And to the first Exception, It is to be known, That in every Plea where a Contempt is laid to the charge of the Defendant, he ought first to excuse his Contempt: And therefore here the Exordium of the Plea is, Quoad venire vi & armis, & quicquid est in Contemptu Dominae Reginae, necnon de tota ulteriore transgressione & Contemptu per ipsos supposit. Quod ipse in nullo est inde Culpabilis: And afterwards plead over: And so it is in an Action of Trespass. And also upon the Statute of 8 H. 6. of Forcible Entry; and here the Issue upon the Con­tempt doth ensue the other Issue; For if the other Issue is found against the Defendant, so also is this. As to the other point I agree, That a Corporation cannot take or speak without writing: [Page 146] And the King being a Corporation, and who only makes Corpora­tions, cannot take but by writing of as high a nature; scil. by Record: And we have here a Record (as is granted by the other side) being enrolled 18 May, which was delivered 16 May; and being once enrolled, it hath relation to the time of the delivery; i. e. to 16 May; And then Payn upon the whole matter was an Intrudor 17 May: and an Intrudor by his Entry doth not gain any thing against the Queen; and therefore the Information of the Intrusion is, diversis diebus & vicibus intrusit; althought it be but one continued possession; and therefore every Instant during his possession, he is an Intrudor. As to the delivery of the Deed of Assignment upon the day of the Ascension, which is not dies Ju­ridicus, that is not material. As 12 E. 4. 8. by Pigot, If the day of Retorn of a Writ, i. e. 4^to die, falls upon a Sunday, it is good enough, although no Court can then be holden but the day follow­ing, and the Plea is not discontinued; And this delivery of the Deed of Assignment might be made out of Term there upon any day in the Term which is not dies Juridicus. Contrary, where the thing is of necessity to be done in the Term; as in the Case be­tween Fish and Brocket, of Proclamations made upon a Fine; For a Man may acknowledge a Recognizance or a Deed to be enrol­led in the time of Vacation, &c.

Tanfield, As to the Interest, the Enrollment hath relation, not as to the profits; for Payn cannot be Intrudor 17 May, by any Relation.

Popham, The Queens Attorny, When an Information of In­trusion and taking of the profits is here exhibited, the Defendant ought to justifie his Entry; and if the Entry be found against him, so as his Entry is an Intrusion, then the illegal taking of the profits is found also. And he said, That the Deed acknowledged and de­livered to the Baron, is a Record, although not enrolled, be the acknowledgment thereof in Court, or out of Court. If an Infor­mation upon a penal Law be exhibited to a Baron of the Exche­quer out of Court, and afterwards another Informer exhibits ano­ther Information upon the same Statute for the same Offence against the same person, and that is exhibited in the Court be­fore the first; The first Information shall be preferred, and the Defendant shall answer to that, and not to the other: and for ex­hibiting the same in Court, or out of Court, it is not material. And the Assignment when it is enrolled, hath relation unto the ac­knowledging of it. A Reversion is granted to one for life, the Remainder to the King; the particular Tenant attorns to the King, the Remainder is not in the King by the Attornment; but if the Deed be afterwards enrolled, it shall be said to be in the King from the time of the Attornment: And the King shall have the benefit of all the mean profits from the time of the Attorn­ment. A Lease for years is made by the King, reserving Rent, with a clause, That if the Rent be not paid, that the Lease shall [Page 147] be void: the Rent is not paid 10 years, after an Office is found, the King shall be answered all the profits from the time of default in payment of the Rent. And although no Intrusion can be laid in the Information 17 May, yet it shall be good for the 18th day.

Cook, The Iudgment for the Queen upon an Information of Intrusion, is, Quod defendens, de Intrusione, transgressione, & Contemptu praedict. convincatur, &c. And afterwards, a Com­mission shall issue forth, for to enquire of the Mean profits, and there the Defendant may shew this matter in taking of the dama­ges: And if the Intrusion be at any time in the Information, it is sufficient enough to have Iudgment upon it: and in our Case, the Continuance is laid 18 May.

Egerton, Sollicitor, The Record warrants the Iudgment given upon it; For possession laid in the Queen, is sufficient to this In­formation. And here Payn doth not answer the Queens title, but traverseth the Intrusion, And therefore he being found Intrudor by Verdict, Iudgment ought to be given upon it. For the Iury have found the Intrusion generally, and specially, 17 May. And that cannot be assigned for Error; for it is part of the Verdict, of which Error doth not lie, but Attaint: For if any Error was, it was in the Iury, and not in the Court. Which Manwood Concessit.

Tanfield, As to the Case of Continuance of an Intrusion, it is clear, That every continuance ought to have a beginning; for a thing, which hath no beginning, cannot be continued; and here is not any beginning: for the beginning which is laid in the Informa­tion, is pretended to be 17 May; and that cannot be, causa qua supra.

Popham, If an Information be brought of an Intrusion, where in truth there is not any Record to prove it, and the Iury find the Intrusion, shall you have a Writ of Error upon it? And every con­tinuance of Intrusion, is an Intrusion. This Matter had been good Evidence to the Iury. Sed non habet locum hic, &c.

