Hil. 20 Eliz. I. Launtons Caſe.

A. Is bound in an Obligation,Emblements. that B. ſhall enjoy a Leaſe of black Acre immediately after his death: The Land being ſown, the Executors of A. take the Corn; it was holden, the Obligation was not forfeited, for that by the Laws the Corn did belong to the Executors.

II. Paſc. 23 Eliz.

A Man poſſeſſed of a Term deviſed the ſame to his Son when he came to the age of 18 years,Deviſe. and that his Wife ſhould have it in the mean time, and made his Wife his Executrix, and died before the Son came to the age of 18 years the Wife took Husband: It was holden that ſhe ſhould have the Term as Executrix, till the Son came of the age of 18 years.

III. Mich. 23 Eliz.

A Man made a Feoffment in Fee ſub Conditione, ea intentione, that his Wife ſhould have the Land for her life, the remainder to his younger Son in Fee: The Feoffee died without making ſuch an Eſtate; the Heir of the Feoffor entred; it was reſolved, that it was not a Condition, but an Eſtate, which was executed preſently according to the intent.

Trin. 8 Eliz. IV. Manning and Andrews Caſe.

Vide 1 Leon. 256. 1 Leon. 345. Fine levied a Bar.HVsband and Wife Donees in ſpecial tail, the Husband levied a Fine of the Lands. It was holden if the proclamations paſs in his life time, or before the Wife by her entry had avoided the Fine, the Iſſue ſhould be barred: otherwiſe, if the Husband had died before the proclamation had paſſed.

27 Eliz. In the Common Pleas. V. Buckhurſts Caſe.

Extinguiſhment.LEſſee for 10 years granted a Rent Charge to his Leſſor for the ſaid years, the Leſſor granted the remainder in Fee to the Leſſee for years: It was the opinion of the Iuſtices, that the rent was gone, becauſe the Leſſor, who had the rent, was Party to the deſtruction of the Leaſe, which is the ground of the rent.

26 Eliz. VI. Pulmants Caſe.

Aſſumpſit.ONe who is indebted promiſeth to pay it upon requeſt, in an Action upon the Caſe upon that Promiſe, the Party needs not to expreſs the Aſſumpſit with the requeſt, it being an old debt, but otherwiſe it is, where there is ſuch a promiſe, without any duty precedent.

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

Aſſumpſit. A Man in conſideration of 20 l. paid him, promiſeth to aſſign to J. S. the Leaſe of a Stranger: It was adjudged, that an Action would lie upon ſuch a promiſe, becauſe the Aſſumor might purchaſe the Houſe and then aſſign it.

Hil. 26 Eliz. In the Kings Bench. VIII. Rawſon and Browns Caſe.

A. Being in priſon at the ſuit of B upon an account,Aſſumpſit. and in cuſtodia Mareſcalli. The Marſhal ſuffers him to eſcape: A. being at liberty promiſeth to B. that if he will permit him to be at large, and further, if he do ſuch an act, that he will pay to him 10 l. which he doth not pay: whereupon B. brings Aſſumpſit againſt him, it was adjudged that the Action would not lie; for that both the conſiderations ought to be proved, and A. was at large before.

31 Eliz. In the Kings Bench. IX. Strangborough and Warners Caſe.

NOte, Aſſumpſit. That a Promiſe againſt a Promiſe will maintain an Action upon the Caſe, as in conſideration that you do give to me 10 l. on ſuch a day, I promiſe to give you 10 l. ſuch a day after.

31 Eliz. X. Eſcrigs Caſe.

IF an Executor promiſeth to a Creditor,Aſſumpſit. that if he will forbear to ſue him until ſuch a time, that then he will ſatisfie the Creditor his debt; in that caſe the Execuor is liable to pay the debt of his own goods; adjudged.

30 Eliz. In the Kings Bench, Rot. 30. XI. Kirkman and Reignotts Caſe.

A Leaſe was made to two, Habendum to them,Occupant. and to two others for their four lives, and the longer liver of them: It was reſolved, that the two named in the Habendum ſhould not take any thing, and that if the two firſt die, there ſhould be no Occupancy, for the lives of the two in the Habendum, was intended an Eſtate to them, and not a Limitation of the Eſtate of the firſt two.

Paſc. 30 Eliz. XII. Barkhouſe Caſe.

DEbt againſt Leſſee for years for rent:Forfeiture. The Defendant claimed Fee in the Land whereas he had no Fee: It was reſolved that it was a forfeiture.

XIII. Paſc. 31 Eliz. In the Common Pleas.

Avowry.IT was reſolved by the Iuſtices, that an Avowry might be for part of a Rent.

Mich. 28 Eliz. In the Kings Bench. XIV. Strangden and Burnets Caſe.

IN an Action of Trover and Converſion of Goods to his proper uſe in Ipſwich: The Defendant pleaded that the Goods came to hands in Dunwich in the ſame County, and that the Plaintiff gave unto him all Goods which came to his hands in Dunwich, Pleadings. abſque hoc that he is guilty of any Trover or Converſion in Ipſwich: It was ruled to be a good manner of pleading, by reaſon of the ſpecial Iuſtification, Vide 27 H. 6. But where a Iuſtification is general, the County is not traverſable at this day, Vide 19 H. 6, 7.

24 Eliz. In the Common Pleas. XV.

Infant.AN Infant made a Leaſe for years rendring rent, and when he came to his full age, he ſaid to his Leſſee, God give you joy of it: It was holden by Mead Iuſtice, that thereby the Leaſe was affirmed and made good.

Paſc. 25 Eliz. XVI. Fullers Caſe.

ONe is bound to pay his rent at a day certain, payment before the day, adjudged, doth not diſcharge him.

29 Eliz. In the Kings Bench. XVII. Carter and Martens Caſe.

Payment.TWo are bound for a Debt, the Principal makes the Surety his Executor who pays the Debt generally: Quaere if it ſhall be as Executor or as Obligor.

XVIII. Pophams Caſe.

Bargain and Sale.LAnd was bargained and ſold, the Bargainee levies a Fine of the Lands, and afterwards within the ſix months the Deed is enrolled. It ſhall paſs by the Fine, and the Conuſee ſhall have the Land, for the Enrollment ſhall relate to the time of the bargain and ſale.

18 Eliz. XIX. Henninghams Caſe.

IT was adjudged in this Caſe, that he who is ſpecial Heir by the Cuſtom, as of Borough Engliſh Land, ſhall have the Writ of Error, and not the Heir at the Common Law.

Hil. 19 Eliz. Adjudge. XX. Parry and Herberts Caſe.

LEſſee for years upon Condition that he ſhall not grant over the Land by Will or otherwiſe,Condition. and he deviſeth the ſame to his Executors, who except it only as Executors, and not as Deviſees: It was holden, that the Condition was broken: becauſe he had done as much as in him lay to have granted it over.

In the Exchequer. XXI. Sir Thomas Hobbies Caſe.

A Man hath iſſue two Sons, and is attainted,Heirs. the eldeſt Son purchaſeth Land, and dyeth without iſſue, the ſecond Son ſhall inherit the Land as Heir to him, notwithſtanding the attainder of the Father, becauſe the blood is not corrupted between the two Sons.

Mich. 29 Eliz. In the Kings Bench. XXII. Barton and Edmunds Caſe.

AN Infant and another were bound for the debt of the Infant,Infant. the Infant at his full age promiſed to ſave the other harmleſs, the Infant died; It was adjudged, that upon this Aſſumpſit, Aſſumpſit. an Action upon the Caſe did lie againſt his Executors.

XXIII. Mich. 36 Eliz. In the Kings Bench, adjudged.

IF an Executor promiſe to pay a Debt when he hath not Aſſets; It was the Opinion of all the Iuſtices; that no Action upon the Caſe lieth againſt him; but if he hath aſſets, then it is otherwiſe: And the Heir if he hath nothing by deſcent, is not ſubject to an Action upon ſuch a promiſe.

Mich. 28 Eliz. XXIV. The Lord Pagets Caſe.

Indictments.AN Indictment was Quare vi & armis clauſam A. B. apud D. fregit, whereas A. B. then had a Leaſe at Will of the land, the matter was for digging of Turfs: the Indictment was holden to be good.

XXV. 25 Eliz In the Kings Bench.

Indictments.INdictment De uno Equo, where it was a Gelding, holden not good: But otherwiſe it is, where Treſpaſs was brought de Equo caſtrato, and the Iury found a Gelding, and adjudged for the Plaintiff.

26 Eliz. XXVI. Tucker and Nortons Caſe.

Execution.AN Infant in Execution upon condemnation in Debt ſued a Writ of Error, his Father and Brother bailed him: It was ſaid the Recogniſance ſhall be by them two only that the Infant ſhall appear, and if the Iudgment be affirmed, that they pay the mony, and not that they ſhall render his body to priſon, for when he is once diſcharged out of Execution, he ſhall never be in Execution again.

XXVII. Mich. 29 Eliz. In the Common Pleas.

Nobleman. Recognizance.IT was holden by the Iuſtices, That a Nobleman ſhall be bounden with his bail in a Recognizance, that he ſhall render his body, and that upon the Statute of 13 E. 1. If he hath not goods or lands, his body ſhall be taken in execution, for the Law in ſuch caſe excepts only Clarks.

XXVIII. Hil. 26 Eliz. In the Exchequer.

Felo de ſe.THe Queen granted to one Catalla utlagatorum & felonum de ſe within ſuch a Precinct, One indebted to the Queen having Goods is felo de ſe, within the Precinct: Reſolved the Queen ſhould have the Goods to ſatisfie her debt.

26 Eliz. In the Kings Bench. XXIX. King and Cottons Caſe.

LEſſee for life, the remainder in tail, the remainder in fee,Diſſeiſin. Leſſee for life makes a Deed of Feoffment of the Land, and delivers it, and makes a Letter of Attorney to another to deliver Seiſin, who enters and makes Livery accordingly; adjudged that the Attorney is a Diſſeiſor.

26 Eliz. In the Kings Bench. XXX. Gerrards Caſe.

THe Owner of the Lands ſevered his Tythes,Prohibition. and a ſtranger took them and carried them away. The Parſon libelled in the Spiritual Court againſt the Owner of the Land for the Tythes; who thereupon prayed a Prohibition. It was adjudged no Prohibition ſhould iſſue in this Caſe; for that he might plead the ſame matter in Bar in the Spiritual Court.

Hil. 31 Eliz. XXXI. Willet and Wilkinſons Caſe.

NOte, it was adjudged,Surrender. that if Leſſee for years take another Leaſe from the Guardian in Soccage, that the ſame is a Surrender of his firſt Leaſe: Note, the ſecond Leaſe was made in the name of the Guardian.

Trin. 26 Eliz. XXXII. Ould and Conyes Caſe.

IT was adjudged,Commoner, Conies. that a Commoner cannot kill Conies which deſtroy his Common, though he hath not any other remedy.

Trin. 29 Eliz. In the Kings Bench. XXXIII. Mayes Caſe.

ONe ſent a Letter by a Carrier to a Merchant for certain Merchandizes to ſend them to him, receiving a certain ſum of mony, the Merchant ſent the Merchandizes by the Carrier, without receiving the mony: It was the opinion of the Iuſtices, that the Buyer ſhould not be charged for the mony, for it was a conditional bargain, and it was the folly of the Merchant to truſt the Carrier with the Wares.

Mich. 30 Eliz. XXXIV. Haltons Caſe.

A Recognizance was acknowledged before Sir N. Read one of the Maſters of the Chancery, Recognizance. Inrollment. and the Recognizor died before it was enrolled, it was doubted, if it might be enrolled at the Petition of his Executors; it was agreed by the Iuſtices that it might be well enough, for it is like to a Conuſans of a Fine before a Iudge, which may be removed out of the hands of the Iudge by Certiorari, and yet it is not a Record till the perfection of it: At the ſame time it was doubted alſo, if the Chancery would aid a man, when there wanted the words (Heirs) in a Deed where the land was ſold for mony.Chancery compel Attornment. But it was agreed that after a Fine levied the Chancery might compel the Tenant to Attorn.

Hil. 27 Eliz. XXXV. Holland and Hopkins Caſe.

IN Ejectione firmae it was agreed by the Court, that if a Diſſeiſor be of an 100 Acres, and he lets the ſame to divers for Years, that the entry into one Acre by the Diſſeiſee is an entry againſt them all; but if they had been Tenants for life, Quaere, for that then he might have his Action againſt them: And it was ſaid,Entre congeable. that if one makes a Leaſe for years, rendring for the firſt two years 10 l. and afterwards 30 l. every year, with condition, if the rent of 30 l. or any part of it be behind, that the Leſſor enter; The Leſſor enters for not payment of the 10 l. that his entry is lawful, for the 10 l. was parcel of the rent, for it was but one rent.

Trin. 29 Eliz. In the Kings Bench. XXXVI. Clamp and Clamps Caſe.

Copyholder Surrender. A Copyholder in poſſeſſion ſurrendred the Reverſion of his land poſt mortem ſuam to the Lord to an uſe, &c. It was adjudged, that thereby nothing paſſed.

XXXVII. Trin. 21 Eliz. In the Common Pleas.

A Leaſe was made of a Mannor, with all Gardens, Orchards, Yards, &c. and with all the profits of a Wood, except to the Leſſor forty Trees to take at his pleaſure: It was a Queſtion, if the Leſſee ſhould have the Wood: It was the opinion of Dyer, That the Wood was not compriſed within the Leaſe, but the Leſſee ſhould only have the profits, as pawnage,Leaſes. herbage, &c. And he ſaid it was a Caſe adjudged; a man made a Leaſe of a Wood ad faciendum maximum proficuum meliori modo quo poterit, that the Leſſee thereby could not cut the Trees, nor do waſte.

Mich. 33 Eliz. In the Exchequer. XXXVIII. Butler and Lightfoots Caſe.

IT was holden by the Barons,Copyholder Surrender. 3 Leon. 239. That if Tenant for life be of a Copyhold, the Remainder over in Fee to another, he in the Remainder, may ſurrender his Eſtate, if there be no cuſtom to the contrary; for the Eſtate of Tenant for life, and he in the Remainder, are but one Eſtate, and the admittance of the particular Tenant is the admittance of him in the Remainder.

XXXIX. Mich. 33 Eliz. In the Exchequer.

IN an Information upon the Statute of 5 Eliz. cap. 4.Upon Statute of 5 Eliz. Apprentices. againſt one for exerciſing the Trade of a Chandler, not having been an Apprentice to the ſame by the ſpace of 7 years: It was holden by the Iuſtices, That for as much as he had been Apprentice to a Taylor for 7 years, which is one of the Trades mentioned in the ſaid Statute, that the penalty thereof did not extend to him, but Iudgment was given againſt the Informer: For it was holden clearly upon the ſaid Statute, That if one hath been an Apprentice for 7 years at any Trade mentioned within the ſaid Statute, he may exerciſe any Trade named in the ſaid Statute, although he hath not been an Apprentice to it. —

Mich. 33 Eliz. In the Exchequer. XL. Sir John Hawkins and Chapmans Caſe.

IF A. be bounden to B. by Obligation with Condition for the performance of Covenants although the Covenants,Aſſignment of Bonds to the Queen. or ſome of them, be for payment of money, yet the aſſignment of ſuch Bonds to the Queen ſhall not be received, and if it be aſſigned, it ſhall be put out of the Court; For no Bonds ſhall be aſſigned ut ſupra, but ſuch which are made for payment of money.

XLI. Mich. 33 Eliz. In the Exchequer.

A. Leſſee for years, the remainder to B for years; the term of A. came to the Queen and afterwards the Reverſion. Clark Baron ſaid, That the Leaſe of B. ſhould begin preſently, and cited the Caſe 1 Eliz between Worteſly and Adams, where a Leaſe for years is made to A. and afterwards a Leaſe in Reverſion is made to B. for years. A. obtains an Eſtate for life from him in the reverſion; the Leaſe of B. ſhall begin preſently: But Manwood Chief Baron held that the firſt Leaſe was not extinct.

XLII. Mich. 33 Eliz. In the Exchequer.

Upon Stat. 31 Eliz. of Inmates.UPon the Statute 31 Eliz. cap. 7. the Caſe was this: A Woman having a great Meſſuage, viz. a Brewhouſe alotted to her for her Dower, let the ſame to another, reſerving to her ſelf two or three Rooms of it, and now an Information was exhibited againſt the Leſſee upon the ſaid Statute. Clark Baron, A Cottage proprie loquendo, is where a poor man inhabits, and this being a great Meſſuage cannot be ſaid a Cottage; Inmates are, where there are more Families than one. Manwood, Be it a Meſſuage or a Cottage, for more Families than one makes a Meſſuage a Cottage, as to this Statute. Gent. The words of the Statute are, There ſhall not be more Families than one in any Cottage made, or to be made, and I conceive it ought to be a Cottage accounted in Law, before the inhabitations of the Inmates. Clark, If I grant to you all my Cottages in D. my Meſſuages ſhall not paſs: If I marry my Daughter, and ſhe and her Husband inhabit with me in the ſame houſe, are theſe Inmates? Manwood. An Inmate is ſuch an one who is at his own finding, and therefore if the Husband and Wife are entertained there at the charge of the Father of the Daughter, they are not Inmates: And if in our Caſe any Inmate be, the ſame is the Woman, for ſhe hath the leſſer part of the Meſſuage.

Mich. 33 Eliz. In the Exchequer. XLIII. Curſons Caſe.

3 Leon: 239. Execution of a Statute binds the King. CUrſon acknowledged a Statute to Alderman Starkey of London, and afterwards he acknowledged another Statute to one Hampden, who aſſigned the ſame to Fitton, who aſſigned the ſame to the Queen: Starkey ſued forth Execution upon his Statute, and the Lands of Curſon are Extended, and he hath a Liberate of it:Aſſignment to the Queen. It was agreed by all the Barons, if Starkey had Execution upon his Statute before the Queen, the Execution ſhall ſtand againſt the Queen, and the Queen ſhould not put him out. A. recovers Debt in the Kings Bench, ſo as he hath Title to ſue Execution by Elegit. The Defendant ſold his Lands, and afterwards A. aſſigned his Execution to the Queen: It was holden, that the Queen ſhould not have Prerogative againſt the Feoffee, to have Execution of the whole Land; and it was holden by Manwood Chief Baron, If Execution be had upon a puiſne Statute, and that is afterward avoided by an elder Statute, and the elder Statute is ſatisfied by the Execution, now the younger Recognizee ſhall enter without ſuing forth a new Execution.

Trin. 26 Eliz. In the Kings Bench. XLIV. Clarks Caſe.

IN Ejectione firmae, The Caſe was, the Maſter. Brothers,Leaſes by Corporations. Miſnoſm. and Siſters of the Hoſpital of the bleſſed Mariae Virginis, by Indenture, by the name of the Hoſpital Beatae Mariae, &c. leaving out the word (Virginis) leaſed the Land: It was reſolved, that notwithſtanding the want of the word (Virginis) that the Leaſe was good: Then it was moved, that the words of the Indenture are, Haec Indentura inter Magiſtrum, Fratres, & Sorores Hoſpital. Beatae Mariae, &c. Teſtatur; that the ſaid Maſter, with the aſſent of the Brothers and Siſters aforeſaid, had leaſed to A. in cujus rei teſtimonium, the ſaid Maſter, with the aſſent of the Brothers and Siſters aforeſaid had put their common Seal: Ayliffe and Clench Iuſtices, held that the Leaſe was void, for here the Brothers and Siſters, being one entire Body with the Maſter, are not parties to the Indenture, but give their conſent only: And it is not like to the Caſe, where Abbot or Prior makes a Leaſe for years, with the aſſent of their Covent, for the Monks and Friers, being dead perſons in Law, cannot be parties to the Leaſe; but here in the Caſe at Bar, the Brothers and Siſters are perſons able in Law: And it is not like to the Caſe of Parſon, Patron, and Ordinary, where the Parſon with the aſſent of the Patron and Ordinary, grant a Kent-charge, for there the Parſon is the principal Grantor, and the others have not any expreſs intereſt in the Land charged: Gawdy Iuſtice contrary, It is more honourable for Iudges to maintain Leaſes made by Corporations, than for to permit them to avoid the ſame: And he ſaid for law, If two Ioyntenants be of Lands, and they make the like Indenture, viz. Teſtatur, that one of them with the aſſent of the other deviſeth the Land,Leaſes, in witneſs whereof he, with the aſſent of the other, hath put his Seal, it is a good demiſe by them both: But Clench ſaid, that is not like our Caſe, for the two Ioyntenants are diſtinct perſons and the one of them may aſſent to the other; but in our Caſe, the Maſter, Brothers, and Siſters are but one perſon in Law, and a Body cannot be diſtinct, ſo as one can conſent to the other: which Ayliffe conceſſit: Wray Chief Iuſtice was abſent in the Star-Chamber.

Trin. 26 Eliz. In the Kings Bench. XLV. Harvey and Harveys Caſe.

Suit for Legacies. Prohibition. CLare Harvey libelled againſt Sebaſtian Harvey, the Executor of Sir James Harvey their Father, for a legacy bequeathed to him by his Father in his Will. By which he willed, that after his death his Goods ſhould be divided and parted betwixt his Children, according to the laudable cuſtom of London, and averred in his libel that the Goods and Chattels whereof the Teſtator died poſſeſſed, amounts to ſuch a ſum, and that it belonged unto him, being one of his children, to demand ſo much, Virtute Legationis praedict. The Defendant came and prayed a Prohibition, and Wray Chief Iuſtice conceived he ought to have it, for here is not any legacy, but the Teſtator ſetteth forth his meaning, that his pleaſure is that the cuſtom of London ſhould be obſerved in the diſpoſition of his Goods; and the ſaid Clare is put to his Writ de rationabili parte Bonorum. But yet afterwards, a ſpecial Conſultation was granted.

Paſc. 27 Eliz. In the Common Pleas. XLVI. Sanderſons Caſe.

Leet. NOte, It was adjudged by the Court, that Pound-breach is not inquirable in a Leet, for it is not a common Nuſans: But Rhodes Serjeant ſaid that exceſſive Toll is inquirable in a Leet. Vide Book of Entries 390.

XLVII. Paſc. 37 Eliz. In the Common Pleas.

Abatement of Writ.IN a Quare Impedit by the Queen, exception was taken to the Writ, becauſe the words were quod permittat ipſam praeſentare ad Rectoriam de D. where it ought to be ad Eccleſiam: the Court awarded that the Writ ſhould be openly amended in Court by a Clerk of the Chancery. Amendment.

XLVIII. Paſc. 27 Eliz. In the Common Pleas.

Pleadings.IN a Writ of Entry for Diſſeiſin, the Tenant ſaid, that the Houſe in demand is within the City of London, and that the ſaid City is an ancient City, and that King Henry 3. conceſſit Civibus Civitatis praedict quod non implacitentur de terris, & tenementis ſuis, &c. extra Muros Civitatis praedict. and ſaid that he himſelf is a Citizen of London, and demanded judgment of the Writ; and to the Pleading he further ſaid, Sed illis rectum teneatur infra Civitatem praedictam ſecundum Conſuetudinem Civitatis praedict. Exception was taken to the Plea, becauſe the Tenant did not ſhew before that by their cuſtom they ought to be impleaded: And by the Opinion of the whole Court, the Tenant ought to have ſhewed, that the Citizens for their lands there ought to be impleaded in the Huſtings, &c. And the general words in the Plea Sed illis rectum reneatur infra Civitatem praedictam ſecundum conſuetudinem Civitatis praedict. do not ſupply the defect aforeſaid: And afterwards it was awarded that the Tenant plead Ouſter.

Mich. 21 Eliz. In the Common Pleas. XLIX. Hunt and Sones Caſe.