CXCVI. Sir John Southwell's Case. Hill. 28 Eliz. In the Exchequer.

SIr John Southwel of the County of Lanc. 7 July, 2 Len. 132. 19 Eliz. made a Conveyance of all his Land to divers Feoffees and their Heirs, upon Condition, That they should find him and his Wife, and so many persons in his House, &c. prefer his Daughters in Marriage, pay his Debts, &c. And if there fell out at the years end upon Accompt made by the Feoffees any surplusage, that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and Profits of his said Lands, with Clause of Revocation, &c. After­wards, [Page 148] the said Conveyance being in force, came the Statute of 23 Eliz. concerning Recusants: Vpon which Statute, the said Southwel was now Indicted: And afterwards, a Commission issued out of the Exchequer to the Sheriff of Lancast. to enquire of the Lands of the saith Southwel; And although against the said Conveyance it was given in Evidence, That after that Convey­ance, the said Sir John Southwel had granted Trees out of the said Lands, and had taken Fines and Incomes for Leases, &c. Yet the Iurors, charged to enquire, would not find, That the said Sir John had any Lands, &c. And by special Commandment of the Queen, it was referred out of the Exchequer, to all the Iustices of England, If the Lands of the said Sir John Southwel contained ut supra, were subject to the said Statute, and the penalties thereof? And upon great deliberation had, It was by them all Re­solved and Agreed, That notwithstanding that Conveyance, the said Lands were lyable to the said Statute. And as to the Iurors which against their Evidence given unto them for the Qeeen, gav their Verdict, ut supra; process was awarded against them out of the said Court, for to appear before the Lord Treasurer, and the Barons of the Exchequer: And for their said Contempt, they were committed to the Fleet, and each of them fined 20l.

CXCVII. Hill. 28 Eliz. In the Common Pleas.

IN a Writ of Entry Sur Disseisin, The Tenant said, That the House in demand is within the City of London; and that the said City is antiqua Civitas; And that King Hen. 3. Concessit civibus Civitatis praedict. quod non implacitentur de Terris & Tenementis suis, &c. extra muros Civitatis praedict. And further said, That he himself is Civis London, &c. and demanded Iudgment of the Writ: (Note, in the pleading before, the Tenant said) & illis rectum teneatur intra Civitatem praedictam secundum Consuetudi­nem Civitatis praedict. And to this Plea, Exception was taken, because that the Tenant doth not shew before whom by their Cu­stom they ought to be impleaded. It was the Opinion of the whole Court, That the Tenant ought to have shewed, That the Citizens for their Lands ought to be impleaded in the Hustings, &c. And the general words in the plea; scil. Sed illis rectum teneatur intra Civitatem praedictam secundum Consuetudinem Civitatis praedict. did not supply the defect aforesaid. After, It was awarded by the Court, That the Tenant answer fur­ther, &c.

CXCVIII. The Lord Anderson's Case. Mich. 29 Eliz. In the Common Pleas.

THe Lord Anderson, Chief Iustice of the Common Pleas, 1 Roll. 189. brought an Action of Trespass by Bill, for breaking of his House in the City of Wor. against one A. Citizen of the said City: Now came the Mayor and Communalty of the said City, and shewed their Charter granted to them by King E. 6. and demanded Conusans of Pleas. And by the Award of the whole Court, the Conusans shall not be granted, because that the Priviledge of this Court whereof the Plaintiff is a principal Member, is more antient than the Patent, upon which the Conusans is demanded. For the Iustices, Clarks and Attornies of this Court, ought to be here at­tending to do their Offices and Services, as belongs unto them, and shall not be impleaded, or compelled to implead others else­where than in this Court. And this Priviledge was given to this Court upon the Original Erection of it. And such was the Opi­nion of the whole Court. And as for the Conusans, it was de­nyed.

CXCIX. Cocket and Robston's Case. Mich. 29 Eliz. In the Common Pleas.

ARthur Cocket, Thomas Andrews, and A. his Wife,2 Len. 118. Post. 192. 230. 1 Len. 219. 1 Len. 302. brought an Action of Accompt against Robston, and Declared, That one Mountford by the hands of Jo. Wase, had delivered 100l. to the Defendant pro relevamine of the said Arthur and Anne. The Defendant pleaded, Ne un (que) Receiver pur accompt render: Vpon which they were at Issue. And Iudgment was given, That the Defendant should accompt: Who, before Auditors assigned, alledged, That he had expended the said 100l. in the Education of the said Arthur and Anne, by the space of 8 years after the de­livery of the said 100l. Vpon which they were at Issue. And upon Evidence it was shewed on the Plaintiffs part, That heretofore the said Arthur brought a Writ of Accompt against the said Rob­ston, as Guardian in Socage for the Land of the said Arthur dis­cended; And upon the said Accompt, the said Robston demanded allowance of 20 Marks by the year for the said 8 years, for the Education of the said Arthur, which was allowed to him; so as now he shall not be received to demand allowance for the said 8 years for the Education of the said Arthur out of the Accompt of the said 100l. and that was fully proved to the Iury. It was moved, How the Iury should demean themselves in their Verdict? For the Issue is, That the Defendant had expended the whole 100l. in the Education of the said Arthur and Anne. And some [Page 150] were of Opinion, If the Defendant had expended part in the Edu­cation of the said Anne only, yet the Iury ought to find for the Plaintiffs: For the Issue is entire upon the expending of the said 100l. in the Education of the said Arthur and Anne, without say­ing how much for the said Arthur, and how much for the said Anne. But Periam and Anderson, Iustices, were clear to the contrary: Wherefore they advised the Iury to find specially, if they concei­ved, that the Defendant had expended any part of the 100l. and to find it, and how much. And after the Iury found against the De­fendant, That nothing was expended, &c. And gave damages 20l. And the Iustices at the first doubted, If damages should be given in an Accompt? But at length they received the Verdict, by the man­ner, de bene esse. See 2 R. 2. Fitz. Accompt. 45. 2 H. 7. 13. 10 H. 6. 18. 21 H. 6. 26. And the Book of Entries, 17. in such case damages were given.

CC. Tooley and Preston's Case. Hill. 29 Eliz. In the Common Pleas.

1 Len. 397. 1 Cro. 206. 2 Len. 105.IN an Action upon the Case by Tooley against Preston, (which see, Mich. 29 Eliz. Reported in Leon. 1. Part, fol. 297.) Iudg­ment was given for the Plaintiff; And now upon the Retorn of the Writ of Enquiry of Damages, It was moved, That for as much as the Damages are excessive, viz. 200l. that the Court de Gratia would abridge the Damages: But the whole Court was against it; For that they as Iudges cannot know what prejudice and damage the Plaintiff hath sustained, by the wrongful detain­ing of the said Recognizance, but the Iury may well have notice of such matter: And as the Case is here, the damages are but incertain upon the Assumpsit: For the Defendant assumed, That if he did not redeliver the said Recognizance to the Plaintiff to pay him 1000 l. so as the damages are reduced to certainty by the promise of the Defendant himself. And by Anderson, If I bail to you an Obligation, to rebail the same to me before such a day one 10l. now upon not delivery at such a day, I shall have an Action of Debt for the 10l. contrary, by Windham. And by Anderson, in the principal Case, If the Defendant had pleaded Non Assumpsit, and the Iury had found the promise, they might have given 1000l. damages, without danger of an Attaint, notwithstanding that the Plaintiff could not prove that he was damnified one penny, and that by reason of the express Assumpsit of the Defendant.

CCI. Bingham and Squire's Case. Hill. 29 Eliz. In the Common Pleas.

BIngham brought Debt upon an Obligation against Squire; 4 Len. 61: The Condition was, That if the said Squire procure a Grant of the next Avoidance of the Arch-Deaconry of Stafford, to be made to the said Bingham, so that the said Bingham at such next Avoidance may present, That then, &c. And the Case was, That afterwards by the means and endeavour of Squire, the Grant of the said next Avoidance was made to Bingham. But before the next Avoidance, the present Arch-Deacon was created a Bishop, so as the presentment to that Avoidance appertained to the Queen: It was adjudged in this Case, That the Condition was not per­formed, and that by reason of these words, (So that Bingham may Present;) And afterwards the Plaintiff had Iudgment to re­cover.

CCII. Rolt's Case. Hill. 29 Eliz. In the Common Pleas.

THe Case was; A Lease is made to two, durante vita ipso­rum & alterius eorum diutius vivent. abs (que) impetitione Vasti, durante vita ipsorum; The one of them dieth: Now although some conceived there was a difference between the Limitation of the Estate, and of the Liberty, &c. for the Limitation of the estate seems to be more liberal; Yet it was agreed by the whole Court, That the Liberty runneth with the Estate, and shall endure as long.

CCIII. Farmer and Dorington's Case. Hill. 29 Eliz. In the Common Pleas.

AN Action upon the Case for these words, I will prove Far­mer to be a perjured Knave. It was moved, The words are not Actionable; for it is not a meer affirmation. But after many motions; It was holden by the whole Court, That upon those words, an Action did well lie.

CCIV. Allen and Hill's Case. Mich. 29 & 30 Eliz. In the Kings Bench.

1 Cro. 238.IN an Ejection Firme by Allen against Hill of a House in Corn­hill in London; Vpon Not guilty pleaded, The Iury found this special matter; viz. That one Francis Beneson was seised of the said House in Fee; and 4 Eliz. devised the same to Anne his Wife for life, in full satisfaction of all her Thirds in London; and after her death, to Tho. Beneson his Brother in Fee: Proviso, That if Anne clearly (the words of the Verdict are totaliter) depart out of London, and dwell in the Country, that then she shall have a Rent out of the said House. And the Iury found further, That Francis died without Issue; and that afterwards Thomas died, Robert being his next Heir; And that 14 Eliz. Anne clearly depart­ed out of London, and went to Melton in the County of Suffolk: And that afterwards Robert before any Entry, released unto Anne; and afterwards against his Release entred. It was argued for the Defendant, That by this Proviso, and the departure of Anne out of London, the Freehold was not out of her, and vested in Ro­bert, before the entry of Robert; For if it were out of Anne, then is she but Tenant at sufferance, to whom a Release made cannot enure; And the words of the Will are not, That her Estate shall cease. And here as the case is, Anne cannot be Tenant at suffe­rance to him in the Remainder, betwixt whom and her there is not any privity. See 18 E. 4. 25, 26. Tenant for the term of the life of another, the Remainder over in Fee, Cestuy que vie dieth; The Tenant remained Tenant until he in the Remainder entred upon him. And so in our Case, although Anne hath clearly de­parted out of London, &c. yet the Freehold of the House doth con­tinue in her, until the Entry of Robert, and then the Release made to her is good. Also the Breach of the Condition is not fully found; For the Proviso is, If she clearly departs out of London, (but it doth not stay there) and dwell in the Country, &c. And here it is found, That she clearly departed out of London; but they have not found, that she dwelt in the Country, &c. but only that she went to Melton; but she ought to do doth before her Estate shall cease. It was argued by Towse for the Plaintiff, That the Defendant ought to be found guilty of the Ejectment; For it is found, That the Defendant entred before the Commandment of Anne; but they have not found, that Anne was alive.