AN Action upon the Caſe by W. Hunt againſt W. Sone. Aſſumpſit. 2 Leon. 107. Owen 42. 3 Cro. 118. 1 Roll. 29. & 30. ibid. The Plaintiff declared, Quod cum idem Hunt was ſeiſed in his Demeſn as of Fee, of certain lands, and ſhewed the ſame in certain; praedict. Sone in conſideration that the ſaid Hunt permit the ſaid Sone occupare terras praedict. ab eodem die. 20 Julij 27 Eliz. uſque ad ſecundum diem Novembris, which ſhould be in Anno 1589. aſſumed and promiſed, that he the ſaid William Sone ad feſtum omnium Sanctorum proxime ſequend. 10 l. 2 s. 6 d. ac ab inde annuatim durante dict. termino. 20 l. 5 s. ad feſta Annunciationis Beatae Mariae, ac omnium Sanctorum, per aequales portiones ſolvend eidem Hunt bene & fideliter contentare vellet, at licet praedict. W. Hunt permiſit praefat. Sone occupare terras praedict. a dict. 20 die Julij 27 Eliz. Uſque ad ſecundum diem Novemb. 28 Eliz. Licetque etiam poſt dict. 20 diem Julij 27 Eliz. & ante praedict. diem ſecund. Novemb. An 28 Eliz. dict. feſt. omnium Sanctorum An. 27. Supradict. ac feſt. Annunciationis Beatae Mariae Virginis, ac feſt. omnium Sanctorum 28 Eliz. praeterierunt, praedict. tamen W. Sone dict. 10 l. 2 s. 6 d. ad praedict. feſt. omnium Sanctorum proxime ſequend. poſt permiſſionem & aſſumptionem praedict, ac aliam 10 l. 2 s. 6 d. ad feſt. Annunciationis 28 Eliz. ac alia 10 l. 2 s. 6 d. ad feſt. omnium Sanctorum An. 28. Eliz. ſuperdict. nondum ſolvit. The Defendant pleaded, that the Plaintiff entred into parcel of the Premiſes 6 October 28 Eliz. & eadem occupare eundem Sone non permiſit; upon which they were at Iſſue, and it was found for the Plaintiff; it was moved in ſtay of Iudgment, that the Plaintiff had no cauſe of Action before that all the Term was expired; for it is an entire Aſſumpſit, and cannot be ſevered by action, and therefore it was ſaid, that if I promiſe to pay you 10 l. viz. at ſuch a Feaſt 5 l. and at ſuch a Feaſt other 5 l. there before the laſt day of payment no Action lieth, for the ſum of 20 l. is one ſum entire: But if I promiſe to pay another, at Eaſter next 10 l. and at Midſummer as much, here they are ſeveral Aſſumpſits, and upon default of payment of the firſt ſum an Action will lie without excepting the latter payment. But at laſt the Court agreed, That Iudgment, notwithſtanding that exception ſhould be given for the Plaintiff, and that the Declaration was good enough, as well in reſpect of the Exception aforeſaid, as alſo that the word (Licet) was effectual enough to ſet forth the permiſſion.

L. Hil. 31 and 32 Eliz, In the Common Pleas.

A. Diſſeiſed B. of two Acres of Land and leaſed one of them to C. at will, and the other Acre to D. at will, and they entred accordingly: B the Diſſeiſee by Leaſe leaſed both Acres to E. for years, and entred into one of the Acres in the name of both, and ſealed and delivered the Leaſe to E. It was holden by the Court to be a good Leaſe to maintain an Ejectione firmae of both Acres.

LI. Mich. 32 Eliz. In the Common Pleas.

2 Cro. 655, 656 plus. 2 Roll. 416. Johnſon verſus Smart. cont. A. Seiſed of certain Lands and having two Sons, deviſed part of his Lands to his eldeſt Son in tail: and the other part of his Lands to his younger Son in tail, with this clauſe in the Will, that if any of his Sons dyed without Iſſue, that then the whole Land ſhould remain to a ſtranger in Fee, and dyed the Sons entred into the Lands deviſed to them reſpectively, and the younger Son died without iſſue, and he to whom the Fee was deviſed entred: It was adjudged, That this Entry was not lawful, and that the eldeſt Son ſhould have the Land by the implicative deviſe.

Mich. 32 Eliz. In the Common Pleas. LII. Frice and Foſters Caſe.

IN Ejectione firmae, the Plaintiff declared upon a Leaſe made 14 Jan. 30 Eliz. to have from the Feaſt of Chriſtmas then laſt before, for three years; and upon the Evidence the Plaintiff ſhewed a Leaſe, bearing date the 13 day of January the ſame year, and it was found by Witneſſes, that the Leaſe was ſealed and delivered upon the Land the 13 day of January: Variance. Whereupon Puckering and Cowper Serjeants moved on the part of the Defendant, that for that variance between the Declaration and the Evidence of the Plaintiff, that the Iury might be diſcharged:Evidence good to maintain Iſſue. But Anderſon Chief Iuſtice ſaid, that the Evidence was good enough to maintain the Declaration, for if the Leaſe was ſealed and delivered the 13 of January, it was then a Leaſe 14 January, Quod caeteri Juſticiarii conceſſerunt.

LIII. Mich. 32 Eliz. In the Common Pleas.

IN a Quare Impedit againſt the Biſhop of Coventry and Lichfield: The Caſe was, that A. ſeiſed of an Advowſon in Fee, Quare Impedit by Executors. the Church voided, the Biſhop collated wrongfully, A. dyed,Collation. it was holden that his Executors might have a Quare Impedit upon that diſturbance, and that by the equity of the Statute, which gave an Action of Treſpaſs to Executors of Goods carried away in the life of the Teſtator, 4 E. 3. cap. 7. and that the Clerk ſhould be removed at the ſuit of the Executors.

Mich. 32 Eliz. In the Kings Bench. LIV. Harvey and Thomas Caſe.

THe Caſe was that the Husband ſeiſed of Land in the right of his Wife, made a Leaſe of it for years,Fine by the Husband where avoids a Leaſe & ê contra 1 Roll. tit. Charge in Marg. 389. Plow. Quaer. 31. 261. ib. plus. and afterwards he and his Wife conveyed the Land to a ſtranger by Fine, the Husband died. Wray Chief Iuſtice was of opinion that the Conuſee ſhould hold the Land diſcharged of the Leaſe. Gawdy, contrary, In caſe of a Rent granted, or a Recognizance acknowledged by the Husband, the Conuſee of the Fine ſhall avoid any of them; But in this Caſe the Conuſee meddles with the Land it ſelf, and an Eſtate in the Land is conveyed by the Husband, which none but the Wife or her Heirs ſhall avoid; and if the Wife, after the death of her Husband, accept the Rent upon ſuch a Leaſe, by that the Leaſe is confirmed.

Mich. 33 Eliz. In the Kings Bench, LV. Blaby and Eſtwicks Caſe.

IN Aſſumpſit, It was moved in ſtay of Iudgment,Aſſumpſit. that one of the Defendants was dead after verdict; but notwithſtanding that Allegation, Iudgment was given,Attornment. for the Court cannot take Notice of it judicially, nor any of the Parties hath day in Court to plead it, and therefore the Court is not to have regard to ſuch Informations. Wray, It is not honourable for us upon ſuch ſurmiſes, which cannot be tryed, to delay Iudgment; and alſo the Party is not without remedy, for he may have a Writ of Error.

33 Eliz. In the Kings Bench. LVI. Hore and Briddleworths Caſe.

HOre brought Treſpaſs againſt Briddleſworth, Quare clauſum & Domum ſuam fregit; the Defendant pleaded, and put the Plaintiff to a new Aſſignment, i. e. a Houſe called a Stable, a Barn; and another Houſe called a Carthouſe and Garnier: And that was aſſigned for Error for that Aſſignment is not warranted by the Declaration. Gawdy ſaid it was good enough, for Domus in the Declaration contains all things contained in the new Aſſignment; but if the Declaration had been of a Cloſe, and the new Aſſignment of a Barn, it had not been good. Wray Chief Iuſtice, Domus eſt nomen collectivum, and contains many Buildings, as Barns, Stables, &c. And ſuch was the Opinion of the Court.

Mich 33 Eliz. In the Kings Bench. LVII. Mans Caſe.

Prohibition. MAn was ſued before the Commiſſioners in Eccleſiaſtical Cauſes, for an Inceſtuous Marriage, viz. for marrying his Wives Siſters Daughter, and although it be not expreſly within the Levitical degrees, yet becauſe more farther degrees are prohibited the Archbiſhop of Canterbury, and other the Commiſſioners gave Sentence againſt him,Conſultation. upon which he ſued a Prohibition upon the Stat. of 32 H. 8. c. 38. The Prohibition was general where it ought to be ſpecial, that it be not within the Levitical degrees, and therefore a Conſultation was granted.

Trin. 26 Eliz. In the Kings Bench. LVIII. Doylies Caſe.

Appeals.IN an Appeal de Roberie againſt Doyly; It was agreed by the Iuſtices that the Party robbed ſhall have an Appeal of Robbery 20 years after the Robbery committed, and ſhall not be bound to bring it within a year and a day, as in the Caſe of an Appeal of Murder: Vide contr. 22 Aſſ. 97. vide Stamford 62.

Trin. 26 Eliz. In the Kings Bench. LIX. Ruiſhbrook and Puſanies Caſe.

THe Plaintiff brought Treſpaſs for pulling down his Hurdles in his Cloſe: The Defendant juſtified, by reaſon that one Beddingfield was Lord of the Mannor of D. and that the ſaid Beddingfield, and all thoſe whoſe Eſtate he had in the ſaid Mannor, had had a free courſe for their ſheep in the place where &c. And that the Tenant of the ſaid Cloſe could not there erect Hurdles without the leave of the Lord of the Mannor, and that the ſaid Beddingfield let to the Defendant the ſaid Mannor, and becauſe the Plaintiff erected Hurdles without leave, &c. in the ſaid Cloſe, he caſt them down, as it was lawful for him to do: The Plaintiff replyed of his own wrong without cauſe, &c. It was holden by the Iuſtices to be an ill Plea,Traverſe. for the Plaintiff ought to have traverſed the Preſcription.

19 Eliz. In the Common Pleas. LX. Par Marqueſs of Northamptons Caſe.

PAr Marqueſs of Northampton took to Wife the Lady Bourchier, Heir of the Earl of Eſſex: Leaſes, by a Baron contrary to Act of Parliament, void. 3 Leon. 71. who levied a Fine of the Lands of the 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 ſaid Lady. And afterwards by Act of Parliament • 5 H. 8. It was enacted. That the ſaid Lady ſhould retain part of her Inheritance, and diſpoſe thereof as a Feme ſole, and that the ſaid Marqueſs ſhould have the reſidue, and that he might leaſe the ſame by himſelf without the Wife for 21 years, or leſſer term, yielding the ancient Rent, being Land which had been uſually demiſed, &c. The Marqueſs leaſed the ſame for 21 years, and afterwards durante termino praedict. he let the ſame Land to another for 21 years, to begin after the determination of the former Leaſe. It was moved that the laſt Leaſe was void, for three Cauſes; 1. Becauſe the Marqueſs had but for Life, and then it cannot be intended, that the Statute would enable one, who had an Eſtate ſo determinable to make ſuch a Leaſe, which peradventure could not begin in his Life. 2. The Letter of the Act is 21 years or under; and the word (under) ſtrongly expounds the meaning of the Act to be not to extend to ſuch an Eſtate, for hereupon the matter is a Leaſe for 40 years. 3. Becauſe the Land leaſed is the Inheritance of the Wife; and it was ſaid that in the Caſe of one Heydon ſuch a private Act of Parliament was ſtrictly conſtrued,Acts of Parliament. It was enacted that all Copies for three Lives granted by the Lord Admiral, of the Lands of his Wife which was Queen Katherine ſhould be good: The Admiral granted in Reverſion for three Lives. It was holden that the Grant was void, and not warranted by the ſaid private Act of Parliament. Dyer, The words are general, omnes dimiſſiones, therefore not to be reſtrained to ſpecial Leaſes. Manwood, A Feme covert by dureſs joyns in a Leaſe with her Husband, it ſhall bind her. The Caſe was adjourned.

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

THe Queen leaſed for years rendring 10 l. Rent; the Leſſee granted the Land over to A. rendring 20 l. Rent: A. granted the Land over to B. who ſurrendred to the Queen, and took a new Leaſe: And Manwood ſaid, that the firſt Leſſee ſhould have an Action of Debt for the Rent of 20 l. againſt him,Debt for Rent. who was poſſeſſed of the Land, and not againſt A. his Aſſignee, for it is a Rent iſſuing out of the Land, and he who hath the poſſeſſion of the Land ſhall pay it, and no other; for if any part of the Land be evicted, the Rent ſhall be apportioned; and becauſe it is meerly a Rent, and enſues the privtiy real, viz. the poſſeſſion of the Land, and not the privity perſonal, the Perſon of him who was party or privy to the Contract; and he ſaid, If the firſt Leſſee, who reſerved the Rent, entred upon the Land, the Rent is ſuſpended. Dyer, The firſt Leſſee hath Election which of them he will ſue, 18 H. 6. 1. in Debt, againſt Leſſee for years, for the Arrearages of Rent reſerved upon it, he needs not declare that the Leſſee had entred, for the Contract is the ground of the Action 44 Eliz. 3. 5. Debt againſt the Leſſee, notwithſtanding the Aſſignment.

Mich. 26 Eliz. In the Common Pleas. LXII. Bluets Caſe.

BLuet granted the next Avoidance to Stell and Brooks, and was bound to Brooks in an Obligation that he ſhould enjoy the ſaid Preſentment without any diſturbance or claim of the ſaid Bluet: Stell releaſed to Bluet his Intereſt on the ſaid Advowſon; The Church became void, Bluet▪ offer'd to joyn with Brook, Obligation forfeited. in preſenting to the Avoydance: It was holden in this Caſe, that the Obligation was forfeited, although that Bluet had a puiſne Title to it, after the Obligation was entred into.

Mich. 32 Eliz. In the Common Pleas. LXIII. Shrewsbury and the Inhabitants of Aſhtons Caſe.

Action upon Statute of Huy and Cry.AN Action was brought by Shrewsbury againſt the Inhabitants of the Hundred of Aſhton in the County of Bucks, upon the Statute of Huy and Cry: It was moved by Fleetwood Serjeant, for the Defendants That if upon ſuch Huy and Cry the Inhabitants do their endeavours as much as in them is, to purſue and take the Malefactors, and yet they cannot apprehend them, that in reaſon they ought not to be charged: But the whole was very ſtrongly againſt him: For Anderſon Chief Iuſtice ſaid that the Inhabitants of the Hundred in which the Robbery is done are bound to apprehend the Felons, or to ſatisfie the Party robbed: and the Party robbed is not bound to give notice to the Inhabitants, nor to direct them which way the Felons took their flight, but the Inhabitants are bound to purſue the Felons without any ſuch inſtruction. And afterwards the Inqueſt was taken, and gave a Verdict in this manner: That where the Plaintiff had declared that the Robbery was done in the Pariſh of D. in the Hundred aforeſaid, the Iury found, that the place where the Robbery was done was a Lane within the ſaid Hundred and that the one ſide of the ſaid Lane was within the Pariſh of S. and the other ſide within the ſaid Pariſh of D. and that the Robbery was done on the ſide of the ſaid Lane, which was in the Pariſh of S. and prayed the Opinion of the Court upon the matter: And the whole Court was clear of Opinion. That notwithſtanding the Exception, the Plaintiff ſhould have Iudgment, for here is the right Hundred, which ought to be charged, and the miſtaking of the Pariſh was not to the purpoſe.

Mich. 32 Eliz. In the Common Pleas. LXIV. Joſſelin and Joſſelins Caſe.

IN Debt; the Plaintiff declared, That he let certain Lands for years to the Defendant, rendring Rent payable at the Feaſts of the Annunciation and St. Michael, or within forty days after every of the ſaid Feaſts, and that the Rent was behind at the Feaſt of St. Michael laſt paſt, unde actio accrevit: The Defendant pleaded, Nihil debet; upon which they were at Iſſue: It was ſhewed to the Court that here upon the Pleading is a Ieofail, for the Rent is reſerved payable at the ſaid Feaſts,Jeofails. or within forty days after; and he declares that the ſaid Rent, upon which the Action was brought, was behind at St. Michael, without reſpect to the forty days after, which cannot be; for before the forty days after each Feaſt, no Action did lie; whereupon the Court awarded a Repleader.

Mich. 32 Eliz. In the Kings Bench. LXV. The Queen and the Earl of Shrewsburies Caſe.

THe Queen granted to George Earl of Shrewsbury, Grants of the King. Office of Marſhal of the Kings Bench. An. 15 Eliz. the Office of Earl Marſhal of England, and now came the ſaid Earl and prayed that J. N. one of his Servants, to whom he had granted the Office of Marſhal of the Kings Bench, might be admitted to it, becauſe that the ſame is an Office incident to his Office, and in his power to grant; and that Knowles, to whom the Queen had granted the ſame Office of Marſhal of the Kings Bench, which ſhe had by the Attainder of Thomas Duke of Norf. might be removed. And a Preſident was ſhewed M. 14 and 15 Eliz. between Gawdy and Verney, where it is agreed, That the ſaid Office was a ſeveral Office from the ſaid great Office, and not incident to it; And as to the Caſe of 39 H. 6. 33 & 34. the truth is, that the ſaid Marſhal of the Kings Bench was granted expreſly to the Duke, and ſo he had it, not as incident to his Office of Marſhal of England: On the other ſide were three Preſidents ſhewed; In the time of Edward 2. That the Office of Marſhal of the Kings Bench was appendant to the ſaid Office of Marſhal of England. And 8 H. 2. when the ſaid Great Office was in the King, he granted the ſaid Office of Marſhal of the Kings Bench: But 26 R. 2. both Offices were rejoyned by Parliament as they were in ancient time before; and there was alſo ſhewed one Patent of 4 E. 4. and another of 19 H. 8. by which it appeared that the ſaid inferiour Office had ever been part of the Grand Office; Then it was moved, That when the ſaid Office is in the Kings hands, and the King grants the ſaid Vnder Office, If the ſame was for ever ſevered from the Grand Office. Wray Chief Iuſtice, It is a ſeverance of it; for the chief Office is an Office of Dignity, which remains in the King; but the under Office is an Office of Neceſſity, and the King himſelf cannot execute it, wherefore of neceſſity he ought to grant it. Another matter was moved,Recital in Grants of the King. If the Grant of the King to the Earl of Shrewsbury was good, becauſe in the Grant to Verney of the Vnder Office, it is not recited according to the Statute of 6 H. 8. cap. 9. As 20 Aſſ. 6. the King ſeized of the Honor of Pickering, to which a Forreſt was appendant: The Bailywick of which Forreſt he granted in Fee rendring Rent, and afterwards he granted the Honor with the Appurtenances, and afterwards the Baily committed a forfeiture, and the ſame was found in Eyre, for which the Office of Bailywick was forfeited; the Grantee of the Honor ſeized it; yet it was holden that the King ſhould have the Rent: And here in this Caſe, the Earl of Shrewsbury ſhall have this Office in his power to grant it, and ſo much the rather, for that it was granted but for life.

Mich. 32 Eliz. In the Kings Bench. LXVI. Conies Caſe.

Roll. Abrig. 894. Sale of Goods by the Sheriff upon Execution, where good, where not.IN Debt; It was holden, that if the Sheriff upon the Fieri facias makes ſale of the Goods of the Party, and afterwards doth not return his Writ, yet the Sale is good: The Caſe went further: That upon the Fieri facias, the Sheriff returned, That he had ſeized Goods of the Party to ſuch a value, Sed non invenit Emptores, and afterwards before ſale of them, he is diſcharged, and afterwards a Diſtringas iſſued to the new Sheriff, to cauſe the ancient Sheriff to ſell the ſaid Goods; who did ſo: It was holden, that the ſaid ſale of them was void, for the new Sheriff ought to have ſold them: Vide 34 H. 6. 36. A Diſtringas to the old Sheriff to ſell and deliver the Goods to the new Sheriff.

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

NOte, by Dyer and Manwood, A. leaſeth to B for years,Remainder where void. the remainder to the right Heirs of the ſaid B. and makes Livery. That the remainder is void, becauſe there is not any perſon in eſſe, who can take preſently by the Livery, and every Livery ought to have its operation preſently: But where a Leaſe is made to B. for life, the remainder to his right Heirs, there he hath a Fee executed; and it ſhall not be in Abeyance, for there he takes the Freehold by the Livery.

Mich. 19 Eliz. In the Common Pleas. LXVIII. Hindes Caſe.

UPon an Habeas Corpus for one Hinde, Habeas Corpus. the Warden of the Fleet returned, That Hinde was committed to the ſaid Priſon by the commandment of the Commiſſioners in Cauſes Eccleſiaſtical. It was holden, that the Warden in his return,Cauſe of commitment, where muſt be returned, where not. ought to certifie the cauſe for which he was committed; and then upon the return the Court ought to examine the cauſe if it be ſufficient or not. But if one be committed to Priſon, by the commandment of the Queens Privy Council, there the cauſe needs not to be ſhewed in the return, becauſe it may concern the ſtate of the Realm, which ought not to be publiſhed.

LXIX. Hil. 31 Eliz. In the Common Pleas.

IN a Writ of Dower the Demandant recovered by default; Whereupon a Writ iſſued to Enquire, if the Husband died ſeiſed, and of the damages, and the Sheriff took an Enqueſt of Office, by which it was found, that the Baron did not die ſeiſed, prout eis conſtare poterit, and that Inquiſition was returned by the Sheriff, and filed: It was moved,Return of the Sheriff, where void. That the ſaid Inquiſition and Office was not good, for the Office ought to find expreſly, that the Husband died ſeiſed, or not; and not doubtfully as it is here, prout eis conſtare poterit; and for that cauſe the Award of the Court was, That the return ſhould be taken off the File, becauſe it was inſufficient, and a new Writ was awarded.

Mich. 19 Eliz. In the Common Pleas. LXX. The Lord St. John and Sir John Grays Caſe.

Grants of Omnia bona, by an Executor, what paſſeth. NOte, by Dyer and Manwood, upon an Evidence unto a Iury, in Debt, brought againſt the Defendant, as Executor of his own wrong: That if an Executor gives omnia bona ſua, the Goods which he hath as Executor ſhall not paſs, which vide 10 E. 4. 1. by Danby; But the contrary of that was holden by Wray Chief Iuſtice of the Kings Bench: And Plowden in the Caſe of Bracebridge, 18 Eliz. and they ſaid that the ſaid Caſe of 10 E. 4. was not Law; for by ſuch grant made by Executors the Goods of the Teſtator ſhould paſs.

Mich. 18 Eliz. In the Common Pleas. LXXI. Taylors Caſe.

Outlawry, how to be avoided. TAylor was Outlawed in debt, where a Superſedeas of Record was delivered to the Sheriff before the awarding of the Exigent: It was holden, that the Party ſhould avoid the ſame by Plea: Then it was moved, if the Plea ſhould be pleaded by Attorney, or in Perſon, to which it was ſaid by Manwood Iuſtice, that where Matter in Fact is pleaded in avoiding of an Outlawry, it ought to be pleaded in perſon; but a matter of Record might be by Attorney. And ſo it was ſaid by Ford Prothonotary, it was agreed in Sir Tho. Chamberlains Caſe, 7 Eliz. and ſo it was agreed in the Principal Caſe.

18 Eliz. In the Kings Bench. LXXII. Bettuans Caſe.

IN Ejectione firmae. The Caſe was, A Fine was levied to Cook and three others; and by an Indenture between the Parties to the Fine it was declared, that the ſaid Fine was levied ea intentione, That the Conuſees ſhould make an Eſtate of the ſaid Land to ſuch a perſon, which the Conuſor ſhould name, and in the end of the ſaid Indenture was a Proviſo, that the Conuſees ſhould not be ſeized to any other uſe, but to that which was ſpecified before, and that the Conuſees ſhould not incumber the ſaid Lands. And the Opinion of all the Iuſtices of the Kings Bench was,Fines levied to uſes. That upon the ſaid Indenture, the Conuſees are ſeized to their own uſe until the Conuſor hath made nomination; and if he dieth without any nomination, then the uſe ſhould veſt in his Heir: It was further given in Evidence, that the Conuſor named the ſaid Cook one of the Conuſees, and willed that the other three Conuſees ſhould releaſe to him. Gawdy Iuſtice held, That that by nomination, the uſe did veſt in Cook, for he ſaid, it had been adjudged, that where before the Statute of 27 H. 8. One infeoffed divers perſons to his uſe;Feoffment to Uſes. and the Feoffor willed that his Feoffees ſhould make eſtate to ſuch perſon as his Son and Heir ſhould name, and died; the Son and Heir named one of the Feoffees; that the ſame was a good nomination, &c. Wray and Jefferies to the contrary; for after this releaſe Cook is in the whole by the Conuſor, and not by his Co-Feoffees, and by this limitation the Conuſor ought to name ſuch a perſon which ought to take the eſtate: and ſo cannot one Ioyntenant from his Companion, &c. And alſo the words are ſo that they four ſhall take the eſtate.