Fenner, Iustice, the same is well enough: and so it was hol­den, 18 Eliz. in this Court; for although her life be not found, yet it shall be intended, that she was alive: For the Iury did not doubt of it; and the Conclusion of the Verdict is, That if it shall seem to the Court that his Entry is lawful. Then the Defendant is not guilty. So as the doubt of the Iury is only upon that point. Which Wray concessit.

[Page 153] Gawdy, Iustice, If one Deviseth Land to one for life, upon Condition, That his Estate shall cease (which is all one with the Case at Bar,) and after the breach of the Condition he continu­eth in possessions, he is not Tenant for life, but Tenant at suffe­rance.

Wray, Chief Iustice; Tenant for the life of another continues in possession after the death of Cestuy que vie, he hath not any Freehold remaining in him; for if he dieth, nothing descends. And so it was lately adjudged by all the Iustices of England, upon a Conference had between them: And the Book of 18 E. 4. is not Law. Which Gawdy, Iustice, concessit. See 35 H. 8. 57. acc. And he said, That the same shall be as a Limitation by which the Estate shall cease without an Entry. And here in this Case, be­cause they have not found, That Anne had dwelt in the Country, here is no breach of the Condition in the Case. And afterwards, by the Advice of the whole Court, Iudgment was given for the Defendant, Quod querens nihil Capiat per Billam.

CCV. Cadee and Oliver's Case. Mich. 29 & 30 Eliz. In the Kings Bench.

IN an Ejectione Firmae by Cadee against Oliver, 1 Cro. 152. Roll. Tit. Grant. 48. of a House in Holborn, &c. The Case was, The Lord Mountjoy, and the La­dy Katherine his Wife, seised of the said House, and of other Lands in Fee in the right of the Wife; 6 Eliz. acknowledged a Statute-Staple of 1200 l. to Sir Lyonel Ducket: Afterwards, 9 Eliz. the said Lord Mountjoy and his said Wife Leased the said House to Hoskins for 21 years; And afterwards by Indenture, 11 Eliz. they Leased the same to Sir Tho. Cotton for 99 years, to begin at Michaelmas last past: 12 Eliz. Sir Lyonel Ducket extended his Statute; and the Land extended was delivered to him at 53 l. 7 s. per annum; who held the same until 22 Eliz. Anno 23 Eliz. the Lord Mountjoy and his Wife levied a Fine to Perry, to the use of Perry and his Heirs: 27 Eliz. Sir Thomas Cotton not being upon the Land, granted omnia tunc bona & catalla sua, to Robert Cotton his Son: 28 Eliz. the Lady Mountjoy died. Mich. 29 Eliz. the Lease to Hoskins expired: Perry entred, and Leased the House to Oliver the Defendant for 21 years; And afterwards, Robert Cotton entred, and Leased the House, &c. to the Plaintiff. It was first moved by Brantingham, and argued by him, If this Lease for 99 years which was made to begin after the Lease made to Hoskins, should pass to Robert Cotton by the words aforesaid? But the Court eased him from arguing of that point; for it was holden, That it passed, notwithstanding the word tunc. 1 Cro. 386. Another matter argued by him, was, because at the time of the Grant, the Lands were in extent, and so the said Sir Thomas Cotton had but a possi­bility, If therefore the said Grant, made during the Extent, was [Page 154] good? And he argued, That it was; for it is more than a bare possibility, for it is an Interest vested: And in some Cases, a possi­bility may be granted. As 19 H. 6. 2. The King granted to a Prior, That when any Tenth is granted to the King by the Cler­gy, his House shall be discharged of it, &c. And 19 E. 2. Avowry, 224. The Lord grants to his Tenant, That if he dieth, his Heir within age, that such Heir shall not be in Ward. So 21 E. 4. 44. A Grant unto an Abbot to be discharged of the Collectorship of Tenths when it shall be granted by the Clergy. It hath been Ob­jected, That the Term for 99 years is suspended, therefore it cannot be granted during the suspension. But the same is not so; for, a thing suspended may be granted: As 15 Eliz. Dyer, 319. Husband and Wife Ioynt-Tenants of Lands in Fee, The Queen having a Rent out of it in Fee, giveth the Rent to the Husband and his Heirs; now the Husband Deviseth the said Rent, and dieth; the same is good a Devise, notwithstanding the suspension: And he cited the Cases, 16 E. 3. Quid juris clamat, 22. And 20 E. 3. ibid. 31. A Lease is made to one for life; and if he dieth within 20 years, that his Executors and Assigns shall hold the Land un­til the expiration of the 20 years, the said Interest may be grant­ed. Which Wray, Chief Iustice, denyed. See Gravenors Case, 3 & 4 Ma. Dyer, 150. such Interest is void. It was further mo­ved by him, and argued, If the Conusee of the Fine might avoid the Lease made to Sir Thomas Cotten? And he said, He could not; for he is in under the Lessors. So is 34 E. 1. Recovery in value, 36. see the Case there. And here, although the Wife after the death of her Husband may affirm, or disaffirm the Lease at her Election; yet this Election is not transferred to the Conusee by the Fine; but the Conusee shall be bound by the Fine. See 33 H. 8. Dyer, 51. As Tenant in tail makes a Lease for years not war­ranted by the Statute, and dieth, the Issue alieneth the Land by Fine, before affirmation or disaffirmation of the Lease by accept­ance or Entry, the Conusee cannot avoid this Lease; for the Li­berty is not transferred. Which Gawdy, Iustice, concessit. And Election cannot be transferred over to the prejudice of another person. As if a Rent de novo be granted to the Father in Fee, who dieth before Election, the Heir cannot make it an Annuity to defeat the Dower of the Wife, quod Curia concessit. It was also moved by Brantingham, If the Lessee might enter upon the Conusee of the Statute after his Extent expired, without suing forth a Scire facias: But the Court discharged him from arguing that Point; for that by the Death of the Lady Mountjoy, the Extent was void; and therefore the Feoffee or Conusee might avoid it by En­try: And so Wray, Chief Iustice, said, it had been adjudged in the Court of Common Pleas. At another day, the Case was ar­gued by Stephens on the part of the Plaintiff; who said, That the Extent by computation of time according to the value to which it was extended, is not yet satisfied: The Verdict hath found, that [Page 155] the Extent continued until 22 Eliz. hut doth not say, that it was then expired and ended. And I conceive also, that this Extent doth not evict the Interest of Sir Thomas Cotton, or turn it into a possibility; The extent is Quous (que) leventur denarii; but yet a Li­mitation of time is in Law understood, although by a Casualty such time may be abridged or extended. Which see, 15 H. 7. 16. by Fairfax, Where a Man is bounden by Statute to pay 40 l. and the Conusee sueth Execution upon it, and the Land extended is rated at 10 l. per annum: now it shall be intended, by a common intent, that in 4 years the party may be satisfied; and therefore after the 4 years the Conusor shall have a Scire facias: so upon the matter it is a Lease for 4 years. So 7 H. 7. 12. by Keble to the same purpose. And 15 E. 4. 5. by Brian; for the Law shall not intend a casualty without alledging of it; for the same shall not be by imagination. And therefore, If the Conusor will have the Land within the Term, he ought to alledge, That the Conusee hath levied the duty by an extraordinary Casualty, and shew it specially. And so where the Conusor sueth a Scire facias, and the Conusee will hold the Land over, he ought expresly to surmise some extraordinary occasion wherefore he could not levy the duty upon the Land within the Term: Which see by Brian, 15 E. 4. 5. and 44 E. 3. The Conusee of a Statute after extent maketh a Lease for 3 years; yet it may be that the duty shall be levied within one year; but if it be so, then a Scire facias shall issue forth against the Conusee, and not against the Lessee; for the Law in­tends, that the whole estate of the Conusee is not granted, but that he hath a Reversion in him; but if he hath granted his whole estate, then a Scire facias shall issue forth the Grantee. So here, although that this extent in our Case would continue by com­putation of time for some of the years of the Term granted to Sir Thomas Cotton: yet it is intended, that the extent did run out, and was determined before the expiration of Sir Thomas Cot­ton's Term; so as, notwithstanding that, Sir Thomas Cotton hath an Interest left in him which he may grant. It will be Objected, How can it be said an Estate for years, when as he might hold over the years? As to that, such an Interest may be put off in di­vers Cases; As, 15 H. 7. A Man grants to another the third Avoidance of such a Church, and dieth seised, his Wife is endowed of the Church, she shall have the third Avoidance, and the Grantee shall have the 4th Avoidance, and so per talem intervenientem occa­sionem, the benefit shall be delayed; and so here in our case: And then the estate by Extent being prima facie certain, so as it cannot by intendment surmount the Term of Sir Tho. Cotton, as it ap­peareth upon the Extent; the estate shall be taken to continue according to the extent of the years, and then a certain Interest doth remain in Sir Thomas Cotton, which he may grant over, which is not a possibility, but rather a Reversion: So, and to such pur­pose, is the Case of 7 H. 5. 3 & 4. If the eldest Son entreth after the death of his Father, and afterwards his Mother recovereth [Page 156] Dower, that shall take away the possessio fratris; but if the Son maketh a Lease for life, and the Wife recovereth Dower against the Lessee, there shall be possessio fratris, for the Reversion doth remain in the Lessor, notwithstanding the eviction of the estate for life. And 7 H. 6. 2. there it is holden by Goddard and Strange, That where the Term of the Wife was extended upon the Statute of the Husband, who died, the Wife shall have the residue of the Term, and avoid the extent as to her Term, which proves that all the Term is not drawn to the Conusee by the Extent, but that an Interest doth remain in the Lessee notwithstanding that. And see by Seton, 29 Ass. 64. If Lessee for life Leaseth to him in the Reversion for life, yet he hath a Reversion in him, And 31 Ass. 6. A. is bound by Statute to B. and his Land extended by force of it: C. recovers against B. in Debt, and the Land extended by him upon the Statute,1 Roll. 887. is now extented by Elegit; A. grants his Estate to the Conusee, it is no surrender; which proves, that B. hath an Interest. And so in our Case, an Interest doth remain in Sir Thomas Cotton, notwithstanding the Extent. A. makes a Lease for years to begin at a day to come, and before the day, A. is disseised; The Lessee notwithstanding this Disseisin, may grant his Interest, for he never was in possession, and therefore it can­not be turned into a Right.