14 Eliz. In the Kings Bench. LXXIII. The Biſhop of Rocheſters Caſe.

IN Ejectione firmae the Caſe upon Evidence was,Grant of a Reverſion by a Biſhop. Attornment. the Biſhop of Rocheſter, 4 E. 6. made a leaſe for years to B. rendring rent, and afterwards granted the Reverſion to C. for 99 years, rendring the ancient rent, Habend. from the day of the Leaſe without impeachment of waſte, which Grant was confirmed by the Dean and Chapter: But B. the Leſſee did not attorn; and in default of Attornment it was holden by the whole Court, that the Leaſe was void, for it is made by way of Grant of the Reverſion: But by Catlin, 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 then in his Leaſe but 8 years to come, but they could not agree upon the price: And the Iuſtices conceived that that was an Attornment, becauſe he had admitted the ſaid C to have power to make 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. Bromely Solicitor,Attornment. the ſame is no Attornment being ſpoken to a ſtranger, Barham contrary, becauſe he was preſent: It was holden by the whole Court that it was a good Attornment: But if the Attornment was not before the Biſhop was tranſlated to Wincheſter the Leaſe ſhould be void; and although the confirmation of the Dean & Chapter was before the Attornment, ſo as no eſtate was veſted in C yet it was good enough: for the aſſent of the Dean and Chapter is ſufficient, be it before or after, by Catlin, Southcoat, and Whiddar Iuſtices, but Wray held the contrary.

Paſc. 26 Eliz. In the Kings Bench. LXXIV. Ruſſels Caſe.

Execution, where not good upon a Capias without a Scire Facias. RUſſel was condemned in an Action of Debt, and after the year and day, the Plaintiff ſued a Capias ad Satisfaciend. againſt him, and by force thereof he was taken, and committed to the Marſhal, as in Execution: It was the Opinion of the Iuſtices that it was a void Execution, and not only voidable by Error, and therefore the Defendant was diſcharged; for it is not any Execution at all; and the Plaintiff may have a Scire facias when he pleaſeth.

Paſc. 26 Eliz. In the Kings Bench. LXXV. Bluet and Cooks Caſe.

Action for Words.IN an Action upon the Caſe, the Plaintiff declared for ſcandalous words; viz. Lambert. is a Thief, and Bluèt innuendo the Plaintiff, is his Partaker. It was the Opinion of the whole Court that the words were not actionable, becauſe they were too general, for it may be that the Plaintiff is his Partaker in other Matters. But if the words had been. That Bluet, knowing Lambert to be a Thief, was his Partaker, there the Action would have lain. Iudgment was given againſt the Plaintiff.

Trin. 33 Eliz. In the Kings Bench. LXXVI. Hunt and Gonnels Caſe.

Bail. HUnt recovered in Debt againſt Gonnel, and procured againſt him a Capias ad Satisfaciend. upon which Non eſt inventus is returned,Execution, but the Writ is not filed. Hunt ſued a Capias againſt the Mainpernors, who are taken in Execution: It was the Opinion of the Iuſtices, that they ſhould avoid this Execution by Error, and not by Plea or Surmiſe, &c. But if the Capias returned againſt Gonnel had been filed, and after imbezelled. Quaere of the Error, for the Court conceived that the matter ſhall be examined, but Quaere to what intent. Wray ſaid to puniſh the Deceit, but not to maintain the Execution againſt the Mainpernors.

Trin. 26 Eliz. In the Kings Bench, LXXVII. Saer and Blands Caſe.

SAer Parſon of the Church of D. libelled in the Spiritual Court againſt Bland for Tythes; Bland came to the Kings Bench and ſhewed, that within the ſaid Pariſh of D. there is a Hamlet in which the ſaid Bland inhabited, and the ſaid Inhabitants within the ſaid Hamlet, time out of mind, had had a Chappel of Eaſe within the ſaid Hamlet, becauſe the ſaid Hamlet was diſtant from the Church of the ſaid Pariſh, and with part of their Tythes have found a Clark to do Divine Service within the ſaid Chappel, and alſo had paid a certain ſum of money to Saer, Prohibition. Preſcription. and his Predeceſſors for all manner of Tythes; and prayed a Prohibition, and had it; and it was holden a good Preſcription.

LXXVIII. Paſc. 29 Eliz. In the Common Pleas.

A Copyholder with licence of the Lord made a Leaſe for years and afterwards ſurrendred the Reverſion with the rent to the uſe of a Stranger, who is admitted accordingly.Attornment. It was moved if there needed any Attornment: It was the opinion of Rhodes and Windham Iuſtices, that the Surrender and Admittance ut ſupra, are in the nature of an Attornment, and ſo amount to an Attornment, or at leaſt ſupply the want of it.

Mich. 29 Eliz. In the Star-Chamber. LXXIX. The Lady Newman and Shyriffes Caſe.

THe Lady Newman, Siſter of James Wingfield, 3 Leon. 170. lately deceaſed, exhibited a Bill of Complaint in the Star Chamber, againſt one Shyriffe dwelling in Dublin in Ireland, and two others, complaining, That the ſaid Shyriffe had forged a Deed, purporting that the ſaid James had by that Deed given unto him all his Goods, and alſo that the ſaid James had by that Deed aſſigned to the ſaid Shyriffe a Leaſe for years of Lands in Ireland, and alſo the ſaid Shyriffe had procured the two other Defendants to depoſe upon their Oaths before the Town-Clerk of London, That the ſaid Deed was Sealed and Delivered by the ſaid James as his Deed. It was moved by the Counſel of the Defendant, that theſe Matters of Forgery were not within the Statute of 5 Eliz. nor alſo the Perjury, or the procurement thereof, upon which the Lords of the Council there,Upon the Statute of 5 Eliz. of Perjury. referred the conſideration of the ſaid Statute to both the Chief Iuſtices: who at the next day in Court declared their Opinions upon the ſaid Matters, i. e That the ſaid Matters did not extend to the Forgery of a Deed containing a gift of Chattels perſonals, which ſee clearly by the Statute which as to that purpoſe extends but to Obligations, Bills Obligatorie, Acquittances, Releaſes or other Diſcharges, and that alſo a Deed of Aſſignment of a Leaſe of Lands in Ireland is not within the ſaid Statute; and alſo they were of opinion, that the ſaid Perjury, and the procurement of it was not puniſhable by the ſaid Statute, becauſe the Oath was taken coram non Judice, for the Town-Clerk of London could not take an Oath in ſuch a caſe,Note. no more than a private perſon. But becauſe that the Bill in the percloſe and concluſion of it was, (contrary to the Laws and Statutes of this Realm) the two Chief Iuſtices were of Opinion, That the ſaid Court might puniſh theſe Offences as Miſdemeanors at the Common Law, but not according to the Statute; and afterwards Shyriffe was fined, and by Order of the Court to ſtand upon the Pillory.

Mich. 29 Eliz. In the Exchequer Chamber. LXXX. The Queen and Lord Vauxes Caſe.

Bills.IN the Exchequer Chamber before the Chancellor, &c. the Lord Vaux brought a Writ of Error upon a Iudgment given againſt him in the Court of Exchequer, and aſſigned for Error that a Bill was exhibited againſt him, that the Lord Vaux had taken certain goods of the Queen at Weſtminſter in the County of Middleſex, and alſo had intruded into the Rectory of Ethelborough in the County of Northampton; whereas the Queen ought to have brought ſeveral Bills being for ſeveral cauſes, ariſing within ſeveral Counties. But it was reſolved by the whole Court, That the Bill of the Queen was good enough, and here is no miſchief; for if the Defendant will plead Not Guilty, two ſeveral Venire Facias ſhall be awarded, one into Middleſex, the other into the County of Northampton.

Mich. 27 Eliz. In the Common Pleas. LXXXI. Owen and Morgans Caſe.

GEorge Owen brought a Scire Facias againſt Morgan to have Execution of a Fine levied 8 Eliz. by which Fine the land was given to the Conuſee and his heirs; the Conuſee rendred the ſame to the husband and wife, and to the heirs of the body of the huſband, (Note that the husband was the Conuſor) the remainder in Fee to the now Demandant; and note that the Writ of Covenant was between the Conuſee Plaintiff and the husband Deforceant, without naming the wife. And afterwards the husband ſuffered a common Recovery without naming of the wife;Common Recovery. the huſhand and wife died without Iſſue, and now Owen, to whom the remainder was limited by the Fine, brought a Scire Facias; in bar of which the Recovery was pleaded. It was argued by Shuttleworth Serjeant, That the ſaid Recovery had againſt the huſband was a good bar,Feme not party to the Writ of Covenant not bound by a Recovery. and ſhould bar the remainder; and the wife ought not to be named in, or party to the Recovery, for that nothing accrued to her by the Fine, becauſe ſhe was not party to the Writ of Covenant, and to the Conuſans, vide 32 H. 8. Fines 108. None can take by the Fine but thoſe who are named in the Writ of Covenant, but every Stranger may take by way of Remainder, Vide etiam 7 E. 3. Br. Fines 114. 6 E. 3. Fitz. Fines 117. 7 E. 3. Fitz. Scire Facias 136. It is ſaid by Herle, if ſuch a Fine ut ſupra be taken, it is good as long as it is in force.

LXXXII. Sir Richard Lee and Arnolds Caſe.Poſt 93.

SIr Richard Lee Kt. ſeized of three Manors, made a leaſe of them to Sir Nicholas Arnold for certain years, reſerving for the one Manor 5 l. and for the other Manor 10 l. and for the third Manor 10 l. upon condition that if the ſaid rents, or any of them, or any part, &c. be behind, a re-entry into all the Manors; and afterwards he bargained and ſold the reverſion of one of the ſaid Manors to William Winter in Fee: and afterwards by Deed indented and inrolled, bargained and ſold the two other Manors, and for the rent of one of the ſaid Manors, the Vendee did re-enter into all the Manors. Manwood, Here are ſeveral reſervations,Reſervation of Rents upon a joynt Leaſe. ſeveral rents, and ſeveral leaſes; for although that the words are joynt, yet by conſtruction they are become ſeveral; as Land given to an Abbot and a Secular man, although here be joynt words, yet they are Tenants in Common, Litt. 296. And if I ſell to you two Horſes, the one for 5 l. and the other for 5 l. here are two ſeveral contracts; the Parties to whom theſe reverſions are aſſured, ut ſupra, are Aſſignees within the Statute of 32 H. 8. by which it is enacted, that Aſſignees may take advantage of Conditions; for ſuch an Aſſignee is not meerly in by act of law, as the Lord by Eſcheat, and he is not ſuch an Aſſignee; but is in by conveyance: The Leſſor enters upon his Leſſee,Aſſigns. and makes his Feoffment, and the Leſſee re-enters, now the Feoffee is an Aſſignee; and this condition is deſtroyed in part and continued in part:Condition deſtroyed in part good in part. If one hath Common in the land of another for 20 beaſts, and releaſes his Common for 10 beaſts, the Common for the reſidue remains; but if he purchaſeth part of the land in which he hath Common, the whole Common is deſtroyed: A Feoffment to two with warranty, and one of them releaſes the warranty, all the warranty is gone: As to the condition for as much as it is not collateral, but incident to the reverſion, it may be ſevered and is of the ſame nature as the rent and reverſion. A man poſſeſſed of lands for 20 years, and ſeized of other lands in Fee,Conditions divided. leaſeth all the land for 10 years, reſerving rent, with clauſe of re-entry, and dieth, now the Heir hath a reverſion for the land in fee, and the executor for the other land, & ſo the condition is divided according to the reverſion; ſo if lands were given to one in general tail and others in ſpecial tail & he thereof makes a leaſe rendring rent, and dieth, having ſeveral Iſſues inheritable to each tail, now the condition ſhall go according to the rent: and he conceived, that the Grantee of parcel of the reverſion is an Aſſignee within the ſaid Statute,Grantee of parcel of the Reverſion is an Aſſignee within 32 H. 8. Of Conditions. as if a Leaſe for years be made rendring rent, with clauſe of re-entry. The Leſſor grants the Reverſion for life, ſuch a Grantee is an Aſſignee within the ſaid Statute. Jefferies, The Condition is gone: A. leaſeth two Acres for years, rendring rent with clauſe of re-entry: the Leſſor accepts a ſurrender of one Acre, the whole Condition is gone, but the rent ſhall be apportioned. A Parſon leaſeth land, whereof he is ſeized in his own right, and land whereof he is ſeized in the right of his Church, for years rendring rent, with clauſe of re-entry, and dieth, the rent ſhall go according to his reſpective capacity and the Condition divided:Condition ap •••••• ned. So if part of the land ſo demiſed be evicted, the Rent ſhall be apportioned, and the Condition alſo: And he ſaid that the Bargainee is not an Aſſignee within the Statute. Barham, If the Reſervation doth not make the leaſe ſeveral, yet it ſhall make the Reverſion ſeveral, &c. Mead, 6 Eliz. The Court was moved in this Caſe: A. leaſed for years rendring rent, with clauſe of re-entry, and afterwards became bound to another by Recognizance the Recognizee extended the moiety of the rent and Reverſion in Execution;Condition ſuſpended. and the clear Opinion of the Court was, that the Condition was ſuſpended: If A. let lands for years rendring rent, with clauſe of re-entry to a Man and to a Feme ſole, and afterwards the Leſſor intermarries with the Feme, the Condition is ſuſpended. Mounſon Iuſtice, The Demiſe is joynt, although that the Reſervation be ſeveral. Ceſtuy que uſe is ſeized of an Acre in poſſeſſion, and of another in reverſion, and makes a Leaſe for years of both rendring rent,Severance. here are ſeveral rents. 13 E. 3. A. ſeized of two Acres of lands before the Statute of Weſtminſter 3. made a Feoffment thereof to hold the one Acre by Knight Service and the other in Socage; the Tenancy in ſuch caſe is ſeveral, 9 Aſſ. 24. a leaſe is made of a Mill. and of a Wood, rendring for the Mill 10s and for the Wood 20s. theſe are ſeveral rents: and ſo here they are ſeveral rents and ſeveral conditions: Two Tenants in Common make a leaſe for years rendring rent upon clauſe of re-entry, the condition is ſeveral according to the reverſion, for joynt words in the Letter have ſometimes as the matter requires conſtructions in the ſeveralty. As A and B covenant by Indenture, and are reciprocally bound the one to the other to perform all Covenants contained in the ſaid Indenture, the ſame is to be conſtrued ſuch Covenants, which on the part of A. are to be performed, and ſo of the other part B. And he conceived that by the diſtracting of the reverſion the condition was gone: a condition by an act in law may be divided but not by the act of the party.Conditions by act in Law divided not by act of the Party. As a man makes a leaſe for years rendring rent, with clauſe of re-entry, takes a Wife and dyeth; The Wife recovers the third part of the land deviſed for her Dower, now that third part is diſcharged of the condition during the eſtate in Dower, but the reſidue is ſubject to the condition; and vide F. N. B. 21 the Heir at Common Law ſhall have a writ of Error for his part; and the Heir in Borough Engliſh for his part: two Ioyntenants make a leaſe for life upon condition and one releaſeth the condition,Statute of 32 H. 8. of Conditions taken by Equity. the ſame barred the condition. And he conceived that the Bargainee is an Aſſignee: for the Statute of 32 H. 8. ſhall be taken by Equity, &c. As if a man leaſeth lands for years to begin at Michaelmas next, and before Michaelmas he makes a Feoffment, and at Mich. the Leſſee enters, the Feoffee is an Aſſignee within the Statute: two Ioyntenants make a leaſe for years rendring rent with clauſe of re-entry, and the one releaſeth to his companion, he is an Aſſignee within the Statute. Manwood, He is an Aſſignee and in by the Bargainor; The words of the Statute of 32 H. 8. are, Grantees or Aſſignees to or by any Perſon or Perſons, and here the Bargainee is an Aſſignee to the Bargainor as to the uſe; and for the poſſeſſion he is an Aſſignee by him: He who is in by a common recovery is not an Aſſignee, although the recovery was to his uſe, for the Writ diſaffirms his poſſeſſion: if Tenant for llfe be diſſeiſed and he in the reverſion confirms the eſtate of the Diſſeiſor, and the Tenant for life re-enters, the Diſſeiſor is now an Aſſignee, but otherwiſe it is if he in the reverſion doth releaſe to the Diſſeiſor: and he conceived, that the Leſſor ſhould recover part of the land in an action of Waſte, or enter in part of the land for a forfeiture, for an alienation in fee, that the condition remains. Harper, Several reſervations do not make ſeveral leaſes, for the reſervation is not of the eſſence of the leaſe, for it is good without any reſervation: and whereas it hath been ſaid, that a Leaſe is a contract, I ſay,Difference between a Reſervation and a Contract. that there is a great diverſity between a reſervation and a contract: for if I ſell to you a Horſe for 40s. and afterwards I take this Horſe out of your poſſeſſion; yet I ſhall have an action of Debt for the 40 s. But if I leaſe land to you reſerving rent, and afterwards enter into parcel of the land demiſed, I ſhall not have the rent: and if I leaſe two Acres for years with ſeveral reſervations, I ſhall have but one action of waſte, but ſeveral Avowries according to the ſeveral reſervations. And here if any part of any of the ſaid rents be behind, the party may re-enter into the whole, therefore the leaſe is but una & eadem. And I conceive, that the Aſſignee of the Aſſignee is by the Statute to take advantage of the condition even to the twentieth degree, as a warranty to one of his Heirs and Aſſigns, extendeth to the twentieth Aſſignee. But here in our caſe, he is not ſuch an Aſſignee that ſhall take advantage, &c. for he is in by the Statute, ſcil. in the Poſt, but not in the Per, and here the Bargainee hath but an uſe by the act of the Party, and the poſſeſſion of the Statute of 27 H. 8. But admitting that he is an Aſſignee, yet he is an Aſſignee but of part, and therefore ſhall not have advantage,Condition ſuſpended in part is ſuſpended in all. &c. When a condition is ſuſpended in part, it is ſuſpended in all. A. leaſeth lands for years upon condition, and afterwards the leſſor confirms his Eſtate in part for life, the condition is gone. Dyer, The Leaſe is one and entire, although there be ſeveral reſervations, for here are not ſeveral capacities, nor ſeveral intereſts. 42 Aſſ. Two Ioyntenants leaſe for life, rendring rent to one of them, yet the rent and reverſion ſhall be to both of them; but if it be by Deed indented, the rent ſhall go to one only, according to the literal reſervation, Vide Litt. 80. 346. But if the Leaſe had been made by ſeveral Limitations, as Habendum one Manor for 20 s. and the other Manor for 10s. then the Leaſe and the Reverſion had been ſeveral; but here the rent ſhall not rule the reverſion, but the reverſion the rent, and the rent ſhall be of the ſame nature as the reverſion. Tenant for life makes a Feoffment in Fee upon condition, and re-enters for the condition broken, now by that re-entry the Freehold is reduced to the Leſſee for life, and the Fee unto the Leſſor; but the Forfeiture remains. Two Ioyntenants, one of them makes a Feoffment in Fee of his Moiety upon condition, and for the breach of the condition re-enters, the Ioynt Eſtate is revived: And he conceived that the Grantee of part of the Eſtate, or part of the Land ſhould not take advantage of the condition; and he ſaid that the Bargainor is an Aſſignee within the Statute: If Tenant in Tail makes a Leaſe for years, and afterwards bargains and ſells the reverſion, the Vendee hath a Fee ſimple determinable, and may enter for the condition broken: If a reverſion be granted to two, and to the Heirs of one of them, they are Aſſignees within the Statute, and if he, who hath but an eſtate for life, ſurviveth, he alſo is an Aſſignee, for the entire reverſion paſſeth out of the Grantor, and that is my Rule. Iudgment was given againſt the Re-entry.

LXXXIII. Paſc. 30 Eliz. In the Kings Bench.

Surrender.LEſſee for 21 years took a Leaſe of the ſame Lands for 40 years to begin immediately after the death of J. S. It was holden in this caſe, that the ſame was not any preſent Surrender of the firſt term; but if J. S. dye within the term, then it is a Surrender, for it may be that J. S. ſhall ſurvive the firſt term.

Paſc. 30 Eliz. In the Kings Bench. LXXXIV. Anderſon and Heywoods Caſe.

Copyholder. A Copyholder of an Inheritance of a Manor which is in the hands of the King is ouſted of his Copyhold. It was holden that he hath not gained any Eſtate, ſo as he may make a leaſe for years, upon which the Leſſee may maintain Ejectione firmae; but he hath but a poſſeſſion againſt all Strangers: And it was holden in this caſe, that if a Copyholder dyeth,1 Leon. 100. Rumny and Eves. his heir within age, he is not bound to come to any Court during his Nonage, to pray admittance, or to tender his Fine; alſo if the death of his Anceſtor be not preſented, nor proclamations made, he is not at any miſchief, although he be at full age.

Paſc. 30 Eliz. In the Kings Bench. LXXXV. Cook and Songates Caſe.

IN Aſſumpſit, Aſſumpſit. the Plaintiff declared whereas Lis & controverſia had been moved between the Plaintiff Lord of the Manor, &c. and the Defendant, claiming certain Lands parcel of the ſaid Manor, to hold the ſame by Copy, &c. And both the ſaid parties ſubmitted themſelves to the Iudgment and Arbitrement of Mr. Godfrey, a man learned in the Law. concerning the ſaid Land, and the title of the Defendant to the ſame: The Defendant in conſideration that the Plaintiff promiſed to the Defendant, that if the ſaid Mr. Godfrey ſhould adjudge the ſaid Copy to be good and ſufficient for the title of the Defendant, that then he would ſuffer the ſaid Defendant to enjoy the ſaid Land accordingly without moleſtation, the Defendant reciprocally promiſed to the Plaintiff that if the ſaid Mr. Godfrey ſhould adjudge the ſaid Copy not to be ſufficient to maintain the title of the Defendant, that then he would deliver and ſurrender the poſſeſſion of the Land to the Plaintiff without any Suit. And ſhewed further that the ſaid Mr. Godfrey did award the ſaid Copy utterly to be inſufficient, &c. Yet the Defendant continued the poſſeſſion of the ſaid Land: It was moved that the ſame was not a good and ſufficient conſideration to ground an Aſſumpſit. But Gawdy Iuſtice, ſaid it was a good and ſufficient conſideration, becauſe it was to avoid Controverſies and Suits: And afterwards Iudgment was given for the Plaintiff.

Trin. 26 Eliz. In the Kings Bench, LXXXVI. Taylors Caſe.

IN Aſſumpſit, the Caſe was:Aſſumpſit. That the Defendant promiſed to carry certain Apples for the Plaintiff by Boat from Greenwich, in the County of Kent, to London; and the Apples being in the Boat, the Boat in which they were, by a great and violent Tempeſt was ſunk in the River of Thames, ſo as the ſaid Apples periſhed, &c. It was holden to be no Plea in diſcharge of the Aſſumpſit, by which the Plaintiff had ſubjected himſelf to all adventures.

LXXXVII. Trin. 26 Eliz. In the Kings Bench.

Deviſe. A. Seized of Lands in Fee, and having Iſſue two Sons, Richard and Gilbert, by his Will willed, That if his Son Richard dye before Iſſue, ſo that the Land deſcend to my Son Gilbert, then I will that my Overſeers ſhall have the Government of my Lands and of my Son Gilbert. Richard took a wife and dyed, ſhe being young with Child with a Daughter, the Deviſor died, the Daughter was born. It was adjudged in this Caſe, that by this Deviſe the Daughter was excluded from the Inheritance, and that Gilbert ſhould have the Land.

Trin. 32 Eliz. In the Kings Bench. LXXXVIII. Lukes Caſe.

LUke Eſq of Tedcaſter, was Indicted upon the Statute of 13 Eliz. cap 8. for being a Broker in a Vſurious Contract; for which he encurred a Praemunire. Who pleaded Not Guilty, upon which they were at Iſſue, and at the day of the Return of the Diſtringas, the Iurors appeared, and the ſame day that the Iury was to be taken, Popham Attorney General ſent for the Diſtringas, and for certain cauſes for the Queen, would not proceed. Note that the Attorney was informed, that the Iury was partial. It was moved by Cook that the Attorney could not ſtay the Proceedings, the Writ being returned, and the Iury appearing, he could not ſtay the Tryal, for no Preſident is thereof. Popham, The Entry ſhall be in this caſe. Vicecomes non miſit breve. Cook, That is falſe, and the Sheriff is ſworn to make a true return; but by conſent of the Parties, ſuch a thing may be done, for Conſenſus tollit Errorem, Quaere.

33 Eliz. In the Exchequer. LXXXIX. The Queen and Painters Caſe.

Accompt of the King againſt a Stranger.SIr William Pelham was Surveyor of the Ordnance, and delivered the money of the King to Painter, Clerk of the Ordnance. It was holden in this caſe, That for the ſaid money the Queen might have Accompt againſt Painter, although he wanted a privity, which cannot be ſo in caſe of a common perſon; for if any Receiver make one his Deputy, I ſhall not have an Accompt againſt him. Popham Attorney General, If one of the Exchequer lend unto another 500 l. of the Queens money, and takes a Bond for it in his own name, yet the Queen ſhall have an Accompt againſt the Borrower.

Mich. 29 Eliz. In the Exchequer. XC. Pelhams Caſe.

IN the Exchequer Chamber, before the Chancellor, Treaſurer,Savile Rep 43. Grant of Office of Sheriff. and Barons there, in the Caſe of Pelham, the Caſe was, That the Queen had granted by her Letters Patents, that Pelham ſhould not be Bailiff, Conſtable, nor other Officer or Miniſter, Licet eligatur; yet it was holden that the Queen might make him Sheriff for that Grant doth not extend to Officers Royal, as Grants of Amercements do not extend to Amercements Royal; and alſo the Office of Sheriff doth not lye in Election; but if the words had been, Licet eligatur per nos, then it ſhould have been otherwiſe: And ſuch was the Opinion of Bromley then Lord Chancellor.

Trin. 19 Eliz. In the Kings Bench, XCI. Godbolts Caſe.

IN the Caſe of one Godbolt, It was agreed,Sales▪ that the ſale of a Bailywick of a Hundred, was not within the Statute of 5 E. 6. cap. 16. For ſuch an Office doth not concern the Adminiſtration of Iuſtice; nor is it an Office of Truſt.

XCII. In Temps Eliz.

A. Granted to B. a Rent-charge out of his Lands, to begin when J. S. died without Iſſue of his Body, J. S. dyes having Iſſue, which Iſſue dyes without Iſſue. Dyer held that the Grant ſhall not take effect, for J. S. at the time of his death had Iſſue, and therefore from thence the Grant ſhall not begin, and if not then, then not at all. And Manwood ſaid, that if the words had been, to begin when J. S. is dead without Iſſue of his Body then ſuch a Grant ſhall take effect when the Iſſue of J. S. dies without Iſſue, &c. If Donee in Tail hath Iſſue which dies without Iſſue, the Formedon in the Reverter ſhall ſuppoſe that the Donee himſelf died without Iſſue, for there is an Intereſt,Difference between an Intereſt and a Limitation. and there is a diverſity between an Intereſt and a Limitation; for if I give Land between A. and B. for term of their lives, if any of them dye, the Survivor ſhall hold the whole; but if I give Lands to A. for the lives of B. and C. now if B. and C dye, the whole Eſtate is determined, becauſe it is but a Limitation, and B. and C. have not any Intereſt. Vide to this purpoſe 34 Eliz. Brudnels Caſe in Cook 5. p. 9.

XCIII. Temps Roign Eliz. In the Common Pleas.

A. Seized of a Manor, leaſed the ſame for years, rendring rent, with clauſe of re-entry; and afterwards levied a Fine Sur Conuſans de droit, &c. to the uſe of himſelf and his Heirs the rent being demanded is behind. Dyer, A. cannot re-enter, for although the rent in right paſſeth without Attornment, yet he is without remedy for the ſame without Attornment, and it would be hard without Attornment to re-enter; It was here moved further, if the Conuſor be an 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 entries: 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 claims could not: And in the Caſe at Bar, the Conuſee himſelf could not; but the Conuſor being Ceſtuy que uſe, who is in by Act of Law, ſhall Avow, and re-enter without Attornment, for the Conuſor is in by the Statute of 20 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 dyeth, the Son cannot re-enter, for the rent doth not belong unto him; and therefore in the Caſe at Bar, the Conuſor cannot Avow for the rent before Attornment, therefore not re-enter: And in Caſe of Bargain and Sale, the Bargainee is Aſſignee within the Statute, but not the Conuſor in this Caſe.

Temps Roign Eliz. XCIV. 15 Eliz. Sir Francis Leak and Sir Walter Hollis.

Upon Attainder of Treaſon, who ſhall ſeize the Goods for the Queen.AT the Aſſizes, the Opinion of Dyer and Stamford was demanded upon this matter: One ſeized of Lands and Tenements, and poſſeſſed of Goods within the Duchy of Lancaſter, was Attainted of High Treaſon, and a great Queſtion aroſe between Sir Francis Lake Kt. Bailiff of the Duchy, and Sir Walter Hollis Sheriff, which of them ought to ſeize for the Queen; and their Opinion then was, that the ſame did appertain to the Office of the Sheriff, if in the Patent of the Sheriff there were not ſpecial words to the contrary.

XCV. 15 Eliz. In the Common Pleas.

TEnant at Will made a Leaſe from year to year,Leaſe by Tenant at Will if a Diſſeiſin. Dyer conceived that it was not a Diſſeiſin but the Leaſe was void; and he ſaid, that the Book of 12 E. 4. 12. was not Law. For he who diſſeiſeth a man ought to claim Inheritance in the land, whereof the diſſeiſin is done. Harper conceived that the ſaid Book of 12 E 4. 12. was good Law, for a Leaſe at Will is a Leaſe at the will of both parties, and therefore when the Leſſee makes a Leaſe for years, his will is determined, and he will not hold at will. Manwood agreed with Dyer; for if Tenant at Will leaſe for years, rendring rent, before that the Leſſee for years entreth, the Tenant at Will ſhall not have any rent for it was not a perfect contract; otherwiſe it is where a man ſeized of Lands leaſeth the ſame, ut ſupra. If one entreth into my land, and occupieth the ſame of his own head, claiming to hold the ſame at my will, and afterwards I demand of him a certain rent for the occupation of my land, he is now my Tenant at Will; which all the Iuſtices granted.

Mich. 30 Eliz. In the Kings Bench. XCVI. Cutter and Dixwels Caſe.

ACtion upon the Caſe, for that the Defendant exhibited a Bill to the Iuſtices of Peace againſt the Plaintiff, containing and complaining, That the Plaintiff is an enemy to all quietneſs, ſeeking by all means to diſquiet his neighbours, and hath uſed himſelf as a lawleſs perſon, and having Proceſs to ſerve upon one in the Pariſh, (ſcil. J. S.) did keep the Proceſs, and would not ſerve it but on the Sunday in the time of divine Service, not having regard to her Majeſties laws or the quiet of his neighbors. Vpon which Bill the Iuſtices to whom it was exhibited awarded Proceſs againſt the Plaintiff to find Sureties for his good behaviour, by virtue of which he was taken and impriſoned. It was the Opinion of all the Iuſtices in this Caſe, that upon this Matter, an Action upon the Caſe would not lie.

Mich. 27 Eliz. In the Kings Bench. XCVII. Baſpoles Caſe.

THe Father ſeized of Lands is bound in an Obligation,3 Leon. 118. 2 Leon. 10 1. Stiles 148 Deviſe to his Son and Heir. and deviſed his Land to his Wife until his Son ſhall come to the age of 21 years, the remainder to the Son in Fee; and no other Land deſcends to the Son from his Father. It was moved, that the Heir in this caſe at his Election might wave the Deviſe, and take by deſcent, or è contra, Vide 9 E. 4. 18. per Needham. It was the Opinion of Gawdy and Fenner Iuſtices, that the Son ſhould be adjudged in by deſcent: Clench held the contrary.

Mich. 27 Eliz. In the Kings Bench. XCVIII. Onions Caſe.

IN an Action upon the Statute of 5 Eliz. for hunting in his Park, the Statute gives treble damages: It was the Opinion of the Iuſtices, that notwithſtanding that the Statute gives treble damages,Coſts. that the Plaintiff ſhould have Coſts alſo.

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

IN Debt the Plaintiff had Iudgment to recover, and a Scire Facias iſſued againſt the Bail before any Capias iſſued againſt the Principal,Bail. and the Bail was taken; and now they came and ſhewed this matter to the Court, and prayed to be diſcharged. Wray Iuſtice ſaid, They ſhall be put to their writ of Error, for being but Error in Proceſs, we may reverſe our own Iudgment.

C. Mich. 14 Eliz In the Common Pleas.

A Man ſeized of a Paſture, within which are two great Groves and Wood, known by the name of a Wood, leaſed the ſame by Indenture for years, and alſo in the ſame Paſture were certain Hedgrows and Trees there growing ſparſim, & 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 the ſame at all times during the term. Harper ſaid the Hedgrows did not paſs by theſe words, for they are not known by the name of Woods, 14 H. 8. 2. Manwood held the contrary. Mounſon contrary to Manwood for the words of the Grant may be ſupplied by other in it, viz. Woods. Dyer held that theſe Hedgrows ſhould paſs, for the Grant is general. It was further moved, if by theſe words the Leſſee might again cut them &c. or but once. Harper, Manwood and Mounſon, three of the Iuſtices held. That he might cut them but once. But Dyer held the contrary & ſaid 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 taken alſo in the future tenſe: if not that the word tunc be laid, for that is a word of reſtraint. The caſe which was argued in the Chancery, 27 H. 8. where I was preſent, was this, The Prior of St. Johns let 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. And it was doubted if that Proviſo did extend to the Succeſſor; for this word (being) in the preſent tenſe, and yet it was holden by Fitzherbert, that it ſhould be taken in the future tenſe, and ſo to extend to the Succeſſor, but otherwiſe if the words had been (nunc) being.

15 Eliz. In the Common Pleas. CI. Conies Caſe.

A Man ſeized of Lands in Fee deviſed,Deviſes. that his wife ſhould take the profits of his Lands, until Mary his daughter and Heir ſhould come to the age of ſixteen years; and if the ſaid Mary died, that J.S. ſhould be his Heir. Manwood ſaid,Tail. That the daughter, after ſhe had attained the age of ſixteen years, ſhould have the Lands in Tail, for Deviſes ſhall be conſtrued, according to the intereſt of the Deviſor; if they have any certainty or reaſon; but no intent ſhall be taken againſt reaſon and certainty. It is certain the daughter ſhall not have Fee-ſimple, for that ſhould have deſcended to her without any Deviſe; and theſe words (if ſhe dye) cannot be intended a condition, for it is certain that ſhe ſhall dye; but if the words had been, If ſhe dye before the age of ſixteen years, J. S. ſhould be his Heir, that had been a condition; and if the words had been, That after the death of Mary, J. S. ſhould be his Heir: So as the Eſtate Tail remains in the daughter. Mounſon and Harper contrary. And that ſhe ſhall have but for life; Mounſon ſaid, That if Mary had been a Stranger to the Deviſor, ſhe had taken nothing:Deviſee, who ſhall firſt take. And this caſe was put by Barham Serjeant, A man deviſed 100 l. to his youngeſt daughter, and 100 l. to his middle daughter, and 100 l. to his eldeſt daughter, and that all theſe ſums ſhould be levied of the Profits of his Lands, It was holden by the better Opinion, that the youngeſt daughter ſhould be firſt paid, and then the middle, and then the eldeſt daughter, &c. and that he ſaid was Conies Caſe.

CII. 6 Eliz. In the Common Pleas.

A Man made a Leaſe for life, and afterwards made a Leaſe to another for years to begin after the death of the Tenant for life: the Leſſee for years died inteſtate, the Ordinary committed Letters of Adminiſtration to A. the Tenant for life and A. joyned in the Purchaſe of the Fee-ſimple of the Land demiſed; It was holden by the Iuſtices in this Caſe, that the Fee was executed for one Moiety, for the remainder for years,Eſtate executed. was not any impediment to the execution of it. Manwood conceived that the Term was not extinct, for the ſame is not properly a term,Extinguiſhment. but only an Intereſt of a Term, which cannot be ſurrendred. Mounſon, He hath the Term in auter droit as Adminiſtrator, and therefore it cannot be extinct. Dyer, If an Executor hath a Term, and purchaſeth the Fee-ſimple, the Term is determined. A woman Termor for years takes Huſband, who purchaſeth the Fee, the Term is extinct by Manwood, for the Husband hath done an act, which deſtroys the Term, ſcil. the Purchaſe. But if a woman being a Termor, marrieth with him in the Remainder, the Term continueth; for here it is not the act of the Husband, but the act of Law. It was the Opinion of Dyer, Tenants in Common. that in this caſe the Tenant for Life and the Adminiſtrators ſhould be Tenants in Common of the Fee.

CIII. Mich. 17 Eliz. In the Common Pleas.

THe husband is ſeized in right of his wife of certain cuſtomary lands in Fee, and he and his wife, by licence of the Lord make a Leaſe for years by Indenture, rendring rent, have Iſſue two daughters, and the husband dyeth the wife takes another husband, and they have Iſſue a ſon and a daughter, the husband and wife dye, the ſon is admitted to the Reverſion, and dyeth without Iſſue; and by Manwood, that Reverſion ſhall deſcend to all the daughters, notwithſtanding the half blood, for the Eſtate for years which is made by Indenture by licenſe of the Lord is a demiſe, and a Leaſe according to the order of the Common Law, and according to the nature of the demiſe 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 the poſſeſſion of the other, therefore there ſhall be no Poſſeſſio Fratris in this caſe:Poſſeſſo Fratris. But if one had been the Guardian by cuſtom, or the Leaſe had been made by Surrender, there the Siſter of the half blood ſhould not inherit. And Mead ſaid the Caſe of the Guardian had been adjudged. Mounſon agreed: And it was ſaid, that if a Copyhold doth deſcend to the Son, he is not a Copyholder before admittance, but he may take the profits, and puniſh a Treſpaſs before admittance.

CIV. Paſc. 19 Eliz. In the Common Pleas.

A Parſon let his Rectory for three years, and covenanted, that the Leſſee ſhall have and enjoy it during the ſaid term, without expulſion, or any thing done or to be done by the Leſſor, and is alſo bound in an Obligation to the Leſſee to perform the ſaid Covenant.Forfeiture. Quaere. Afterwards for not reading of the Articles he was deprived ipſo facto, by the Statute of 13 Eliz. The Patron preſented another, who being inducted ouſted the Leſſee; wherefore an Action was brought upon the Obligation. It was the Opinion of all the Iuſtices, That this matter is not any cauſe of Action; for the Leſſee was not ouſted by any Act done by the Leſſor, but rather for Non feaſans; and ſo out of the compaſs of the Covenant aforeſaid; as if a man be bound that he ſhall not do any waſte, permiſſive waſte is not within the danger of it.

Paſc. 26 Eliz. In the Common Pleas. CV. King and Cottons Caſe.

IN Ejectione firmae, the Caſe was: Leſſee for years, the Remainder for life, the Remainder in Tail to Leſſee for years, Leſſee for years made a Feoffment in Fee with warranty, and dyed, he in the Remainder for life dyed, the Iſſue in Tail entred, and made a Leaſe to the Plaintiff. It was clearly reſolved by the Court in this Caſe,Entre Congeable. That the entry of the Iſſue in Tail was lawful, notwithſtanding that the diſſeiſin was done to another Eſtate than that which was to be bound by the warranty, ſcil. to the Eſtate for life, Vide 50 E. 3. 12▪ & 13, 46 E. 3. 6. Fitz. Garr. 28.

Paſc. 26 Eliz. In the Common Pleas. CVI. Scot and Scots Caſe.

BArtholomew Scot brought a Writ of Accompt againſt Thomas Scot: Accompt. Thomas Scot ſum' fuit ad reſpondend. Barth. Scot quod reddat ei rationabilem computum ſuum de tempore quo fuit receptor denariorum, &c. And declared quod cum the ſaid Thomas Scot fuit receptor denariorum, &c. & recepiſſet, ſo much by the hands of ſuch a one, &c. Cumque idem Thomas habuiſſet & recepi •• et diverſa bona. and ſhewed what, ad merchandizand. &c. Exception was taken to the Declaration, becauſe the Writ and Declaration is general againſt the Defendant as Receiver, whereas for ſuch goods as the Defendant had received ad merchandizand. he ought to have been charged as Bayliff, Quod Curia conceſſit, Vide Book Entries 19. 46 E. 3. 9. and afterwards the Defendant traverſed ſeverally both the Charges, whereupon ſeveral Iſſues were joyned, and both found for the Plaintiff: And as to the monies, with the Receipt of which he was charged as Receiver, the Plaintiff had Iudgment; and as to the others,Abatement of Writ. which he received ad Merchandizandum, the Writ abated. And it was ſaid by the Court, That the Writ ſhould have abated in the whole, unleſs the ſeveral Iſſues had helped the matter, becauſe the Plaintiff might have had an Action for part in other manner, Vide 9 H. 7. 4. by Brian.

17 Eliz. In the Star-Chamber. CVII. Morgan and Coxes Caſe.

MOrgan exhibited a Bill of Perjury in the Star-Chamber, againſt one Cox, ſetting forth, that whereas he was bound to his good behaviour by Recognizance acknowledged in the Kings bench, and he in diſcharge of the ſaid Recognizance had obtained a Writ De Fama & geſtu, to enquire of his Converſation, and therefore at the Seſſions in the County of Devon, where the ſaid Morgan was dwelling, the grand Iury charged with the ſaid Matter, the ſaid Cox gave Evidence to the ſaid grand Iury in maintenance and continuance of the ſaid Recognizance, and upon the Evidence given by Cox the ſaid Bill was conceived. It was moved by the Counſel of the Defendant, That that Bill upon the matter did not lye, for that the Evidence in the Bill for the Perjury was given for the Queen in maintenance of the Recognizance, and that to the grand Iury which was charged for the Queen: But as to that it was ſaid, by the Lord Chancellor and both the Chief Iuſtices, that the Writ De fama & geſtu, Brief de Fama & geſtu. is an eſpecial Writ at the Suit of the Party, and not of the Queen, and the Court cannot deny it to him who asketh it; and the grand Iury, as to that matter, ſhall be accounted a ſpecial Iury, &c.

Mich. 16 Eliz In the Common Pleas. CVIII. Jackſon and Darcys Caſe.

Tail barred by a Fine. 3 Leon. 57.IN a Writ of Partition betwixt Jackſon and Darcy, the Caſe was, Tenant in Tail, the Remainder to the King, levied a Fine, had Iſſue and dyed, it was adjudged that the Iſſue was barred, and yet the Remainder to the Queen was not diſcontinued; for by the Fine an Eſtate in Fee-ſimple determinable upon the Eſtate in Tail, paſſed to the Conuſee.

Trin. 17 Eliz. In the Common Pleas. CIX. Stroads Caſe.

Tenures.IN a Replevin, the Caſe was, Lands holden of a Subject came to the poſſeſſion of the King by the Statute of 1 E. 6. of Chauntries. The King granted the Lands over unto another: it was holden in this Caſe that the Patentee ſhould hold of the King according to his Patent, and not of the ancient Lord; but the Patentee ſhould pay the rent, by which the ſaid Land was before holden, as a Rent-ſeck diſtrainable of Common right to the Lord and his Heirs, of whom the Land was before holden.

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

A. Seized of Lands in Fee deviſed them to his Wife for life, and after her deceaſe,Eſtate. ſhe to give the ſame to whom ſhe will: He had Iſſue two daughters, and died;Deviſes. Leon. 121 • the wife granted the Reverſion to a Stranger and committed waſte, and the two daughters brought an Action of waſte. In this Caſe it was holden, that by that Deviſe the wife had but an Eſtate for life, but ſhe had alſo an authority of giving the Reverſion by her Will to whom ſhe pleaſed; and ſuch a Grantee ſhall be in by A. and his Will; for A. hath given expreſly to his wife for life, and therefore by Implication ſhe ſhall not have any further Eſtate: But if an expreſs Eſtate had not been appointed to the wife; by the other words an Eſtate in Fee ſhould have paſſed.

Mich. 19 Eliz. In the Common Pleas. CXI. Sir Thomas Kemp and Windſors Caſe.

SIr Thomas Kemp was outlawed at the Suit of one Windſor, who had againſt him four Capias utlagat', and none of them were ſerved, and afterwards he ſued out a fifth Capias: It was moved by Mead, that the ſaid Sir Thomas keepeth open Houſe, and yet the Sheriff had not ſerved the Capias. Dyer, The Sheriff may juſtifie to break the Houſe to take his body, and ſeize his Goods for the Queen, for this Proceſs is in Law at the Suit of the Queen; but contrary where the Proceſs is ſued at the Suit of a Subject: And the Iuſtices commanded Ford Prothonotary to make a ſpecial Capias for Body and Goods; and a pain in the Writ of 100 l. upon the Sheriff to execute the Writ accordingly.

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

THis Caſe was moved by Anderſon Serjeant at Law,Improvement of Common. if in caſe of Common appurtenant by Preſcription without number, the Lord of the waſte might improve, for it is not admeaſurable, therefore not improveable, for the Common being without number, the ſufficiency cannot be proved. Dyer and Manwood Iuſtices, although it be without number, yet it may be reduced to a certainty being by Preſcription; as the number of the Cattel, and the beſt and moſt ſubſtantial Tenant of the ſaid Tenement at any time within time of memory had kept upon the ſaid waſte, and then the Plaintiff the Lord might improve leaving ſufficient, according to ſuch Rate.

Mich. 19 Eliz. In the Common Pleas. CXIII. The Earl of Derbys Caſe.

Debt not againſt the Huſband upon a Contract by the Wife.DEbt by a Merchant of London againſt the Earl of Derby and his Wife, and declared upon a Contract for Silks, and it appeared upon the Evidence, that the Counteſs during the Coverture had bought of the Plaintiff certain Silks for her own wearing; and for the mony, which the Counteſs agreed to pay for the ſame, the Action was brought. It was the Opinion of Dyer, Manwood, and Mounion, that the contract by the Wife, during the Coverture, ſhould not bind the Husband; but admit that the Husband ſhould be bound yet this Action is not well brought againſt the Wife, for ſhe ought not to be mentioned in the Writ.

CXIV. Mich. 19 Eliz. In the Kings Bench.

Indictments.ONe was indicted in the Country, becauſe he commanded J.S. to take up a Bridge, being in Regia via, leading from ſuch a Town to ſuch a Town; and alſo the ſaid J. S. was indicted for executing the command of the other: Exception was taken to the firſt Indictment, becauſe no place of the commandment is alledged in the Indictment, and for that cauſe the Indictment was taken inſufficient, although Mr. Plowden ſtrongly inſiſted upon the contrary, as in Treſpaſs the Defendant juſtifies by the commandment of J. S. the ſame is good without any place of the commandment, for in the firſt Caſe the commandment is traverſable, but contrary put by Mr. Plowden, Vide 3 H. 7. 11. Markenfields Caſe. Another Exception was taken to the Indictment, becauſe it is not there alledged, that the Bridge was a common Bridge, but becauſe there was other words in the Indictment which ſupplyed the ſame, ſcil. in via Regia, the Indictment was holden good enough.

CXV. 19 Eliz. In the Common Pleas.

IN a writ of Partition between Tenants in common upon the Statute, of 20 Acres of Land; the Defendant as to part, ſcil. 10 Acres, pleaded Non tenet pro indiviſo, and as to the reſidue confeſſed the Partition; and by Manwood, and Ford chief Prothonotary, the confeſſion ought to be in the beginning of the Plea, and Non tenet pro indiviſo, in the ſecond place laſt, ſo as that part of the Plea which agrees with the Demand, ought to preceed the part which denies demand: And the truth of the Caſe was, that the Defendant had but 10 Acres in all, and of them was ſole ſeized. Manwood, If your Caſe be ſuch you may ſafely plead to the whole Non tenet pro indiviſo.