As to the second point, If Robert Cotton may enter within the time of the Extent, without a Scire facias: and that rests upon this point; If this Lease shall be subject to the Extent? I con­ceive clearly, that it shall not. It hath been said, That our Lease is not good: But I conceive it without question, that our Lease is good enough; For it is made by the Husband and Wife: and the Wife after the death of her Husband by Acceptance of the Rent, might affirm the Lease: But the Statute is the act of the Husband alone; therefore the Conusee of the Fine shall not avoid the Lease, for it is but voidable. So the King grants Lands du­rante beneplacito, and afterwards grants the Reversion over, the Patentee shall not avoid the Estate; But if this Lease had been made by the Husband only, it had been void, and then the Conusee of the Fine should avoid it; as it was lately adjudged in Harvy and Thomas's Case. And I conceive, That if Tenant in tail ac­knowledgeth a Statute, and afterwards makes a Lease according to the Statute of 32 H. 8. and dieth, the Lessee shall not hold the Land subject to the Statute, for then the Rent should not be paid to the Issue in tail during the Statute, which is against the Stat. of 32 H. 8. And see also, 8 Eliz. Dyer, 252. The Chaplain of a Donative Chappel Leased for 99 years, which was confirmed by the Patron, who was Tenant in tail of the Patronage which was appendant to a Mannor, whereof he was seised in tail; and after­wards he had Issue, and died; The Statute of Chauntries com­eth; after the death of the Incumbent, the King shall avoid this Lease. And in our Case, after the Coverture, the Conusee is in [Page 157] by the Wife, and then he shall avoid the Statute extended upon it: And if so, then there needeth not any Scire facias; as the Issue in tail may enter upon the Conusee of a Statute acknowledged by his Father; For if Execution had been sued against the Issue in tail, it had been a Disseisin. And see 2 R. 3. 7. That in such case, the Wife, or her Heirs, may enter upon the Conusee; And by Con­sequence, the Conusee who is in by her, &c.