20 Eliz. In the Common Pleas. CXVI. Duffams Caſe.

A Man made a Leaſe by Deed indented for 20 years to begin after the expiration of a former Leaſe thereof made to one Duffam, in an Action brought by the ſecond Leſſee againſt the Leſſor; the Leſſor ſaid there was no ſuch Duffam in rerum natura at the time of the ſuppoſed Leaſe made to Duffam. It was ſaid that ſuch a Plea did not lye for the Leſſor,Eſtoppel. for he is eſtopped to ſay againſt the Indenture, that no ſuch Duffam was, &c. And alſo, if no ſuch perſon was, then the firſt Leaſe was void, and the ſecond Leaſe ſhould begin preſently, which Mounſon and Manwood conceſſerunt And Manwood ſaid that the Defendant ſhould be eſtopped by the recital of the firſt Leaſe, to ſay that no ſuch Duffam was; and although that the common ground is, that a recital is not any eſtoppel, yet where the recital is not material, as it is here. for the ſecond Leaſe is to be begun upon the expiration of the Leaſe recited, there is an eſtoppel.Recital.

Trin. 29 Eliz. In the Common Pleas. CXVII. Brown and Fulsbyes Caſe.

UPon the Statute of 5 Eliz. of Vſury, the Caſe was this,Stat. 5 Eliz. of Uſury. A. borrowed of B. 80 l. and was bound in an Obligation to pay to him. 90 l. at the end of the year: It was the Opinion of the Iuſtices, that although the 90 l. was tendred, and B. the Lender did tell the ſame, yet if he take and except but of 80 l. it is not Vſury within the Statute to make a treble forfeiture; but yet in that Caſe the Obligation it ſelf is void.

CXVIII. Trin. 29 Eliz. In the Exchequer.

NOte in the Caſe of the Tenants of Owning and Northmaſton. It was holden by Manwood Chief Baron, That he who hath veſturam terrae cannot dig the Land. And Gent Baron ſaid, where many have Lot-Meadow to be divided, every year by lot, who ſhall have the Graſs of ſuch an Acre, and who of ſuch an Acre, &c. and ſo change every year according to Lots, they have not any Freehold therein, but only Veſturam terrae.

Trin. 32 Eliz. In the Exchequer. CXIX. Sir Walter Wallers Caſe.

3 Leon. 259. Execution. a Leon. 77.IN the Caſe of Sir Walter Waller, it was moved, if one hath Iudgment in Debt, and thereupon within the year and day ſueth a Capias ad ſatisfaciend. although he doth not proſecute the ſame in two or three years, yet when he pleaſeth he may proceed upon it, and ſhall not be put to a Scire facias, and of that Opinion was Philips. Manwood Chief Baron, I agree that if one hath ſued a Writ of Execution, and the ſame be continued two or three years by Vicecomes non miſit breve, yet the Plaintiff may proceed upon it,Diſcontinuance of Suit. and ſhall not be put to a Scire facias. But if ſuch Writ be ſued forth, but not continued, but diſcontinued for a year and a day, he ſhall be put to a Scire facias, for it is the negligence of the Plaintiff not to continue it, which within the year and day he might do without Order of the Court; but not after the year by any Order of the Court.

32 Eliz. In the Exchequer Chamber. CXX. Ruſſel and Prats Caſe.

RUſſel as Executor of Ruſſel brought an action upon the Caſe againſt Prat and his Wife, of Trover and Converſion of Goods and 700 l. in money, and declared that the Teſtator was poſſeſſed of theſe Goods, 6 Feb. 1 Eliz. at which day they came to the hands of the Defendant dum ipſa ſola fuit, and converted them, &c. and Licer the Wife dum ſola fuit was required and the ſaid Prat and ſhe after their marriage, to deliver them, yet they not only refuſed ſo to do, but knowing the ſaid Goods and Money de jure to belong to the Teſtator in his life, and to his Executors after his death machinantes • pſum inde call • de decipere & defraudare, the ſaid Wife dum ipſa ſola fuit converted them to her uſe the ſaid 6 day of February. And Error was aſſigned in the Declaration, becauſe it is not alledged there, whether the ſaid converſion was in the Life of the Teſtator, or after his death, for that ought to be ſhewed certainly; for if it was in the life of the Teſtator, then it was not puniſhable by the Common Law or Statute Law, and the converſion is the principal point of the action. This action is perſonal & moritur cum perſona; for it is grounded upon a perſonal wrong, and ariſeth upon a diſceit and wrong, and if there was no converſion, then an Action of Detinue ſhould lye 7 E. 3. Replevin by Executors of Goods taken in the time of the Teſtator, Fitz. Exec. 106. And it was ſaid that this Action here doth not lye upon the Statute of 4 E. 3. which gives to Executors an Action of Treſpaſs De bonis aſportatis in vita Teſtatoris, for the ſaid Statute gives remedy in Caſes, where there was no remedy before, but here the Plaintiff might have Detinue. And in our Caſe it appeareth not whether the Converſion was in the life of the Teſtator, or after his death, therefore for the incertainty it is not good. Alſo here is a repugnance in the Declaration, ſcil. Sciences the ſaid Goods de jure pertinere to the Teſtator, in his life, and after his death to his Executors, & machinantes ipſum inde decipere & defraudare, the ſaid wife dum ipſa ſola fuit, converted them to her uſe, which cannot be, &c. Popham Attorney General contrary. And he agreed, that the Executor ſhould not have an accompt againſt one who was accomptable to the Teſtator, becauſe the privity was gone. But it hath been granted on the other ſide, that here upon the matter Detinue lieth, and if, &c. then alſo this Action lieth, for this is the nature of it. If the Teſtator lends a Horſe to a ſpecial purpoſe, ſcil. to ride to ſuch a place, and the party rideth further, and the Teſtator dyeth, the Executor may have Detinue, or this Action, be the Converſion in the life, or after the death of the Teſtator; and yet the damages recovered, for the Goods converted ſhall be Aſſets. Two Ioyntenants poſſeſſed of Goods, loſe them and they come to A. by Trover, who converts them to his uſe, be it in life, or after the death of one of them, is all one. Anderſon, The Converſion may be well intended after the death; and as to the Exception for the Repugnancy, it was ſaid by the Iuſtices, that the words • ciente • , &c. are but ſurpluſage, and not traverſable. Cook. If I deliver Goods to a Carrier, being in a Cheſt, and he breaks it and takes them out, in that Caſe Treſpaſs lieth vi & armis, notwithſtanding the delivery. Anderſon, praedicta tamen; i. e. Non obſtante, that the Teſtator was dead, did not redeliver them, &c. which proves that the Teſtator was dead: Periam, praedicta tamen, refers to the Non deli • eravit, not to the Converſion. Cook, I find your Goods and uſe them, the ſame is a Converſion: and in the Caſe of Knight againſt Vinchcomb, it was holden that a Converſion is traverſable, therefore it ought to be certainly alledged: and in our Caſe the Executor might have detinue or Treſpaſs for the perſonal wrong; where the thing it ſelf certain is to be recovered, there the Executor is ſure to have an Action, as Detinue, Replevin, &c. but where damages only, or things uncertain, there the Executors ſhall not have Action; and that difference was in a manner agreed by all. Anderſon, Where it is ſaid, That upon the Aſſumpſit of the Teſtator, the Executor ſhall have an Action upon the Caſe, the reaſon is, becauſe the duty upon the Aſſumpſit is certain: and the Statute of 4 E. 3. ſhall not be taken by Equity; for by the ſaid Statute, the Executor of an Executor ſhall not have an Action before the Statute of 25 E. 3. Alſo there is not any wrong, for then moritur cum Perſona: If one finds my Goods, and denies the having of them, the ſame is not Treſpaſs. Periam, This Caſe is not within the Statute of 4 E. 3. for the Statute is to be intended, where Goods are taken vi & armis, and if it be at all within the Statute, it muſt be within the Equity of it. Manwood, Where one takes my Horſe and dies, I ſhall not charge his Executor, and that is our Caſe. At another day ſome held, That the Action did not lye againſt Executors, therefore not for Executors: And Executors of Executors ſhall not be charged with a Devaſtavit made by the firſt Executors. Manwood, The Executor of the Gaoler ſhall not be charged in an Eſcape. Anderſon, It is not within the Equity of the Statute of 4 E. 3. Cook. A Smith pricks my Horſe, my Executors ſhall not have an Action for it. Anderſon, If one takes my Goods, I ſhall have Detinue for it, therefore this Action. Cook, If one take my Goods he is a Treſpaſſer, and I ſhall have Detinue, for that affirms a property. Manwood, If my Goods be taken from me, I cannot give them to a ſtranger, but if my Goods come to another by Trover, I may give them over to another.

CXXI. Trin. 32 Eliz. In the Exchequer.

Attaint.IT was holden by all the Barons, That where the Queen is ſole Party againſt the Subject, and the Iury find for the Queen, no Attaint lyeth; contrary where the Suit is Tam pro Domina Regina, quam pro ſeipſo.

CXXII. Trin. 32 Eliz. In the Exchequer.

Debt:IF Rent-corn be reſerved upon a Leaſe for years, and it is behind for two or three years, the Leſſor may have Debt for the Corn, and ſhall declare of ſo much Corn, and it ſhall be in the Detinet, but yet he ſhall not have Iudgment to have Corn, but ſo much mony as the Corn was worth, every ſeveral year being accompted. Clark Baron doubted if he ſhall recover the price of the Corn, as it was at the time when it was payable, or it was at the time of the Action brought. Manwood, The Law is clear, that the Leſſee ſhall pay according to the price it was at the time of the payment and delivery limited by the Leaſe. Clark ſaid, A is bound to pay and deliver to the Obligee 10 Buſhels of Wheat, and no place is appointed where the payment ſhall be made, the Obligor is not bound to ſeek the Obligee in what place ſoever as it is in Caſe of payment of mony, for that the importableneſs therefore ſhall excuſe him, which Manwood granted.

CXXIII. Trin. 27 Eliz. In the Exchequer.

NOte, It was holden by the Barons,Fine for Alienation without Licence. that for Fines for Alienation without licence, not only the Land aliened, but the other Lands of the Alienor ſhall be chargeable.

Mich. 30 Eliz. In the Exchequer. CXXIV. Prowſes Caſe.

IT was holden in the Caſe of one Prowſe by Egerton Solicitor,Tythes. upon the Statute of 31 H. 8. where an Abbot had a Rectory impropriate, and alſo Land within the ſame Pariſh, &c. and ſo paid no Tythes, becauſe he could not pay them to himſelf, and for no other cauſe was diſcharged; and after the Diſſolution, the Rectory is granted to one, and the Land to another, that in ſuch Caſe the King nor his Patentees ſhould not be diſcharged of Tythes, for the Lands were not diſcharged in Right; but if the Lands in the hands of the Abbot were diſcharged in Right, as by compoſition or lawful means, there the King and his Patentee ſhould be diſcharged from payment of Tythes. And it was ſaid by Burliegh Lord Treaſurer, that if the Compoſition or Cuſtom was that the Abbot and his Succeſſors ſhould be diſcharged without extending to Farmors or Leſſees, if the Abbot made a Leaſe, and the Leſſee paid Tythes, as he ought; and after the Reverſion cometh to the King, the Leſſee ſhould pay Tythes during his Leaſe, but after the Leaſe determined, the King and his Patentee ſhould not pay, but ſhould be diſcharged by the ſaid Statute; and ſaid, the like matter was in the Chancery. Trin. 30 Eliz. The Abbot of Tewkesbury having the Rectory impropriate of Tewkesbury, 11 H. 7. purchaſed Lands within the ſaid Pariſh to him and his Succeſſors,Unity no diſcharge of Tythes. after the diſſolution the King granted to G. the Rectory, and to W. the Lands; and if W. ſhould pay Tythes, was referred to Manwood and Periam, who gave their Reſolution, that Tythes were payable.

Trin. 30 Eliz. In the Kings Bench. CXXV. Ropers Caſe.

ROper was robbed by Smith, and within a week after the Robbery, he preferred an Indictment againſt him, and within a month after the Robbery, he ſued an Appeal againſt Smith, and proſecuted it until he was out-lawed, and thereupon Cook moved to have Reſtitution, and they of the Crown Office, ſaid that the Freſh-ſuit was not enquired, for upon an Appeal one ſhall not have Reſtitution without Freſh-ſuit.Reſtitution. Cook, The Books are, if the Defendant in the Appeal of Robbery be attainted by Verdict,Freſh Suit. the Freſh-ſuit ſhall be enquired of: But here he was attainted by Outlary, and not by Verdict, and ſo the Freſh-ſuit could not be enquired of; and here the Indictment is within a week, and the Appeal within a month after the Robbery, is a Freſh-ſuit. Wray Chief Iuſtice, In our Law he is to purſue the Felon from Town to Town; but the ſuing of the Appeal is no Freſh-ſuit, vide 21 F. 4.16. Reſtitution grounded upon Outlawry, and Appeal of Robbery without Freſh-ſuit enquired of 1 H. 4. 5. if he confeſs the Felony, and ſo is 2 R. 3. 13.

Trin. 30 Eliz. In the Kings Bench. CXXVI Piers and Leverſuches Caſe.

IN Ejectione firmae by Piers againſt Leverſuch. It was found by Verdict that one Robert Leverſuch, Grandfather of the Defendant, was Tenant in Tail of the Land whereof, &c. and made Leaſe for years to Purn, who aſſigned it over to Piers the Plaintiffs Father. Robert Leverſuch died, W. his Son entred upon Piers, who re-entred; W. demiſed the Lands without other words to P. for life, the remainder to Joan his wife for life, the remainder to the Son of P. for life, with warranty, and made a Letter of Attorney to re-enter and deliver ſeiſin accordingly. P. died before that the Livery was executed, and afterwards the Attorney made Livery to Joan, W. died, Edward his Son and Heir entred upon his Wife, ſhe re-entred and let the Land to the Plaintiff, who upon an Ouſter brought the Action. Heal Serjeant, When P. entred upon W. Leverſuch, the Iſſue in Tail, he was a Diſſeiſor, and by his death the Land deſcending to his Heir, the entry was taken away of W. Leverſuch. Cook contrary, P. by his entry was not a Diſſeiſor, but at the Election of W. for when P. accepted ſuch a Deed of W. it appeared that his intent was not to enter as a Diſſeiſor; and it is not found that the ſaid P. had any Son and Heir at the time of his death, and if not, then no deſcent, and there is not any diſſeiſin found that P. expulit Leverſuch out of the Land, and Iudgment was given againſt the Plaintiff. And Cook cited a Caſe which was adjudged in the Common Pleas; it was Skipwiths Caſe. Grandfather Tenant in Tail, Father, and Son, the Grandfather died, the Father entred and paid the rent to the Leſſor, and died in poſſeſſion, and it was adjudged the ſame was not any deſcent, for the paying of the rent explained by what title he entred, and ſo ſhall not be a Diſſeiſor, but at the Election of another.

Trin. 33 Eliz. In the Kings Bench. CXXVII. Penhalls Caſe.

PEnhall was indicted upon the Statute of 5 E. 6. for drawing his Dagger in the Church againſt J. S. without ſaying, that he drew it with intent to ſtrike the Party, and for that cauſe the Indictment was holden void, as to the Statute. It was moved, if it ſhould not bee a good Indictment for the Aſſault, ſo as he ſhould be fined for the ſame: By Sands Clerk of the Crown, and the whole Court, the Indictment is void in all; for the concluſion of the Indictment is contra formam Statuti, and then the Iury cannot enquire at the Common Law.

Trin. 33 Eliz. In the Kings Bench. CXXVIII. Weſhbourns Caſe.

WEſhbourn and Brown were Indicted upon the Statute of 8 H. 6. and exception was taken to it, becauſe in the Margent was written Middleſex, and in the Indictment they both were named of London, and afterwards in the proceedings the words are, That Weſhbourn and Brown entred in ſuch manner in Com. praedict. and that is incertain what County is intended, Middleſex or London; but the Exception was not allowed, for London before is not expreſſed to be accounted, but only implyed. Another Exception was, becauſe they had not any addition; but it was not allowed, for it appeared to the Court. And after it was moved upon the Statute of 31 Eliz. cap. 11 that no Reſtitution upon ſuch Indictment ſhould be granted if • he party indeed had had the Occupation, or had been in quiet poſſeſſion for three years next before the day of the Indictment, and in the Caſe at Bar the Maſter hath been in poſſeſſion by three years, but the Parties indicted being his Servants, had been with him but for one year; it was thereby holden by the Court, that upon the matter Reſtitution ſhould not be granted, for the poſſeſſion of the Maſter in this Caſe, takes away all Reſtitution, and that by the Statute.

Mich. 32 Eliz. In the Common Pleas. CXXIX. Canons and Osborns Caſe.

A. Seized of a Rent in Fee, granted the ſame by Fine to B. to the uſe of C. It was moved to whom the Ter-tenant ſhould attorn. And by Walmeſly, Periam, and Windham, there needs not any Attornment to the Conuſee, becauſe all the right of the Rent is out of the Conuſor,Attornment. and transferred to Ceſtuy que uſe inſtantly: And Walmeſly cited this Caſe to have been lately adjudged. A Reverſion in Fee upon a Leaſe for years was granted by Fine to A. to the uſe of B. B. without Attornment brought an Action of Waſte, and it was adjudged that the Action did well lye.

CXXX. Mich. 32 Eliz. In the Common Pleas.

A Leaſe for years is made by Deed Indented rendring Rent, and the Leſſor covenants that the Leſſee paying his Rent ſhall enjoy the Land demiſed for the whole term, the Leſſee did not pay the Rent, and afterwards is ejected by a Title peramount: By Walmeſly and Windham Iuſtices, that the Covenant is conditional, and that the Leſſee ſhould not have advantage of it, if he did not perform the Condition, which is created by this word (paying.) Periam Iuſtice, was ſtrongly to the contrary, viz. that the word (paying) did not create a Condition.

Mich. 32 Eliz. In the Common Pleas. CXXXI. Thetford and Thetfords Caſe.

THe Caſe was an Action of Debt for Rent reſerved upon a Leaſe for years; the Plaintiff declared that Land was given to A. and B. his Wife,Leaſes. and the Heirs of their Bodies, and that he and his Wife leaſed for years to the Defendant,Baron and Feme. and that the Donees were dead, and that the Plaintiff as Heir, &c. for Rent behind, &c. And upon Non dimiſerunt, the Iury found, that the Husband and Wife dimiſerunt by Indenture, and that after the Husband died, and the Wife entred and within the term died:Agreement. Diſagreement. Now upon this matter, Anderſon Iuſtice, conceived clearly that the Iury have found for the Defendant, ſcil. Non dimiſerunt, for it is now no Leaſe ab initio, becauſe the Plaintiff hath not declared upon a Deed, and alſo the Wife by her diſagreement to it, and Occupation of the Land after the Death of her Husband, had made it to be the Leaſe of her Huſband only.

Trin. 31 Eliz. In the Common Pleas. CXXXII. Acton and Pitchers Caſe.

IN a Writ of ſecond Deliverance by Acton againſt Pitcher. Leaſes within 32 H. 8. It was moved, if a Leaſe made by a Prebendary were within the Statute of 32 H. 8. cap. 28. becauſe the ſaid Statute ſpeaks of men ſeized in the right of their Churches, and a Prebendary is ſeized in right of his Prebend, and not in right of the Church: But it is the Opinion of the whole Court, that he was within the Equity of the Statute.

Trin. 32 Eliz. In the Common Pleas. CXXXIII. Curtiſes Caſe.

IN a Writ of Error it was holden in the Common Pleas, Amendment. that if a Writ of Error be brought and delivered to the Chief Iuſtice de Communi Banco, and allowed by him under his hand; that afterwards the Record cannot be amended by Prothonotary, Attorney, or Clerk of the Court, although that no Record be entred upon the Roll, upon which the Writ of Error is brought.

Mich. 31 Eliz. In the Common Pleas. CXXXIV. Scots Caſe.

SCot brought a Formedon againſt A. who made default after default,Reſceit. Anderſ. 133. and now came B. and ſurmiſed to the Court that C. was ſeized of the Land in Demand, and gave the ſame to A. in Tail, the remainder to the ſaid B. in Fee, and prayed to be received; and afterwards the Court, upon advice, ouſted him of the Reſceit.

28 Eliz. In the Common Pleas. CXXXV. Terrets and the Hundred of &c. Caſe.

IN an Action upon the Statute of Huy and Cry againſt the Hundred of, &c. the Defendants pleaded Not Guilty:Action upon Statute of Huy and Cry. And in Evidence, the Plaintiff to prove that he was robbed, offered to the Iury his Oath in verifying his Declaration, which Anderſon and Periam utterly refuſed to accept of; but Windham Iuſtice affirmed, that ſuch an Oath had been accepted of in the Caſe of one Harrington, Oaths. where the Plaintiff could not have other Evidence to prove the Cauſe in reſpect of ſecreſie; for thoſe who have occaſion to travel about their occaſions, would not acquaint another, what monies or other things, which they have in their journey: and we ſee that the Law doth admit of the Oath of the Party in his own cauſe where the Oath ſhall make an end of the cauſe, as in Debt, where the Defendant wageth his Law. Periam, That's an ancient Law; but we will not make new Preſidents, for if ſuch an Oath be accepted of us in this caſe, by the ſame reaſon in all cauſes where is ſecrecy and no external proof, whereupon would follow great inconvenience; and although ſuch an Oath hath been accepted of, and allowed here, yet the ſame doth not move us, and we do not ſee any reaſon to multiply ſuch Preſidents. The Declaration is, that the Plaintiff was robbed of 10 l. de Denariis ipſius querentis, and upon the Evidence it appeareth that the Plaintiff was Receivor of the Lady Rich, and had received the ſaid mony for the uſe of the ſaid Lady: And Exception was taken to the ſame by Shuttleworth, but it was not allowed of, for the Plaintiff is accomptable to the Lady Rich for the ſaid mony. And it was agreed, that if he which was robbed after he had made Huy and Cry, doth not further purſue the Felons, yet his Action lyeth.

Mich. 26 Eliz. In the Kings Bench. CXXXVI. Townſend and Paſtors Caſe.

Feoffment by Coparceners Ceſtuy que uſes. NOte, It was holden in the Common Pleas by all the Iuſtices in the Caſe between Townſend and Paſtor, two Coparceners are in the uſe of a Manor after the Statute of 1 R. 3. the one of them enters and makes a Feoffment in Fee of the whole Manor, that this Feoffment is not only of the moiety of the Manor, whereof ſhe might lawfully, and by the ſaid Statute make a Feoffment, but alſo of another moiety by diſſeiſin.

Mich. 26 Eliz. In the Kings Bench. CXXXVII. Bulwer and Smiths Caſe.

BUlwer brought an Action upon the Caſe againſt Smith, and declared, how that H. H. had recovered againſt the Plaintiff in the Common Pleas 20 l. and before Execution died, and that the Defendant knowing that, at D. in the County of Norfolk, malitioſe & deceptive machinans, to Outlaw the Plaintiff upon the ſaid Iudgment, in the name of the ſaid H.H. &c. in performance of his ſaid purpoſe, at W. in the County of Middleſex, took out a Capias ad ſatisfaciend. in the name of the ſaid H.H. againſt the now Plaintiff upon the ſaid Iudgment directed to the Sheriff of London, and Non eſt inventus being returned upon that, took out an Exigent, in the name of the ſaid H.H. which Writ by the procurement of the Defendant was retorned, and then the Plaintiff was Outlawed, and afterwards the Defendant in the name of the ſaid H. H. took out a Capias utlagatum againſt the Plaintiff directed to the Sheriff of Norfolk; by force of which the Plaintiff was arreſted and impriſoned for two months, until he had gotten his Charter of Pardon, by reaſon of which Outlawries the Plaintiff had forfeited all his Goods and Chattels: and upon the ſaid Declaration, the Defendant did demur in Law, and the principal cauſe of the demurrer was becauſe that the Action might have been laid in Middleſex, where the wrong began, ſcil. the Capias ad ſatisfaciend, the Outlawry for this imagination at D. in the County of Norfolk, ſet forth in the Declaration, cannot give to the Plaintiff this Action: But if divers conſpire in one County for to indite one, and they put the ſame in Execution in another County, the Party aggrieved may lay his Action in which of the ſaid two Counties he pleaſeth 22 E. 4. 14. for a Conſpiracy is more notorious, than an imagination, imaginatio eſt unius, conſpiratio plurimorum: And in this Caſe the Deliverance of the Capias at D. in Norfolk is but acceſſary, and the ſuing of the Proceſs aforeſaid at Weſtminſter is the principal: upon the part of the Plaintiff it was ſaid, that ſuch an action might be laid in the County, where the Plaintiff was wronged and the Plaintiff is not tied to lay his Action in the County where the original matter, which was but conveyance to the ſaid wrong, was done. A impriſoned upon a Capias ad ſatisfaciend. in Middleſex eſcapes into Surrey, the Action upon the eſcape ſhall be laid in Surrey. Reteiner of a Servant in one County, who departs in another County, the Maſter ſhall lay his Action in which of the ſaid Counties he will, 15 E. 4. 18, 19. 41 E. 3. 1. A Writ of Diſceit was brought in the County of York, and the Caſe was, that in a Praecipe quod reddat of Land, the Tenant ſhewed forth a Protection at Weſtminſter, the which was allowed for a year, and within the year the Tenant ſtayed in the County of York upon his own occaſions, the ſaid Writ of Diſceit was holden to be well laid, for there the wrong began, notwithſtanding that the Original: i. e. the caſting of the Protection was in Middleſex; for the diſceit is, that the Tenant contrary to the pretence of the Protection continued at York, for the Protection was quia Moraturus. And always where the cauſe of the Action conſiſts of two things, whereof the one is matter of Record, and the other is matter of Fact: there the Action ſhall be laid in ſuch County, where the matter in fact may be more properly tried, Vide 11 R. 2. Fitz. Action ſur le Caſe 36 Br. Lieu 84. in the principal Caſe at Bar, the Court was of Opinion, that the Action was well brought in the County of Norfolk. Another Exception was taken to the Declaration, becauſe the Plaintiff hath there ſet forth whereas his true name is John Bulwer, by which name he now ſues, he was ſued and outlawed by the name of John Buller, and then the now Plaintiff upon that matter was never ſued, nor outlawed, and then is not grieved by the Defendant, but John Buller; for here in his Declaration there is not any averment that John Bulwer and John Buller are one and the ſame, and not divers Perſons: But the Exception was diſallowed, for the whole Court held, that for As much as the Plaintiff hath declared that he, by the name of John Buller, was ſued and Outlawed, the ſame is an averment in Law, &c. and amounts to ſo much. Another matter was objected, becauſe it appeareth in the Declaration that H. H. was dead before this Proceſs was ſued, and then the Outlawry was erronious, and ſo the Plaintiff is not at any miſchief, but that he may reverſe the Outlawry by Error; as in Conſpiracy, the Defendant pleads, that the Indictment upon which the Plaintiff is arraigned is vitious and erroneous and ſo his life was never in jeopardy. But as to that, it was ſaid by the Court, that the erronious proceedings of the Defendant ſhall not give advantage to himſelf, but becauſe the Plaintiff was vexed by colour and reaſon of the Outlawry, and put to his Writ of Error, which cannot recompence the loſs and damage by him ſuſtained by reaſon of the Outlawry aforeſaid, it is reaſon that the Plaintiff have his Action; wherefore Wray Chief Iuſtice, ex aſſenſu Sociorum, gave Iudgment for the Plaintiff.

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

Upon the Statute of 23 Eliz. of Recuſancy.CErtain Perſons were indicted upon the Statute 23 Eliz. for refuſing to come to the Church, and upon the ſame were Outlawed, and now they came to the Kings Bench ready to make their ſubmiſſion, and to conform themſelves according to the ſaid Statute; and thereupon they prayed to be diſcharged. But the Court would not receive ſuch Submiſſion, but adviſed them to purchaſe their Pardon for the Outlawry, and then to tender their Submiſſion, which they did accordingly, and at another day came again, and ſhewed to the Court their Pardon; whereupon the Clerk of the Court asked them if they would conform themſelves according to the ſaid Statute; who ſaid they would, wherefore they were diſcharged.

Mich. 27 Eliz. In the Kings Bench. CXXXIX. Chriſtian and Adams Caſe.

Action for words.AN Action upon the Caſe was brought for ſpeaking theſe ſcandalous words of the Plaintiff, ſcil. the Plaintiff did conſpire the death of the Defendant; it was found for the Plaintiff, and moved in Arreſt of Iudgment, that upon the matter the Action did not lye; for the bare conſpiring of the death of a man is not puniſhable by the Law of the Land, no more than if many conſpire to indict one, but do not put it in Execution it is not puniſhable; but if A. ſaith that B. lyeth in wait to kill him, or rob him, there an Action lyeth, for inſidiatores viarum are puniſhable. But the Opinion of the whole Court was, that becauſe theſe words ſound in great diſcredit of the Plaintiff, it is reaſon he have his Action, and ſo Iudgment was given for the Plaintiff.

Mich. 27 Eliz. In the Kings Bench. CXL. The Lord Stafford and Sir Rowland Heywoods Caſe.

THe Lord Stafford brought an Action upon the Caſe againſt Sir Rowland Heywood Kt. Abatement of Writ. Exception was taken to the original Writ, viz. ad reſpondend. &c. Quare colloquium, quoddam habebatur, inter Dominum Stafford & Row. Heywood de aſſurando Caſtrum, to the ſaid Lord Stafford by the ſaid Sir Rowland, &c. Dictus Rowlandus Caſtrum illud non aſſuravit, &c. where the ſaid Writ ſaid cum colloquium quoddam habebatur; for the cauſe of the Action is not colloquium habitum, but the not aſſurance of the Caſtle according to the promiſe made ſuper colloquium praedictum; and for that cauſe the Writ was abated.

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

NOte, by the Court, If one who is not a common Informer, be barred in any Information or Action upon a penal Statute, he ſhall pay coſts, notwithſtanding the Preamble of the Statute of 18 Eliz. cap. 5. be, for the redreſſing of divers Diſorders in common Informers; but if pars gravata be barred, in ſuch caſe he ſhall not pay coſts.

Trin. 32 Eliz. In the Exchequer. CXLII. Robinſons Caſe.

GEorge Robinſon Leſſee for years of the Manor of Drayton Baſſet, the Reverſion to the King, deviſed his term to his wife, as long as ſhe ſhould keep her ſelf a Widow, with the Remainder over, if ſhe married or died, and made his Wife and his Son William his Executors, the ſaid William being within age, and therefore the adminiſtration was committed to the Wife alone, and ſhe only proved the Will, and afterwards the Wife granted all her Intereſt to the ſaid William, and dyed; And by Cook nothing paſſed by this Grant, for William had the ſame before, for every Executor hath the whole Intereſt. Popham contrary; for at the time of the Grant the Son was within age, and had not adminiſtred nor proved the Will, therefore in effect the wife was ſole Executrix; and by Egerton Solicitor, if during the ſaid Executorſhip by the wife, one doth treſpaſs upon the Lands, the wife only ſhall have the Action of Treſpaſs without naming her Co-Executor, which Cook denied; and he cited the Caſe 10 H. 7. 4 where two Executors are, and the one only is poſſeſſed of goods of the Teſtator and a Stranger takes them our of his Poſſeſſion, to whom the other Executor releaſeth, and after the Executor, out of whoſe poſſeſſion the goods were taken, brings an Action of Treſpaſs againſt the Treſpaſſer, who pleads the Releaſe of the other Executor, and it was holden a good Plea, for the poſſeſſion of the Plaintiff was alſo the poſſeſſion of his Companion: The Caſe was further, that Thomas Robinſon in pleading, ſhewing that G. Robinſon was poſſeſſed, and the ſame deviſed to his wife, who granted to William Robinſon, who deviſed it to the Defendant: And the other ſide ſhewed, that the ſaid Thomas granted the ſaid term to Paramour, and upon that grant they were at Iſſue; if now againſt his own pleading Thomas might give in evidence, that Thomas could not grant, for that he had not any thing to grant; for if the gift made by the wife to William was void, and he had the term as Executor, then he could not deviſe it, but his deviſe to Thomas was void, and then Thomas could not grant it, and ſo Ne grant pas. It was alſo ſhewed, that the ſaid Thomas granted the ſame to Paramour by Indenture; if now againſt that Indenture he might give in evidence ſuch ſpecial matter; ut ſupra; and if the Party ſhall be concluded, if the Iury ſhall be concluded to give the Verdict Secundum veritatem facti, for they are ſworn to ſay the truth, and by Popham and Egerton, as well the Iurors, as the Parties, are bound and concluded by the confeſſion of the Parties on the Record; and here all confeſs that William deviſed to him, virtute cujus he was poſſeſſed. The Queens Attorney to that ſaid, That true it is that Thomas Robinſon was poſſeſſed; but further ſaid, that the ſaid Thomas granted it to Paramour, and ſo the Intereſt of Thomas is confeſſed on both ſides. Therefore the Iury ſhall not be received to ſay the contrary. And by Manwood Chief Baron, if the Parties admit a thing by not gainſaying it,Jurors, where bound by confeſſion of the parties, where not. the Iury is not bound by it; but where upon the pleading a ſpecial matter is confeſſed, the Iury ſhall be bound thereby. And afterwards the Iſſue was found againſt Robinſon the Defendant.

33 Eliz. In the Kings Bench. CXLIII. Applethwait and Nertleys Caſe.

IN an Action upon the Caſe, the Plaintiff declared, that the Defendant promiſed in conſideration that the Plaintiff at the requeſt of the Defendant would marry his Daughter, to give to the Plaintiff 40 l. and ſaid he had married his Daughter, and yet the Defendant Licet ſaepius requiſitus would not pay it. It was moved by Cook in ſtay of Iudgment, that the Declaration is vitious becauſe there is not ſet forth the place and time, when the requeſt was made, for the Aſſumpſit being general, it is by Law to be paid upon requeſt. Fenner, If the promiſe was expreſly to be paid upon requeſt, the Declaration was not good. And afterwards Iudgment was given for the Plaintiff.

Hil. 30 Eliz. In the Common Pleas. CXLIV. Wats and Kings Caſe.

SAmuel Wats Plaintiff in Ejectione firmae againſt W. King, upon a Special Verdict it was found that W. Wallſhot was ſeized in Fee, and he with one Oliver Shuttleworth Octab. Mich. 3 & 4 Phil. & Mary, levied a Fine Sur Conuſans de droit, &c. to John Hooper, who granted and rendred by the ſame Fine to Oliver for a month, the remainder to the ſaid W. Wallſhot, and to one Anne Cook, and the heirs of their bodies, &c. the remainder to the right heirs of the ſaid W. Wallſhot in Fee, and that with Proclamation. William and Anne intermarry, have iſſue John now alive: W. Wallſhot 4 & 5 Phil. & Mary, levy a Fine with Proclamation to Edward Popham Eſq to the uſe of the ſaid Edward and his heirs: W. Wallſhot 18 Eliz. died, Anne took to husband Richard Stephens, and they in the right of the ſaid Anne entred, and by Indenture demiſed the ſaid Land to Richard Hooſe the Father, Richard the Son, and Mary his wife, for the term of their lives, rendring to the ſaid Richard Stephens and Anne his wife, and to the heirs of the body of the ſaid Anne, and of the right heirs of the ſame W. Wallſhot. Anne died; and if this Leaſe ſhould bind the Conuſee was the queſtion, for it was agreed by all that the Iſſue in Tail was bound by the Fine, Quaere; the Caſe was only put, but not reſolved.

CXLV. Trin. 30 Eliz. In the Common Pleas.

UPon a recovery in a writ of Entry ſur diſſeiſin of two Acres of Lands, an Habere facias ſeiſinam was awarded; the Sheriff as to one Acre returned Habere feci, and as to the other tarde. And that return was ſhewed to the Court,Amercement of the Sheriff. and all the Iuſtices but Periam held that the Sheriff ſhould be amerced for that return, being contrary & repugnant in it ſelf; but Periam ſaid, it may be that the Acre of which no ſeiſin is had was ſo diſtant from the other Acre whereof the ſeiſin was had, that the Sheriff in time could not make execution of both being ſo remote the one from the other. To which it was anſwered, That if the truth of the caſe was ſuch, Then might the Sheriff make Execution in one Acre in the name of both Acres. And if upon a Capias ad ſatisfaciend. againſt two, the Sheriff retorn as to one a Cepi, and as to the other Tarde, he ſhall be amerced, for his ſeveral retorns cannot ſtand together.

Mich. 29 Eliz. In the Common Pleas. CXLVI. Lees and Lord Staffords Caſe.

COmpton made Conuſans as Bayliff to Edward Lord Stafford, and ſhewed that Henry Lord Stafford, Father of the ſaid Edward, and Urſula his Wife, were ſeized of the place where, and let the ſame for years to Edward Lees the Plaintiff, Robert Lees, and Elizabeth Atwood, upon Condition they, nor any of them, ſhould alien the ſaid Term, nor any part of the ſame without the leave of the Lord or his Heirs. Henry Lord Stafford and Urſula died, and that the Reverſion thereof deſcended to Edward Lord Stafford; and ſhewed further, that the ſaid Edward Lees the Plaintiff had aliened: To which the Plaintiff in bar of the Conuſans ſaid, that the ſaid Edward now Lord Stafford gave Licenſe, that the ſaid Edward Lees, Robert, or Elizabeth might alien, and that was without Deed. It was conceived by ſome, that this Licence was not of any force to diſpenſe with the Condition, becauſe it is uncertain and doubtful in the disjunctive; and it was reſembled to the Caſe of 11 H. 7. 13. where a man gives a thing to J. S. or A. B. it is void for the incertainty: But all the Court was to the contrary. For here the thing which is given is but a Liberty, and is not to be reſembled to a Gift or Intereſt; and the intent of the Lord Stafford was, that one of them might alien, but not all of them, and afterward Iudgment was given for the Plaintiff.

Trin. 31 Eliz. In the Kings Bench. CXLVII. Limver and Evories Caſe.

LImver as Adminiſtrator of one A. brought Debt againſt Evory, and the caſe was, F. made G. his Executor, and G. made H. an Infant his Executor and died, and during the minority, Adminiſtration was granted to the Plaintiff, who as Adminiſtrator of G brought an Action of Debt upon a Bond made to the firſt Teſtator, and that was aſſigned for Error, for the Plaintiff ought to bring his Action as Adminiſtrator of the firſt Teſtator, vide 10 E. 4. 1. 26 H. 8. 7. and for that Cauſe the Iudgment was reverſed,

Mich. 33 Eliz. In the Kings Bench. CXLVIII. Knevit and Copes Caſe.

KKnevit brought Ejectione firmae againſt Cope, and declared,3 Leon. 266. whereas John Hopkins by his Deed bearing date the 20 of May, 32 Eliz. had let to him a Houſe and two yard Lands, containing forty Acres of Land, Meadow, and Paſture, at Tithingham de forecomb, in the Pariſh of Steep, &c. and upon Not Guilty, the Viſne was of Tithingham de Forecomb: Exception was taken by Cook, that the Declaration had not certainty; for it is not ſhewed certain, how much Meadow Land, and how much Paſture is contained in the ſaid two yard Lands, and the Iury may find the Defendant Guilty, as to ſo much Land, but not to the reſidue; alſo he hath not ſhewed in the Declaration when the Leaſe was made, but only ſaith, that by Indenture bearing date 20 May, &c. but doth not ſhew any day of delivery of the Indenture, for then is the demiſe. To which Exception it was ſaid by the Iuſtices, That the Declaration as to that was good enough, for it ſhall be intended to be delivered at the day of the date. Another Exception was taken to the Viſne, becauſe that the Viſne ought to have been from the Pariſh, and not from Tithingham, 11 H. 7. 23, 24. Forcible Entry in the Manor of B. in B. the Viſne ſhall not be from the Manor of B. but of B. Gawdy, You ſhall never have a Viſne of the Pariſh, for divers Towns may be in one Pariſh; but here the Viſne is well of Tithingham, for it may be that it is a Town. Cook, It is but a Vill conus, from which a Viſne cannot come.

CXLIX. Trin. 28 Eliz. In the Common Pleas. Rot. 1027.

MIlbourn brought an Action upon the Statute of Wincheſter, againſt the Inhabitants within the Hundred of Dunmow in the County of Eſſex, it was found by Special Verdict that the Plaintiff was robbed 23 Aprilis, inter horam ſecundam & matutinam tempore nocturno, & ante Lucem ejuſdem diei; and the Opinion of the Court was clear, that the Plaintiff ſhould be barred, for the ſaid Statute provided for ordinary Travel: as in the Caſe of Archpool, who came to his Inn poſt Sunſet & ante noctem in tempore diurno, which is an uſual time for travelling to come to his Inn; but the Law doth not receive any in protection of this Stat. who travel in extraordinary hours, for it is the folly of the Traveller to take his journy ſo out of ſeaſon, and the Inhabitants are not bound to leave their Houſes, and to attend the ways tempore nocturno: and another reaſon was alledged by the Iuſtices, becauſe the ſaid Statute appoints watch to be kept in the time of night, à Feſto Aſcenſionis uſque ad Feſtum Sancti Michaelis, and this Robbery was done the 23 of April, ſo as it was out of that time; and afterwards Iudgment was given againſt the Plaintiff.

Mich. 26 Eliz. In the Common Pleas. CL. Barkers Caſe.

Eſtrepement in Partition. A Writ of Partition by Barker heir of Gertrude, Marqueſs of Exceter, who deviſed all her Lands to Blunt; by which the third part was deſcended to the Plaintiff, and he prayed a Writ of Eſtrepement; and it was the Opinion of the Court, that the Writ ought not to be granted, for that the Plaintiff might have a more proper remedy upon the Statute cum duo & tres, &c. and in a Writ of Partition, no Land is demanded.

Trin. 29 Eliz. In the Kings Bench. CLI. Megot and Davies Caſe.

Aſſumpſit. MEgot brought an Action upon the Caſe againſt Broughton and Davy upon Aſſumpſit; and it was found by Niſi Prius for the Plaintiff, and afterwards before the day in Bank Broughton dyed; and after Iudgment given, Davy the other Defendant brought a Writ of Error in the ſaid Court, ſcil. in the Kings Bench, where Iudgment was given, and aſſigned an Error in fact, ſcil. the death of Broughton depending, the Writ, vide 2 R. 3. 21. and this Caſe is not like to Treſpaſs; for Treſpaſs done by many are ſeveral Treſpaſſes, but every Aſſumpſit is joynt:If the Court may reverſe their own Judgment. and if the Court upon this matter might reverſe their own Iudgment, was the Queſtion; the Caſe was not reſolved, but adjourned.

CLII. Trin. 31 Eliz. In the Common Pleas.

IT was found by Office, that J. S. held by the Queen, and dyed without Heir, whereas in truth he had an Heir, ſcil. A. S. who leaſed the Lands for an hundred years, and afterwards traverſed the Office,Office trove. and had an Ouſter le mayne le Roy. Now the matter was moved in the Common Pleas by Fenner, in behalf of the Sheriffs of London, before whom the matter depended, to whom it was ſaid by Anderſon Chief Iuſtice,Conveyance by the Heir; upon Entruſion. That where the King is entituled by an Office to a Chattel, as to a wardſhip▪ &c. there if the Heir without any intruſion bargain and ſell, levy a Fine, or leaſe for years during the poſſeſſion of the King, it is void againſt the King, but ſhall bind the Heir; but where the King is intituled to the Fee-ſimple, as in this Caſe, ſuch a Conveyance is meerly void.

Hil. 31 Eliz. In the Kings Bench. CLIII. Samuel Starkeys Caſe.

HOmine replegiando by Samuel Starkey to the Sheriffs of London. Who returned, that the ſaid Starkey was indicted to be de mala fama & deceptione Domini Regis, with divers other general words, and namely that he had deceived J. S. a Clothier, and that he was a common Cozener; and thereof being found guilty, Iudgment was given by the Mayor and Recorder, That he ſhould be disfranchized of his Freedom, and ſhould be fined and impriſoned for a year; and further ſaid, that he had not paid his Fine, nor the year expired. Cook, Such Return hath not been ſeen, and it is directly againſt the Statute of Magna Charta. Wray Chief Iuſtice gave a Rule that the Sheriffs ſhould make their Return at their perils before ſuch a day.

Hil. 31 Eliz. In the Kings Bench. CLIV. Buſhy and Milfeilds Caſe.

IN Error brought by Buſhy and Milfeild, It was aſſigned for Error, that where in the firſt Action the Iury gave four pence Coſts, and the Court gave de incremento three and twenty ſhillings, that in the Iudgment the four pence was omitted.Error. It was the Opinion of the Court, That for that Cauſe the Iudgment ſhould be reverſed, although it be for the advantage of the Party, ſo where the Iudgment is quod ſit in miſericordia, where it ought to be Capiatur.

Hil. 29 Eliz. In the Common Pleas. CLV. Bingham and Squires Caſe.

BIngham brought Debt upon an Obligation againſt Squire. Obligation. 3 Leon. 151. The Condition was, If Squire did procure a Grant of the next Avoidance of the Archdeaconry of Stafford to be made to the ſaid Bingham, ſo as the ſaid Bingham, at the ſaid next Avoidance may preſent, that then, &c. The Caſe was, That afterwards by the means and endeavour of Squire, the Grant of the next Avoidance was made to Bingham: but before the next Avoidance, the preſent Archdeacon was created a Biſhop, ſo as the preſentment of that Avoidance belonged to the Queen: It was adjudged in this Caſe, that the Condition was not performed, and that by reaſon of theſe words, ſcil. So that Bingham may preſent. And afterwards Iudgment was given that the Plaintiff ſhould recover.

Hil. 26 Eliz. In the Common Pleas. CLVI. Manſors Caſe.

A. Man bound himſelf in an Obligation to make an Aſſurance of Lands the firſt day of Jan. and the laſt day of December, he to whom the Aſſurance was to be made, ſcil. the Obligee, the ſaid laſt day before Sun-ſetting, came to the Obligor with a Deed ready to be ſealed, and prayed him to ſeal it; who ſaid to him that he was a man unlearned, and ſaid he would ſhew the ſame to his Counſel, and then he would ſeal it. And if the Obligation was forfeited or not, becauſe he did not ſeal it preſently▪ was the queſtion: And Fenner argued that it was not; for when a thing is to be done upon requeſt, then he who makes the requeſt, ought to give ſufficient and convenient time to perform the Condition. I agree, That where the Condition is abſolute, there if the Condition be not performed, he ſhall not be excuſed by the default of another. As if a man be bounden to marry A.S. and ſhe will not marry him; or to enfeoff J. S. and he refuſeth, as 3 H. 6. is, the Obligation is forfeited; Yet in theſe Caſes if the Obligee himſelf be the cauſe that J. S. will not take the Feoffment, or he will not marry A. S. the Obligation is not forfeited: So in our Caſe, for by his late requeſt it is impoſſible for me to perform the condition; for before my Counſel ſhall have peruſed it, the time will be paſt. If a man be bound to enfeoff one of Lands in Barwick, requeſt ought to be made ſo long time before, that after that he may go to Barwick. So if one be bounden to pay 1000 l. to J.S. he ought to make his Tender ſo long time before the laſt inſtant of the laſt day, that the mony may conveniently be told. This Caſe was in queſtion. A man made a Feoffment of the Manor of D. with the Appurtenances, to which an Advowſon was appendant, and covenanted that the Manor upon requeſt ſhould be diſcharged of all manner of Incumbrances, and before that the Feoffor had granted the next Avoidance to J. S. the Incumbent died, the Clark of the Grantee was inſtituted and inducted, the Feoffee requeſted the Feoffor to diſcharge the Incumbrance. The opinion of many Sages of the Law was, that he had not made his requeſt within convenient time. So if a man be bounden to infeoff the Obligee to have and to hold to him and his Heirs as long as J. S. ſhall have Iſſue of his Body; If the Obligee demand Aſſurance after the death of J. S. without Iſſue, yet the Obligation is not forfeited. In 22 E. 4. if Leſſee for the life of another continues poſſeſſion for two or three weeks after the death of Ceſtuy que uſe, where he could not have more ſpeedy notice of his death, he ſhall not be a Treſpaſſor. In 15 Eliz it was holden in Wottons Caſe, That where he was bound to make a Feoffment to J. B. and J. B. came to him in Weſtminſter Hall, and tendred to him a Writing, and prayed him to ſeal it. And Wotton ſaid that he would not, that the Obligation was forfeited; contrary if he had not denyed to ſeal it, but had ſhewed the ſame to his Counſel, as in our Caſe. But the Opinion of the Iuſtices was, that the Obligation was forfeited. For when he knew the laſt inſtant of the time, he ought to have had his Counſel there ready with him. Vide the Caſe of Arbitrement 18 E. 4. 21. At another day the Caſe was argued again by Andrews, and he ſaid that the Obligation was not forfeited; For he ſaid it is a Rule in Law, Sic utere tuo, ut alienum non laedas, and in E. 4. a man was bound upon requeſt to relinquiſh and renounce Adminiſtration▪ and there it was holden, that after the requeſt he ought to have convenient time to go to the Ordinary, before it ſhall be ſaid that he had forfeited his Obligation. In 33 E. 3. it is ſaid that if J. S. be bound, That if A B infeoff C. that then he ſhall pay to the Obligee 10 l. Now if the Feoffment be made after Sun-ſetting as it well may be, yet it is ſufficient to ſave his Obligation, if he pay the mony the next day: And 19 H. 6. an Annuity was granted to an Infant until he was promoted to a Benefice, if a Benefice be offered unto him before he be of ſufficient age, and he refuſeth it, the Obligation is not forfeited. If a man be bound to enfeoff and make Livery and Seiſin of the Manor of D to one upon requeſt, and afterwards the Party is made King, in which Caſe he cannot take Livery, now if upon requeſt the Party refuſeth, yet it is no Forfeiture: And it hath been holden here by you all, That if a man unlearned ſeals a Deed which is written contrary to the intent of the Parties, the ſame not being read unto him, by that he ſhall not be bound for ever. But the Opinion of the Court was as before, That the Obligation was forfeited.