Cook, contrary; I conceive, that this Grant of this Lease by Sir Thomas Cotton to his Son, is not good;2 Roll. 48; 1 Cro. 15. 1 Inst. 22. b. for it is but a possibi­lity, and no Interest: I agree all the Cases which have been put before, for Law, but they cannot be applyed to this Case; The Book in 7 H. 6. 2. is, That if the Term of the Wife be extended up­on the Statute of the Husband, that the Wife shall have the residue after the death of the Husband; but it doth not say, that the Wife or her Husband may grant it during the Extent; which is the mat­ter now in Question. And I conceive, That Sir Thomas Cotton hath but a possibility; For the Conusee upon the Extent hath but an incertain Interest: And although it may be by some means re­duced to a certainty in the Chancery, where the Costs and Dama­ges shall be assessed; yet until it be reduced to a certainty, it can­not be granted. And therefore it is clear, That if I have a Term for 8 years in Land, and grant it unto another until he hath le­vied 100 l. and all his Costs of suit for it, by this Grant all the In­terest of the Term is in the Grantee, and nothing is in me, but a possibility.8 Co. Man­nings Case. And so it was holden in the Common Pleas by the Lord Anderson, the day when he was made Chief Iustice there, At which time, this Case was put; Lands of the yearly value of 20 l. are Leased to one until he hath levied 100 l. And the matter was, What estate the Grantee hath? And it was holden, That if Li­very be not made, that he hath but an estate at Will, for the pro­fits of the Lands are incertain, the one year more, and the other year less: And Bromley, Lord Chancellor was then of the same Opinion. Then, if in case of a Lease it be so, it shall also be so in case of an Extent; and in both the Cases, the whole Interest is out of the parties. And 19 Eliz. the Case was in this Court, That the Lessee for years devised his Term to his Executors for the payment of his Debts and Legacies; and after the payment of them, the residue of the years he devised to his Son: The Execu­tors enter, which is an assent to the remainder; he in the remain­der grants his Interest: And it was holden void, because it was but a possibility, and so incertain: and although it might be redu­ced to a Certainty afterwards, yet the same is not sufficient; for it ought to be reduced to a certainty at the time of the grant. And 17 Eliz. in this Court the Case was, That Land was given to the Husband and Wife, and to the Heirs of the Husband; the Husband makes a Lease for years, and dieth; the Wife enters, and enter­marrieth with the Lessee: And it was moved, If the Interest of the Lessee by the entermarriage, was extinct? And it was holden, That [Page 158] it was not; for it was but a possibility, and not an Interest, quod fuit concessum per totam Curiam. And if a possibility cannot be ex­tinct, then it cannot be granted. And he denyed the Case put by Stephens, Where a Man seised of Lands Leaseth the same for years to begin at a day to come, and afterwards before the day, the Les­sor is disseised; now during that Dissesin, the Grantee cannot en­ter for his future Interest; For the Feesimple being turned into a Right, so also shall be the Interest. And that is proved by De­lamere's Case, A Feoffment in Fee was made to the use of A. for life, and afterwards to the use of C. for life, and afterwards to the use of D. in Fee; and afterwards A. enfeoffed a stranger, who had notice of the use; The same doth take away all the other uses; and said Feoffee although he had notice of the use, yet he shall not be seised to the first use, for the estate out of which the first uses do arise, is taken away; and then also the uses. And he said also, That the Lease made to Sir Thomas Cotton is not good; for it was made, 11 Eliz. And it is found by Verdict, That 10 Eliz. a Writ of Extent issued forth upon the Statute, then was the Lands in the hands of, &c. during which time, the Lord Mount joy and his Wife could not make the Lease aforesaid to the said Sir Thomas Cotton. And as to that, see 5 E. 3. Retorn of the Sheriff, 99. See the Case of 3 E. 6. Dyer, 67. Stringfellow's Case. Then admitting the Lease to Sir Thomas Cotton, yet the Lessee cannot put out the Conusee without a Scire facias; for the Conusee is in by matter of Record. Also here, this Lease made by the Husband and Wife without any Rent reserved, is utterly void, and then the Conusee shall take advantage of it, 9 H. 7. 24 18 E. 4. 2. And so was it ruled in the Case of Seniori puero, in the case of an Enfant. And see 7 Eliz. Dyer, 239. Where the Provost of Wells being Parson impersonee of the Patronage of W. Leased the Tythe for 50 years, rendring Rent, which was confirmed by the Dean and Chapter, but not by the Patron and Ordinary: And afterwards by Act of Parliament, the Provostry was united to the Deanery cum primo vacare contigerit; The Provost died, the Dean accepteth the Rent; The same shall not bind the Church, for the Lease is void, as it is of a Parson, or Prebend, &c. And so the Dean shall take ad­vantage of it, although not privy to it. See 16 Eliz. Dyer, 337. Lands given to a Parson and his Successors for to find Lights, and he Leaseth the same for life; The Rent is so imployed accordingly: The Incumbent dieth, The Successor accepteth the Rent; the King grants it over, The Patentee shall avoid the Lease, as the Successor might have done before the Statute, if he had not ac­cepted the Rent: but the acceptance before the Statute shall bind the Successor, for that it was but a voidable Lease. And the Case between Harvy and Thomas, which hath been put on the other side, serves to our purpose, for there the Conusee shall avoid a Lease in Law which is void; and here, in the Principal Case, the Lease is void; for that no Rent is reserved upon it. Wherefore, &c. It was adjourned.

CCVI. Beadle's Case. Mich. 29 & 30 Eliz. In the Kings Bench.

THe Case was, That A. Leased to B. certain Lands for 40 l. per annum; 2 Len. 115. And a stranger Covenanted with A. That B. should pay him 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 put the said B. out of his Farm: It was moved by Godfrey, That the same is no plea; For this is a Collateral sum, and not for Rent issuing out of the Land: Also, the Defendant is a stranger to the Contract for the Farm. But the Opinion of the whole Court was clear to the contrary; For the Defendant hath Covenanted, That the Lessee shall pay for the said Farm and Occupation 40 l. so as 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; and therefore the plea is good, and the Action will not lie.

CCVII. The Archbishop of York, and Morton's Case. Pasch. 29 Eliz. In the Common Pleas.

THe Archbishop of York recovered in an Assise of Novel Dissei­sio, against one Morton, before the Iustices of Assise;1 Len. 55. upon which Iudgment, Morton brought a Writ of Error, retornable before the Iustices of the Common Pleas; And after many Motions at the Bar, it was adjudged, That a Writ of Error upon such Iudgment doth not lie in the said Court. Which see 8 Eliz. Dyer, 250. See also, N. B. 22. e. That upon Erroneous Iudgment gi­ven in the King Bench in Ireland, Error shall be in the Kings Bench in England, 15 E. 3. Error, 72. And Fenner, who was of Counsel with the Archbishop, demanded of the Court, How, and in what manner the Record shall be sent back to the Iustices of Assise, so as the said Archbishop might have Execution? To which the Court answered, That the surest way is to have a Certiorari out of the Chancery into the Common Pleas directed to the Iudges there; and then out of the Chancery by a Mittimus to the Iustices of Assise: But Fenner made a doubt to take such Course for such remanding. Then Anderson, Chief Iustice, said, Sue Execu­tion out of the said Record; for in as much as the Record came be­fore us by Writ of Error, it shall also be removed and sent back by Writ. And so it was done.