CLVII. Paſc. 26 Eliz. In the Common Pleas.

NOte that Mead and Windham (the other Iuſtices being abſent) were of Opinion, That a Copyholder in Fee, who by Cuſtom may ſurrender in Fee, may make a ſurrender in Tail, without any Special Cuſtom to warrant it; and he who may preſcribe to make a Feoffment in Fee, may make a Leaſe for Life, and it ſhall be good, becauſe Omne majus continet in ſe minus.

Trin. 27 Eliz. In the Kings Bench. CLVIII. Trecarram and Friendſhips Caſe.

1 Leon. 287. TRecarram made a Demiſe by theſe words: This Indenture between Trecarram, &c. of the one part, and Friendſhip his W •• e, and their Children lawfully begotten, at the Aſſignment of the ſaid Friendſhip of the other part. The Queſtion was, if L. the Daughter, which the Husband and Wife had at the time of the Leaſe made, was Party to the ſaid Indenture, and ſo took by it. Or if another Son of Friendſhip, which after he made his Executor, ſhould have the Term. Hamon, 30 E. 3. If a Gift be made to Infants of ſuch a man, it is a good Name of purchaſe, and if he hath but one Infant, it is good to him: and ſo in our Caſe, where Friendſhip had Iſſue a Daughter, at the time of the Leaſe, that ſhe ſhould take only; otherwiſe where he had many. And the words, viz. at the Aſſignment of Friendſhip, are mere ſurpluſage, as 20 Aſſ. where a man gave twenty loads of Wood in ſuch a Wood (whereof fourteen he hath of the gift of ſuch a one,) theſe words (whereof he hath of the gift of ſuch a one,) are ſurpluſage. Cook conceived that the Daughter, who was in eſſe at the time of the demiſe, ſhould have the Term: For if a man make a grant to two, as the one of them is not Capax, he who is capable ſhall have the whole. As a Feoffment to J. S. and the right Heirs of J. D. J. D. being alive, J. S. ſhall have the whole. So Aſſ. a gift to a man, and to ſuch a wife which he ſhall have he ſhall have the whole, and the wife nothing: The words At the Aſſignment, &c. are void, for there is not a Perſon able to take at the time of the grant, therefore he ſhall not take afterwards; and becauſe the Daughter is able, ſhe ſhall. Wray Iuſtice, conceived that theſe words, At the Aſſ • gnment of Friendſhip were not void, but that he had reſerved to him liberty to make his Son party, or not; and becauſe he had not aſſigned him, that he took nothing. Ayliffe, If Lands be leaſed to me, my Wife, and William my Son, whereas his Name is John, it is void as to the Son for the Miſnomer, but if he had ſaid Son, without more, it had been good to the Son: and ſo here if he had not mentioned any Aſſignment, then the Daughter ſhould have had it; but contrary by the words of the Aſſignment. Clench, The intent of the parties is to be conſidered: As if I grant to you Common within my Manor of D. it ſhall be conſtrued to be within my Lands commonable, and not in my Orchard: And here it ſhall be intended thoſe Children which he ſhall name when the ſealing was; and if he name others after, it ſhall be void; as a Leaſe to you, and to her who you ſhall take to wife, is void, for there ought to be ſuch a perſon at the time of the commencement of the Deed, which might take. And the Opinion of the whole Court was, That the Defendant, who claimed by the Executor, ſhould have the term, and not the Plaintiff who claimed by the Daughter, and therefore Iudgment was entred, that the Plaintiff nihil capiat per Billam.

Paſc. 24 Eliz. CLIX. The Counteſs of Suſſex and Worths Caſe.

IN 4 and 5 Phil. and Mary, 1 Leon 35. • 3 Leon. 132. Co. 6 Rep. 33. Fitz-williams Caſe. a private Statute was made by which the Manor of Barnham was aſſured to the Counteſs of Suſſex for her Ioynture. Proviſo that it ſhould be lawful for the Earl of Suſſex to make a Leaſe, or Leaſes for 21 years. The Earl made a leaſe for 21 years, and afterwards he made another leaſe for 21 years, within a year before the firſt leaſe ended and the ſecond leaſe was to begin at the end of the firſt leaſe, and if the ſecond leaſe was good, and within the intent of the Act, was the queſtion. Popham Attorney, That it was not: 1. Becauſe it is to begin at a day to come. 2. Becauſe it is made during the firſt leaſe. But it may be objected, that it is ſaid (leaſe or leaſes): It is not the ſenſe of the Act, for by it he might only make leaſes in poſſeſſion, and not in futuro, and ſo 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 intent of the Act, which was made for her advantage. The Lord Treaſurer and W. Mildmay had a Commiſſion to make leaſes for 21 years of the Lands of the Queen, becauſe the Queen ſhould not be troubled with it: They could not make leaſes but in poſſeſſion only by virtue of their Commiſſion; but all others which exceed 21 years, and in Reverſion paſſed by the hands of the Attorney of the Queen, and not by them only by their Commiſſion. 2. Becauſe he cannot make a leaſe upon a leaſe, for by the ſame reaſon that he might make one future leaſe, he might alſo make 20 leaſes in ruturo, and ſo make void the Act: It was Marſhals Caſe upon the Statute of 1 Eliz. of leaſes to be made by Biſhops. The Biſhop of Canterbury made a leaſe for one and twenty years, and afterwards he made another Leaſe for 21 years to begin at the end of the firſt Leaſe. It was holden that the ſecond Leaſe was not good.Leaſes by ſpiritual perſons, as Biſhops, &c. But in the great Caſe upon that point in the Exchequer Chamber, there the ſecond Leaſe was in poſſeſſion, and to begin preſently, and ran with the other; and therefore it was adjudged a good Leaſe, becauſe the Land was not charged with more than with 21 years in the whole; and if it had been ſo done here, it had been good. Wray ſaid that if the ſecond leaſe had been made two or three years before the expiration of the firſt leaſe, then clearly it had been void, but becauſe, but one, two, or three days, or a month before, he doubted if it ſhould be void, or not. The Statute of 32 H. 8. Leaſes made for one and twenty years to be good from the day of the date thereof, and one makes a leaſe to begin at a day to come, and by two of the Iuſtices of the Common Pleas it is good; but the two other Iuſtices held the contrary. Clench Iuſtice, There is no difference, if it be by one Deed or ſeveral Deeds; and therefore he held, that if the Earl had made a leaſe for one and twenty years, and within a year another, it is a void Leaſe, whether it be by one Deed or two Deeds, for he exceeds his Authority: And ſo in the principal Caſe; If there had been no Proviſo, he could not have made any leaſe, therefore the Proviſo which gave him Authority ought preciſely to be performed. At another day it was argued by Daniel for the Leſſee in Reverſion to begin at a day to come, and by him words only are not to be taken or conſidered in a Statute, but the meaning of them, and they are not to be ſevered: Alſo Statute Law is to be expounded by the Common Law, and by the Common Law if one give Authority to another to make leaſes of his Lands, he may make leaſes in Reverſion, becauſe an Authority ſhall be taken moſt beneficially for them for whom it was given. So if one grant an Authority to make Eſtates of his Lands, by that general word, he may make leaſes for years or life, or gifts in tail, Feoffments, or other 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 that Caſe was in the Duchy between Alcock and Hicks. Leaſes. 2. It is good by Statute Law: For the Statute of Richard 2. which gives Authority to Ceſtuy que uſe, to make leaſes, he may thereby make leaſes 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, but the ſaid Statute goes further, and ſays, Proviſo that he ſhall not make a leaſe in Reverſion, vide 19 H. 8. Dyer 357. The Statute of 32 H. 8. of leaſes to be made by Husbands of the lands of their Wives by the general words of the ſaid Statute, they might make Leaſes in Reverſion. But the Statute goes further Proviſo, that there ſhall not be any former Leaſe in being above 21 years before the making of the ſaid Leaſes. In all Caſes of Statutes which are with Proviſoes, the Law upon them ſhall be taken generally, if not in ſuch particulars which are reſtrained by the Proviſo, as here, the Proviſo goes to the ancient Rent to be reſerved, that the Counteſs ſhall have remedy againſt the Leſſees for the ſaid Rent, &c. therefore it is at large in all other points but in theſe: As if the Wife be within age, and ſhe and her Husband joyn in a Leaſe, yet this Leaſe is good by the Statute of 32 H. 8. becauſe the Law is general, and doth not reſtrain theſe Imperfections expreſly: So a Feoffment in Fee with warranty, Proviſo that he ſhall not Vouch; yet that is a reſtraint as to the Voucher only, and he is at large to Rebutt or have warrantia Chartae: A Leaſe for life, Proviſo he ſhall not do voluntary waſte, he is at large to do other waſte, but otherwiſe it were if there were no Proviſo. Therefore a Proviſo makes the words precedent to be expounded more liberally. The words of the Statute of 33 H. 8. cap. 39. of Surveyors, which gives authority to the chief Officer to deviſe, ſet, or let for 21 years, he might have made a Leaſe for 21 years in Reverſion, if the Proviſo had not been. But the words of the Act in our Caſe are demiſe; demiſes therefore ſhall be taken moſt liberally. 3. As to the intent of the Act, this Leaſe is within it, for the intent is to be collected out of the words, and ſhall not be drawn to any private intent againſt the words which ſhould be done here; for by ſuch Expoſition the Earl, his Heirs, Executors, &c. ſhould be prejudiced, and the Counteſs only ſhould be benefited: Alſo Remedy is given to the Counteſs by this Act againſt ſuch Leſſees, that ſhe ſhould have the Rent by Debt or Diſtreſs, as it ſhe had been party or privy, therefore it is reaſon via verſa, that they have remedy againſt her for their Leaſes: Alſo he ſaid that the ſame remedy ſhould be for them as againſt the Earl himſelf if he had lived, therefore they ſhall have remedy againſt her, who might have had it againſt the Earl in his life. Alſo the Statute is to be expounded according to the words, where ſuch Expoſition is not rigorous nor miſchievous. Alſo private Laws are to be expounded by the Letter and ſtrictly, as the Deed of the party, as 14 E. 4. 1. Br. Parliament 16. a particular Act was made that the Chancellor, calling to him one of the Iuſtices, might award a Subpoena between A. and B. and end the matter between them; there, by all the Iuſtices but Littleton, he ſhall not award a Subpoena general, but a Subpoena making mention of the Act, for he ſhall purſue the particular Act ſtrictly, and a common Act for the common profit ſhall be conſtrued largely. Alſo a Statute ſhall not be conſtrued largely by Equity to the overthrow of an Eſtate; as the Statute which gives, That if a Woman conſent to a Raviſher, that the next Heir ſhall enter, if the Daughter entreth, and afterward a Son is born, he ſhall not put out the Daughter, becauſe the Statute ſhall not be drawn to a private intent to the overthrow of an Eſtate veſted before lawfully in the Daughter: Therefore neither in our Caſe the Act ſhall not be drawn to a private ſenſe for the benefit of the Counteſs to overthrow the Leaſe for years; and it is not like to the Caſe which hath been put: If he make a Leaſe for twenty years, and for other twenty years, the ſame is not good by the Act, which Caſe I agree, for that is a Leaſe for forty years. Egerton Solicitor contrary: 1. As to the word Demiſe from diſmiſſion, the ſame is nothing elſe but a letting of the Land. Lo Leaſe is from (Laiſer) a French word, and ſuch a Demiſe at a day to come is an Intereſt of a Leaſe, and not a Leaſe it ſelf, for he hath not let the Land: As if I ſay, I let you my Land for 21 years: When ſhall you have my Land? Shall you have my Land at a day to come, or preſently? If I fell you Land, and Covenant that it is diſcharged of all other Incumbrances than Leaſes for 21 years, and there is a Leaſe to begin afterwards for 21 years. I have broken my Covenant. If I am bound to make you a Leaſe for 21 years, and I ſay to you, I make a Leaſe to you to begin 200 years after, I have forfeited my Obligation. If the cuſtom of a Manor be that Dominus pro tempore may make Leaſes for 21 years, may he make a Leaſe to begin 20 years after? Truly not, if there be not a Special Cuſtom to make it good. If I give authority to my Steward to make Leaſes of my Lands for 21 years, he cannot make a Leaſe to begin at 100 years hereafter. As to the Caſe of the Duchy, there the Condition is that he ſhall make Leaſes according to his diſcretion, therefore there he may make ſuch Leaſes as he pleaſeth. As to the Statute of Richard 2. which enables Ceſtuy que uſe, it is not like to our Act or Statute, for that is, that Feoffments, Eſtates, &c. therefore he may make ſuch Leaſes without doubt. If I deviſe that my Executor ſhall make Leaſes of my Lands for 21 years, he cannot make a Leaſe for to commence 100 years after; and if they do not make them within convenient time, the Heir ſhall avoid their Authority: So the Statute Law hath ſuch Expoſition that the preciſe time ought to be obſerved, as the Statute of 14 E. 3. Cap. 18. 1. Receit to Voucher, 8. If the Tenant vouch to warranty a dead man, and the Demandant will aver that the Vouchee is dead, or that there is none ſuch, there the Averment ſhall be received without more delay. Vpon that Statute the Caſe in 21 E. 3. where one vouched to warranty, and a Summoneas ad Warrantizandum iſſued, and then came the Demandant, and would have averred that the Vouchee is dead, the Tenant ſaid he ought to aver the ſame upon the Voucher to warranty, and that now he had ſurceaſed his time to take advantage of the time; and the Demandant ſaid, That the Statute did not bind him to that, nor preſcribed any time, but left the ſame generally, yet by the Court it was awarded that he ſhould have the Averment the time of the 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, and ſuffers a Common Recovery, according to the Statute of 11 H. 7. cap. 20. 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, and the like, for if there be a mean inſtance between the Recovery and the Aſſent, then any Aſſent after is nothing to the purpoſe; for the Recovery being once void by the Statute, it cannot be made good by aſſent afterwards, Vide Dr. & Student 54. and yet the Statute ſaith, Provided that the Act ſhall not extend to any ſuch Recovery, Diſcontinuance, &c. if the next heir be aſſenting to the ſame Recovery, &c. ſo as the ſame Aſſent or Agreement is of Record or enrolled; and doth not ſay, If the Aſſent ought to 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 were not found by Offices, they ſhould be ouſted and put to their Traverſe. But put caſe that after that Statute a Leaſe to begin at a day to come is not found by Office, ſhall it be aided 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 ſo held in his Reading at Lincolns Inn: The Statute of 1 Eliz. of Leaſes to be made by Biſhops is, that Leaſes other then for 21 years from the time that they begin, that is, when they take effect as a Deed, and when they take effect not to be executed; for ſo they might make infinite Leaſes: Quaere the further part of Egertons Argument in this Caſe; And vide in Cooks 1 part of his Reports, where this Caſe is reported to be adjudged; that the Leaſe made in Reverſion by the Earl was a void Leaſe.

Mich. 29 Eliz. In the Common Pleas.

DEbt brought upon an Eſcape in L. the Defendant ſaid, That he ſuffered him to eſcape in C. by the commandment of the Plaintiff, without that, that he eſcaped in L. It was holden to be no Plea. But in an Action upon a falſe impriſonment in L. he may juſtifie, That he was Sheriff of C. and took him by force of a Writ, without that, that he impriſoned him in L. Rodes Iuſtice. One brings an Action upon an Eſcape in L. and in truth he never was in L. after the Eſcape, in an Action he ſhall recover. Periam and Rhodes, Where the matter of Iuſtification is tied to a place there the place is traverſable. And Rhodes ſaid, There was a Caſe adjudged, in an Action, by Davage, againſt the Mayor of Lynn, where the Defendant juſtified as a ſpecial Iuſtice within the Town, and traverſed the place alledged by the Plaintiff.

Mich. 29 & 30 Eliz. In the Kings Bench. CLXI. Scot and Scots Caſe.

Common Recovery. 2 Leon. 128. 3 Leon. 225. 1 Cro. 73. GEorge Scot the Elder ſued a Replevin againſt George Scot the Younger: The Caſe was this, One Georgo Scot 20 H. 8. being Tenant in Tail of certain Lands, ſuffered a Recovery to the uſe of his laſt Will, and 25 H. 8 by his Will declared. That he willed that the Recoverers make a good and favourable Leaſe to Hugh Scot his younger Brother, and 25 H. 8. they make a Leaſe to Hugh Scot for ninety nine years, reſerving 11 l. 5 s. 8 d. rent payable at the Annunciation and Michaelmas by equal portions, and that to the Recoverers, their Heirs and Aſſigns. And further it was covenanted, that after the death of the Recoverers, the rent ſhould be paid to Ceſtuy que uſe, and his Heirs and Aſſigns, any thing in the Indenture to the contrary notwithſtanding. Proviſo that if the Leſſee make his Heir-male his Aſſignee of the Term, that then he pay the rent to the Recoverers, their Heirs and Aſſigns, and he did not pay the rent to the Heirs of Ceſtuy que uſe, and thereupon was a Diſtreſs and a Replevin. Drew argued for the Plaintiff; and firſt he ſpake to the performance of the Condition, and when a Condition is created, the Law ſays it ſhall be taken favourable for him who is to perform it,Conditions. as 3 H. 7. One is to make Appropriation of ſuch a Church, and he grants a rent out of it, and then makes the appropriation, it was holden that he had performed the Condition. So 27 H. 8. a Leaſe upon condition to ſcowre the Ditches; if he once doth it, it is ſufficient, and he cited another Caſe out of 37 H. 6. As to the creating of a condition, there are ſome words which are conditional of themſelves, as in Litt: Ita quod, ſub conditione, Ad effectum, 38 H. 6. 34. in Caſe of the King: In ſome Caſe (Pro) makes a condition, in ſome Caſes not. Proviſo alſo ſometimes makes a condition, ſometimes it is taken for the enlargement of an Eſtate, 45 E. 3. 8. One had the ward of Land, and of the Body, and granted the ſame to W. P. his Servant, Pro bono ſervitio, and he departed from his ſervice, the other may enter in the wardſhip and land therefore, (Pro) makes a condition. 41 Eliz. One granted an Annuity to another Pro concilio inpendendo, if he doth not give counſel, the Annuity is forfeited for he hath no means to compel him to give counſel, and therefore it is a condition: But in ſome caſes (Pro) doth not make a condition, as if before the Statute of Quia emptores terrarum, one makes a Feoffment of lands pro homagio ſuo, there if the homage be not done, he may diſtrain for it. 9 E. 4. 21. Where Tythes are exchanged for Annuity, or Annuity for Tythes, there it is not a condition. (Si) in the Caſe of Colthirſt is a condition, in ſome other Caſes no condition. (Proviſo) in our Caſe doth not make a condition. 7 H. 6.44. A man made a Feoffment with warranty, Proviſo ſemper, that he ſhould not vouch him nor his heirs. So a grant of a rent, Proviſo that he ſhall not charge his perſon: theſe are not conditions but forepriſes. 9 H. 6. a Leaſe was made without impeachment, Proviſo that he ſhould not do voluntary Waſte; this Proviſo went to a Covenant, and not to the overthrowing of the Eſtate. So if one granted a Manor, Proviſo that his grant ſhall not extend to a Wood upon the Manor, the ſame is not a condition but a forepriſe or exception. 35 H. 8. Br. Conditions 195. Note for Law,Proviſo Condition. That Proviſo ſemper put on the part of the Leſſee, upon the words of the Habendum, makes a condition, but contrary of a Proviſo on the part of the Leſſor; As it is covenanted after the Habendum and after the Reddendum, that the Leſſee ſhall ſcowre the Ditches, Proviſo that the Leſſee carry the Dung to ſuch a place or field, the ſame is not a condition to forfeit the leaſe for not doing of it. Contrary if the Proviſo be put immediately upon the Habendum, which makes the Eſtate, or after the Reddendum. The Caſe 27 H. 8. of Martin Dockery is left at large. In 5 Eliz. there was a Caſe of one Etherel, where the Biſhop of York made a leaſe for years reſerving rent to him and his Succeſſors, Proviſo that during the time of every vacation, the rent ſhould be paid to the Dean and Chapter of York, and it was not paid to them after the death of the Biſhop, during the vacation: It was holden to be no condition, but a limitation. Alſo if the Proviſo here ſhall be a condition, then it is a favourable leaſe according to the will, for a conditional leaſe is not a favourable leaſe. 2. Point. If it be a Condition; yet the Plaintiff ought to recover the rent for which the demand ſhall be, where the Entry is only the moiety of an annual rent, and he demands the whole, therefore his demand is not good; for if a Feoffment be pleaded made by one, and the Deed is ſhewed, by which it appeareth that it was made by many, although he was one of them, yet it is not good, nor warranted by it. Alſo the concluſion which they make doth deſtroy the whole, for it is, Et quia praedict. redditus was not payed, &c. Which was that? the rent of the whole year, ſcil. 11 l. 6 s. 8 d. and that is falſe; for if the moiety was paid, he had no cauſe to enter; but by their concluſion, if all was paid but a penny, yet they might enter, and therefore the Rejoynder is not good. Cook contrary, for the Avowant: he ſaid, It is a condition, and he put this as a general Rule, That where a Proviſo is parcel of the ſentence which contains Covenant, or abridgeth parcel of the Covenant, that it doth not make a Condition, but an Exception. As Litt. a rent granted, Proviſo that he ſhall not charge his perſon, the ſame is not a Condition, becauſe it abridgeth parcel of the Grant, and controuls the Sentence precedent. So 9 H. 6. Proviſo that he ſhall not do voluntary Waſte, for it abridgeth the firſt impeachment of Waſte. So a Feoffment with warranty, Proviſo that he ſhall not vouch, abridgeth parcel of the force of the warranty; for by warranty he may rebut, vouch, or have Warrantia Chartae: Therefore there where it is parcel of the Sentence which contains Covenant, it is not a Condition: and that difference was holden and agreed in the Lord Mountjoyes Caſe. But in our Caſe there is not a qualification of the Sentence, or Covenant contained in the Sentence, nor participant at all with the Sentence, but it ſtands ſubſtantivè, for there was a full Sentence before, and therefore it is not parcel of it. Alſo it varies from the Sentence precedent in the perſon who ſhall pay the rent, and to whom it ſhall be paid, and therefore it is a new Sentence, and ſtrange to the firſt: and it is not like to the Caſe of 9 H. 6. before, Br. Warranty, he ſhall not vouch, for there it controuls the precedent Sentence: But if I make a Feoffment in Fee with warranty, that he ſhall not vouch J. S. who is a ſtranger, there it is a Condition; but if it is that he ſhall not vouch the Feoffor, there it is not a Condition. And the Caſe of the Biſhop of York, was Paſc. 4 Eliz. Rot. 460. Com. Banc. he conceived, that during the vacation, the rent ſhould go to the King, and therefore perhaps he eſpecially limited it to be paid to the Dean and Chapter of York, and there the Proviſo did not make a Condition: For although it was limited to be paid to the Dean and Chapter in the time of the vacation, with a Proviſo, or by way of Promiſe, yet there it is a Condition, for all is one Corporation; for the Dean and Chapter are part of the Corporation to whom it was reſerved before for it was reſerved before to the Biſhop and his Succeſſors. But 15 and 16 Eliz. Andrews and Cromwells Caſe, where John Blunt ſold a Manor to Andrews, and his Heirs, and Blunt covenanted to ſuffer a Common Recovery for the better aſſurance thereof, and afterwards there was a Proviſo, Provided always, That Andrews re-grant the Advowſon which was appendant to the Manor to Blunt for his life; and becauſe there it ſtands ſubſtantivè by it ſelf, therefore it was holden to be a Condition; and yet truly it was not the meaning, that for not granting of a pelting Advowſon, that the whole former Eſtate of the Manor being of great value, ſhould be defeated; yet notwithſtanding, it was holden to be a Condition: and there alſo the Opinion of Br. 35 H. 8. is controuled, That where alſo the Opinion of Br. 35 H. 8. is controuled; that where a Proviſo is jumbled amongſt Covenants, that it doth not make a Condition: Proviſo never makes a Covenant, therefore, either the Sentence ſhall be void, or it ſhall be a Condition. As if a Leaſe for years be made, Proviſo that the Leſſee for years do not commit Waſte, it is no covenant. He ſaid as to the ſecond point, that the ſame was adjudged between Andrews and Cromwel, where a rent was payable every half year, and there, as here, the whole rent was demanded, and it was good, for he is not to pay the one moiety; and he is at his peril to pay the one moiety; and he who denies the whole, denies every part; Et quicquid dicitur de toto, dicitur de partibus. It was adjourned.