CCVIII. The Queen and Hurleston's Case. Hill. 29 Eliz. In the Kings Bench.

2 Len. 194.THe Queen brought a Scire facias against Hurleston, to Repeal a Patent made to him of the Constableship of Chester, and Iudgment was given for the Queen; And now Hurleston brought a Writ of Error against the Queen in the Kings Bench. And it was moved by Gawdy, Serjeant, That the Writ did not lie for the manner, for that he ought first to have sued to the Queen by Petition. See 22 E. 3. 3. & 23 E. 3. Fitz. Error, 9. If the King recover by an Erronious Iudgment, a Writ of Error cannot be granted upon such a Recovery, sine gratia Regis speciali. And he said, That in Chester, they have Courts of Common Pleas, Kings Bench, Exchequer, and Chancery; And that if Iudgment Erronious be given in the Chancery at Westminster, It cannot be reversed, but by Parliament; and so it is of an Erronious Iudgment given in the Chancery at Chester. Also he said, They have a Custom in London, That within one month they may reverse their own Iudgment. See 23 Eliz. Dyer 376. Erronious Iudgment given in the 5 Ports, cannot be reversed in the King Bench; but it is re­versable in the Court of the Guardian of the 5 Ports.

Clench, Here both the parties claim by the Queen, therefore there needeth no Petition; for, valeat quantum valere poterit, it is no prejudice to the Queen.

Cook, There needs no Petition here, for the Attorny General hath subscribed our Writ of Error.

Egerton, Sollicitor General, It was the Case of Eliz. Mordant, who was to reverse a Fine levied during her Nonage; and the proceedings were stayed, because she had not sued to the Qeen by Petition. See the Case of 24 E. 3. 35. the Case of William de Ingu­larby, who sued to reverse a Iudgment given against him in a Writ of Conspiracy in the Eyre of Derby; and there it was said by Thorp, Iustice, That he must first sue to the King by Petition.

Wray, An Outlawry may be reversed by bringing a Writ of Error, without suing Petition to the King.

CCIX. Beckwith's Case. Hill. 29 Eliz. In the Common Pleas.

5 Co. 19. ROger Beckwich by Indenture Tripartite, between him of the first part; William Vavasour, Frances Slingsby, and Elizabeth Sister of Roger, of the second part; George Harvey, and Frances Wife of the said George, (the said Frances being another of the Sisters of the said Roger) of the third part; Covenant with the aforesaid William Vavasour, and Frances Vavasour his Daughter, [Page 161] and with the aforesaid George and Frances, & cum quolibet & qua­libet eorum, That the said Roger at the sealing and delivery of the said Indenture, was lawfully and solely seised of the Rectory of Aldingfleet in the County of York, discharged of all Incumbrances; Francis Vavasour took to Wife Frances Slingsby; And Note, That by the same Indenture, Roger Beckwith Conveyed the said Recto­ry to the said Francis Vavasour; Francis Slingsby and Frances his Wife, brought an Action of Covenant against the said Roger Beck­with; and assigned the Breach in this, That the said Roger was not seised of the said Rectory. And Note, That the Plaintiff de­clared of an Indenture bearing date at the Castle of York; And upon the breach of the Covenant, they were at Issue; which was found for the Plaintiff, and damages assessed, and Iudgment gi­ven for the Plaintiff. And Note, That the Venire facias was, de Vicineto Castri de York. And upon that Iudgment, a Writ of Error was brought in the Exchequer upon the new Statute; and Error was assigned, because all the Covenanters ought to have joyned in the Action of Covenant, notwithstanding those words, cum quolibet, & cum qualibet; which words do not make the Co­venant to be several: And for that cause, the Iudgment was Re­versed. Another Error was assigned, because the Issue is not well and duly tryed; For the Issue is upon the seisin of the Rectory of Aldingfleet; in which case, the Venire facias ought to have been de Vicineto de Aldingfleet. And of that Opinion was Manwood and Anderson, Iustices.

CCX. Young and Ashburnsham's Case. Hill. 29 Eliz. In the Common Pleas.

IN an Action of Debt brought by the Administrators of Young against Ashburnham; The Defendant pleaded, Nihil debet: And the Enquest was taken by default. And upon the Evidence given for the Plaintiff, the Case appeared to be this, That the said Young was an Innholder in a great Town in the County of Sussex where the Sessions used to be holden; And that the Defendant was a Gentleman of Quality in the Country there; And he, in go­ing to the Sessions, used to lodge in the house of the said Young, and there took his lodging and his diet for himself, his servants, and horses: Vpon which, the Debt in demand grew: but the said Young was not at any price in certain with the Defendant, nor was there ever any agreement made betwixt them for the same. It was said by Anderson, Chief Iustice, That upon that matter, an Action of Debt did not lie. And therefore afterwards, the Iury gave a Verdict for the Defendant.

CCXI. Heidon and Ibgrave's Case. Hill. 29 Eliz. In the Common Pleas.