Hil. 29 Eliz. In the Common Pleas. CLXII. The Lord Mountjoyes and Barkers Caſe.

IN an Ejectione firmae upon a Special Verdict, the Caſe was this, King Ed. 6. granted the Manor and Hundred of Tremington in Fee, rendring rent, to hold of the Manor of Eaſt Greenwich in Socage, reddendo annuatim 136 l. Queen Mary reciting the firſt Grant; in the firſt year of her reign, granted the rent and fealty and the Manors of Cauford, D. S. Et etiam Manerium noſtrum, & Hundredum de Tremington (although ſhe had not the Manor) to the Marqueſs of Exceter; after which the Marchioneſs being ſeized of the Manor of Cauford holden in Capite, and of other Lands 4 and 5 Philip and Mary, deviſed the Manor of Cauford, D. S. and whereas ſhe had nothing in the Manor of Tremington, but the rent and fealty out of it; ſhe deviſed the ſame with the others to the Lord Mountjoy: and alſo ſhe deviſed divers Legacies and Annuities to her Servants and others. And deviſed by the ſame Will, that they ſhould be levied of the Manor of Tremington, and of the Manors of D. S. whereas D. S. were not Manors but Farms. And one Barker was found Heir to the Deviſor, who claimed to have the third part: The firſt queſtion was. If the rent and fealty here holden in Capite, paſſed by the name of the Manor, or not; and if they paſſed, what quantity paſſed. Walmſley, They do not paſs by that name; for this rent, nec in rei veritate, nec in reputatione, was ever taken for a Manor. Alſo ſhe hath named it in her Will, between thoſe which are very Manors, by which it appeareth, that her intent was not to paſs it, unleſs it was a Manor, as the other, which ſenſe is alſo fortified that they ſhall be levied, parcelled, and taken; by which I conceive her meaning was, that there ſhould be ſome place to which the Deviſees might reſort to levy it. Further, It is taken for Law in Wills; that a thing implyed ſhall not deſtroy a thing expreſſed: But if by implication, the Rent ſhould paſs, then the Manor of Cauford ſhould not paſs, which was her expreſs will to paſs. As 16 Eliz. Dyer 330. where a man deviſeth his Lands to one and his Heirs Males, and if he dye without Heir of his Body, &c. Here he ſhall not have Tail general to the Heirs of his Body, but to the Heirs males of his body, for that was the expreſs limitation, and the other after but implication. So 16 Eliz. Dyer 333. in Chapmans Caſe: But our Caſe is better, for that there are not words ſufficient to warrant any implication, for nec in veritate, nor in common ſpeech was it ever taken for a Manor. 27 H. 6. 2. 22 H. 6. 39. Green Acre may paſs by the name of a Manor, although it be but an Acre of Land, becauſe it is known by ſuch name. In 27 H. 8. a man having ſuffered a common Recovery to his uſe, willed that his Feoffees ſhould ſell, &c. So in Chapmans Caſe, a man in his Will limited a Remainder to his Family, there it is taken, the ſame is a Remainder to thoſe which are his next of Blood. So 41 E. 3. a man deviſeth Land to A. his Daughter, in truth ſhe being a Baſtard, ſhe ſhall have it, becauſe ſhe is known by the name of Daughter. So if there be Grandfather, Father and Son, the Father dyeth and the Son gives Lands to his Father and his Heirs, the Grandfather ſhall have it, for that the Son ſo called him. 19 H. 8. Lands are deviſed to the right Heirs of J. S. who is attainted, having Iſſue a Son, the Son ſhall not have the Land, for the word (Heir) intends one who may inherit, but he cannot, becauſe a man attainted cannot have an Heir: And that is a ſtronger Caſe than our Caſe, in which there is not any affinity with a Manor, for it is but a ſum in groſs, but if it had been an Acre of Land, peradventure it ſhould have paſſed, but being Rent, Common, Eſtovers, or other Profits, they cannot paſs, for they have not any reſemblance to the Mannor; but peradventure a man having a Manor parcel in Demeſn, and parcel in Services if he alieneth his Demeſns, and afterwards deviſeth his Manor, the Services will paſs. Gawdy, All the difficulty of the Caſe is this, If by the Deviſe, the rent out of Tremington ſhall paſs, for if not, then the third part thereof cometh to Barker. And I conceive clearly, That the rent ſhall paſs; for Wills ſhall have a favourable conſtruction according to the intent of the Deviſor, and no part thereof ſhall be void, if by any means it may be made good; for intent then appeareth, that ſomething ſhould paſs out of the Manor of Tremington, for otherwiſe a Clauſe in her Will would be frivolous. For it is preciſely found by the Iury, that neither at the time of the Will, nor at the time of her death, ſhe had nothing of the ſaid Manor of Tremington, but the ſaid Rent of one hundred thirty and ſix pounds. Alſo it may be taken that ſhe who deviſed was ignorant of the Law, and conceived that it was a Manor when ſhe had Rents and Services out thereof, notwithſtanding that, thoſe who are learned in the Law know, that a Manor could not paſs without there was two Suitors at the leaſt, 21 R. 2. Deviſe 27. Lands are deviſed to one for life, the remainder Eccleſiae Sancti Andreae in Holborn, there it is holden in an Ex gravi Querela, that the Parſon ſhould recover, for otherwiſe the Deviſe ſhould be void, if the Parſon ſhould not have the Lands; and in Wills, ſhall ſubſerve and give place to the intent of the Party; and therefore if a man deviſeth, that his Lands ſhall be ſold for the payment of his debts, his Executors ſhall ſell them, and to that intent the naming of them Executors is ſufficient. Plow. Com. 523. in Weldens Caſe it is vouched to be adjudged; that if one after the Statute of 27 H. 8. deviſeth that his Feoffees ſhall be ſeized to the uſe of A. in Fee, that it was a good Deviſe of the Lands to A. and yet then he had not, nor could have any Feoffees, &c. But the Party was ignorant of the Statute, and his intent to paſs the Land was apparent, in that Caſe the words were as much impertinent to the matter, as in our Caſe, for there he had not any Feoffees, as here ſhe hath not any Manor. Br. recites, That in 38 H. 8. it was holden by Baldwin, Shelly, and Morgan, that if a man who had Feoffees to his uſe would, after the Statute of 27 H. 8. that his Feoffees ſhould make an Eſtate to J. S. that the Land ſhould paſs to J. S. 26 H. 8. Feoffments & Faits 12. Land cannot paſs by the Deed of an Houſe, for it cannot be parcel of an Houſe; but an Acre of Land may be given by the name of a Carve, and a Carve of Land by the name of a Manor; and yet a Carve can be no more a Manor, than this rent: yea, Rents and Services more reſemble a Manor, than a Carve of Land. It cannot be intended that her Will was here to paſs the Manor it ſelf, which was not in her, but in another. Alſo ſhe by four years before had the rent, and therefore it ſhall be intended, that it was her meaning to paſs the ſame, which ſhe her ſelf received, and no other thing: and although in the Deviſe the rent be ſpecially named, and the Manor alſo yet the ſame ſhall not alter the Caſe; for if a man grant the Reverſion upon an Eſtate for life, and by the ſaid Deed grants the Land, and the Tenant attorns, and the Grantee deviſeth all his Land, the Reverſion ſhall paſs without all queſtion. If a man grant the Advowſon of D. and in the ſame Deed, the Church and Rectory of D. and the Grantee deviſeth the Rectory of D. the Advowſon ſhall paſs. In Adams Caſe, Plow. Com. 195. a man leaſeth his Capital Meſſuage rendring rent, there the queſtion is, If the Reverſion or Rent ſhall paſs: It was adjudged, That all which he had paſſed. As to that, that it cannot be levied out of the Rent, for that no place is therein of Diſtreſs; I ſay, that ſhe did not know whether a leſſer rent might be paid out of a greater rent, and 1 H 4. Multure was granted reſerving rent, and the Grant was good. The words of the Will are, All which Manors, Lands, and Tenements, &c. ſhe deviſed to the Lord Mountjoy, and theſe words expound her meaning, for although the word (Rent) be not within the word (Manor) yet the words (Lands and Tenements) do comprehend it, and words ſubſequent in Wills may expreſs the Premiſſes. As 16 Eliz. Dyer 333. Chapman ſeized in Fee of two Houſes, having three Brothers, deviſed the Houſe in which A. inhabited to his three Brethren, and A. to dwell there, and they not to raiſe the rent, and deviſed the Houſe in which B. his Brother dwelt to him, and that he pay to C. his Brother 3 l. for to find him at School, and otherwiſe to remain to the Houſe; Proviſo that the Houſes ſhall not be ſold, but ſhall go to the next of the Name and Blood which are Male, and dyed. B. his brother dyed without Iſſue, the eldeſt of the two middle brothers entred, and had Iſſue a Son and dyed. It was a Queſtion, If the Son or the middle brother ſhould have the Houſe: And it was holden that the Son of the eldeſt ſhould have it in Tail, which Expoſition was by reaſon of the words in the Proviſo, that it ſhould not be Sold, and that it ſhould go to the Heirs Males. Shuttleworth, The rent ſhall not paſs by the Deviſe, for the conſtruction of a Will ought to be according to the words, or according to the intent collected out of the words, and not by a thing out of the Will; for then a ſtranger ſhall be the maker of the Will of another: And 19 H. 8. if a Will be doubtful it ought to be expounded for the Heir at the Common Law. And if the rent ought to paſs, it ought to have apt words, and not the name of a Manor. And thereupon he put the Caſe, that where one deviſeth certain Lands to one, and afterwards his Goods, Leaſes, and other things to another: All his Goods and Terms ſhall paſs, but not his Lands, for that there wanteth apt words to paſs them, for the word (other things) ſhall not paſs them, and this ſet order ought to be obſerved, for the avoiding of confuſion: And the Rent and Services ſhall not paſs for the two parts, admitting the words ſufficient, for they cannot be divided: But Periam ſaid, That the rent might be divided. Anderſon ſaid, That it ſhould be but a Rent-ſeck: Periam ſaid it was a Rent diſtrainable of Common Right, but Anderſon doubted of it; but they all agreed that it might be divided, but there ſhould not be two Tenures. Fenner, The Rent ſhould paſs by the Deviſe of the Manor, for there is do difference betwixt a Manor and a Seigniory in groſs amongſt Lay-men; and then their intent ſhall be taken, although it was not written by apt words; for in Grants a Reverſion ſhall be taken for a Remainder, and à Fortiori a Deviſe. And 7 E. 3. a Manor ſhall paſs by the name of a Knights Fee; and 19 H. 8. a Wood ſhall paſs by the name of Land, and 38 E. 3. by grant of totam terram which A. held in dower, the Reverſion ſhall paſs. Afterwards in Mich. Term the Plaintiff diſcontinued his Ation. And Periam told me, I being at his Houſe, that the Opinion of the Court was againſt the Plaintiff, and if it had not been diſcontinued, they would have given Iudgment accordingly: Now this was the intent of the Lord Mountjoy. The Marchioneſs had deviſed all her Lands, and had not left any thing to her Heir, for which Caſe the Heir of the Marchioneſs entred into the third part of the Manor of Cauford (of which the Leaſe upon which the Ejectione firmae was brought, was made by the Lord Mountjoy to Inſley) and into the third part of the reſidue of the whole land, now his meaning was, That if the rent was not well paſſed by the name of the Manor, then the ſame deſcended to the Heir, which was ſufficient for him: For the Special Verdict found alſo, That the rent was the third part of the value of the whole Land of the Marqueſs: So that thereupon it may be collected, That if a man hath three Manors, ſome of them holden in Capite, and of equal value, and he deviſeth two of them, and ſuffereth the third to deſcend, that the Deviſe is good for every part of the two Manors, and the Heir ſhall not have the third part of each Manor.

Paſc. 28 Eliz. In the Common Pleas. CLXIII. Spring and Lawſons Caſe.

ONe recovered in an Ejectione firmae, and afterwards the Defendant made a new Leaſe for years, and he who recovered ouſted him, and he brought an Ejectione firmae: and the other pleaded the former Recovery. It was holden a good bar by all the Iuſtices, but Windham and Periam, and by them the ſame is no Eſtoppel, for the Concluſion ſhall be Iudgment if Action, and not Iudgment if he ſhall be anſwered: And although that it be an Action perſonal, and in the nature of a Treſpaſs, yet the Iudgment is quod habeat poſſeſſionem termini ſui, during which Term the Iudgment is in force, it is not reaſon that he ſhould be ouſted by him againſt whom he recovered, for ſo Suits ſhould be infinite; and by Rhodes an Entry pendent the Writ ſhall abate it.

CLXIV. Hil. 29 Eliz. In the Kings Bench.

AN Action of Covenant was brought againſt one who had been his Apprentice; The Defendant pleaded that he was within age: The Plaintiff maintained his Action by the Cuſtom of London, where one by Covenant may bind himſelf within age: Exception was taken to it, that that was a Departure: For 18 R. 2. an Infant brought an Action againſt his Guardian in Socage, who pleaded that the Plaintiff was within age. The Plaintiff did maintain his Declaration, That by the Cuſtom of ſuch a place an Infant of 18 years might bring accompt againſt his Guardian in Soccage, and it was there holden to be no departure. Wray Chief Iuſtice was of Opinion, that it was no departure; for he ſaid, It ſhould be frivolous, to ſhew the whole matter in his Declaration: viz. That he was an Infant, and that by the Cuſtom he might make a Covenant which ſhould bind him. But Quaere of the Matter, and of his Opinion, for that many learned Lawyers doubted much of it. And vide the Caſe in 19 R. 2. of the Guardian in Soccage.

Mich. 29 & 30 Eliz. In the Kings Bench. CLXV. Savage and Knights Caſe.

ERror was brought upon a Iudgment given in Leiceſter in Debt; Tanfeild aſſigned Error, becauſe in that Suit there was not any Plaint, for in all Inferior Courts the Plaint is as the Original at the Common Law, and without it no Proceſs can Iſſue forth, and here upon this Record nothing is entred; but only that the Defendant Summonitus fuit, &c. and becauſe the firſt entry ought to be A. B. Queritur verſus C. Clench, a Plaint ought to be before any Proceſs iſſueth; and the Summons which is entred here is not a Plaint, and for that Cauſe the Iudgment was reverſed: It was ſaid, That after the Defendant appeared, a Plaint was entred: But it was anſwered, That that did not help the matter, for there ought to be a Plaint out of which Proceſs ſhall iſſue, as in the Soveraign Courts out of the Original Writs.

28 Eliz. In the Common Pleas. CLXVI. Grindal Biſhop of Yorks Caſe.

GRindal Archbiſhop of York made a Leaſe for one and twenty years, another Leaſe for years of the ſame Land being in being, not expired by four years and dyed; and in time of vacation, the Dean and Chapter confirmed it. Clench, It is a good confirmation: A Biſhop makes a Leaſe for years, reſerving the ancient rent but where it was payable at four Feaſts of the year, it is now reſerved payable once in the year, the ſame is within the Letter of the Statute, but not within the intent; the ſame Law, if the Rent before was uſually reſerved to be paid upon the Land, now it is reſerved to be paid at any far remote place. And he ſaid, that although his leaſe was in poſſeſſion, yet not to take effect before the four years of the former Leaſe are expired, cannot be ſaid an Eſtate within the Statute of 1 Eliz. whereby any Eſtate may paſs before the commencement of it; for he to whom it was made, had but a right to have the Land; and he could not ſurrender. And he held that the ſecond Leſſee ſhould pay the rent as well by the Contract as by the Eſtoppel. Periam, At the Common Law a Biſhop, with the Confirmation of the Dean and Chapter, might have made a Feoffment Gift in Tail, and a Leaſe for any Term of years; and he ſpake much, What ſhall be ſaid the Poſſeſſions of a Biſhop: And therefore, if a Biſhop diſſeiſeth another of certain Lands, and makes a Leaſe thereof under the Seal of his Biſhoprick, it ſhall be now his Seal and it ſhall be his election in what capacity he will take, and then this Land is to be reputed parcel of the Poſſeſſion of his Biſhoprick.

Mich. 29 Eliz. In the Common Pleas. CLXVII. Hoo and Hoes Caſe.

JOhn Hoo brought a Writ of Intruſion againſt Richard Hoo, depending which Writ, the Demandant prayed Eſtrepement, and had it, and declared upon it, ſcil. That the Tenant after the Prohibition fecit Vaſtum, Eſtrepementum, in proſternendo, &c. To which the Tenant pleaded, Not Guilty: But the Plea was not allowed by the Court, for there is no Iſſue in this Caſe; but he might to plead Quod non fecit vaſtum, &c. after the Prohibition.

29 Eliz. In the Common Pleas. CLXVIII. Clinton and Bridges Caſe.

DEbt; The Condition was for performance of an Award, which was to pay 10 l. to the Plaintiff, and to do divers other things: The Defendant pleaded Quod perimplevit Arbitrium, and ſhewed how the Plaintiff aſſigned for a Breach, that the Defendant had not paid the 10 l. The Defendant rejoyned that he rendred it to the Plaintiff, and he refuſed it. It was the Opinion of Dyer, that the ſame is a Departure, for in the Bar, the Defendant pleads that he hath performed the Award, and ſhews how; and now in the Rejoynder a Tender and Refuſal, which is not a performance of the Award, although it is not any Breach of it.

29 Eliz. In the Exchequer. CLXIX. The Biſhop of L's Caſe.

Tenures.THe Caſe of the Biſhop of L. the King Lord, Meſne and Tenant, the Meſnalty is holden in chief, and the Tenancy by Knights Service; the Manor eſcheats by Attainder: If the Tenancy ſhould be holden in Chief was the queſtion. Manwood, It hath been holden, that no Tenure in Capite may be, if not by the creation of the King: And he ſaid, that if before the Statute of Weſtminſter 3. the Kings Tenant in Capite had made a Feoffment to hold of him, ſo as now there is Lord Meſne and Tenant; and afterwards the Meſnalty came to the Crown by Attainder, &c. If by the coming of the Meſnalty to the Crown the Seignory Paramount be extinct, then the Tenancy is not holden in Capite; but they have taken a difference where the Meſnalty comes to the Seignory, and where the Seignory comes to the Meſnalty. But he ſaid it was a good Caſe.

29 Eliz. In the Exchequer. CLXX. Pigotts Caſe.

Aſſignment of Debts to the King. PIgott Collector of the Subſidy granted by Parliament holden 28 Eliz. and by reaſon thereof endebted to the Queen, (one B. being indebted to him) aſſigned the ſaid debt to the Queen for parcel of her debt: upon which Proceſs iſſued out againſt B. and now, at the return of the Proceſs, Cooper Serjeant, moved in the behalf of B. that the Aſſignment was not good. 1. There was no ſuch Parliament holden 28 Eliz. 2. No aſſignment of Debt to the Queen is effectual, where the Goods and Lands of the Queens debtor are ſufficient, but here conſtat de claro, that Pigott is ſufficient: As to the matter of the Parliament, the truth is, that the Parliament was begun in October 28. But no Seſſion was then holden, but it was adjourned to Newbury 29 Eliz. But if a Seſſion had been holden, one ought to ſay it was Prorogued. Fenner, There is not any Authority in our Law for ſuch aſſignments of Debt to the Queen. Manwood, The Parliament is October 28 Eliz. and ſo is the Roll, and the Record of the Parliament: The Writs of Parliament were returned in October 28 Eliz. But then the Queen adjourned the Parliament; for there was no Seſſion: and although it was adjourned, yet the firſt day of the Parliament was in October: And ſuch was the Opinion of all the Iuſtices.

29 Eliz. In the Exchequer. CLXXI. The Queen and Paynes Caſe.

AN Information was exhibited againſt Payne Treaſurer of the Records in the Kings Bench, Priviledge. upon the Statute made againſt the buying of Cattle, and he came and demanded Priviledge. Manwood, It hath never been ſeen, that ſuch Priviledge hath been granted againſt the Queen, Vide 21 H. 6.22. in a Decies tantum. by the better Opinion the Party ſhall have the Priviledge. Some ſaid that this is not like to the Caſe where the Queen only is Party, for in ſuch Caſe Attaint doth not lye againſt the Iury which have found for the Queen; contrary where the Suit is tam pro Domina Regina quam, &c. Manwood, The Law is not ſo, for an Attaint lyeth where the Queen alone is Party. Tanfield, who was of Counſel with Payne, ſhewed to the Court a Preſident 29 Eliz. where one tam pro Domina Regina quam, &c. proſecuted a Suit in the City of Oxford, upon a penal Statute, and the Defendant claimed the Priviledge of the Common Pleas, being an Officer there, and by the Award of the Court, the Priviledge was allowed him. Manwood, The Suit upon the penal Statute was in an Inferiour Court. But ſhew to us a Preſident where the Courts are equal.

CLXXII. Mich. 30 Eliz. In the Common Pleas.

A Poor man was ready at the Bar to wage his Law; and upon examination it was found, that the Defendant was indebted to the Plaintiff ten pounds, to be paid at the Feaſt of Chriſtmas; and that upon communication between them it was agreed, that the Defendant ſhould pay to the Plaintiff at the ſaid Feaſt 5 l. in ſatisfaction of all the Debt due to the Plaintiff; and as to the other 5 l. that he ſhould be acquitted of it: Vpon this matter the Iuſtices were clear of Opinion, that the Defendant ought not to be admitted to wage his Law, for notwithſtanding that bare communication, the whole Debt remained due not extinguiſhed by the communication; for 5 l. cannot be a ſatiſfaction for 10 l. but contrary of a collateral thing in recompence of it, &c. And ſatisfaction and agreement, to pay 5 l. before the ſaid Feaſt of Chriſtmas in ſatisfaction of the whole 10 l. Vpon ſuch matter ſhewed, the Court was of opinion, that the Defendant might be admitted to wage his Law.

CLXXIII. Mich. 30 Eliz. In the Common Pleas.

IN a Replevin, the Defendant avowed for damage feaſant: Vpon which Iſſue was joyned and found for the Advowant: and Damages aſſeſſed, and a Retorno Habendo iſſued, upon which the Sheriff returned Elongata: upon which a Withernam was awarded. And now the Plaintiff came into Court, and tendred in Court the Damages aſſeſſed by the Iury,Withernam. and prayed a ſtay of the Withernam, and caſt the mony into Court. But the whole Court was clear of Opinion for the ſtay of the Withernam upon that matter only: becauſe in this Caſe the Plaintiff ought to be fined,Fine for Contempt. becauſe he had eſſoigned his Cattel, which is a contempt, wherefore the Court aſſeſſed a Fine upon him of 3 s. 4 d. and then the Plaintiff had his prayer and requeſt.

Mich. 37 Eliz. In the Common Pleas. CLXXIV. Germies Caſe.

2 Leon. 119. 1 Leon. 87. Aſſets.IN Debt upon an Obligation againſt A. as Executor, the Caſe was, That the Teſtator of A. by his Will appointed certain Lands, and named which ſhould be ſold by his Executors, and that the mony thereof ariſing ſhould be diſtributed amongſt his Daughters, when they had accompliſhed the age of one and twenty years; the Lands are ſold accordingly, and if the monies thereof coming being in the hands of the Executor, ſhould be Aſſets to pay the Debts of the Teſtator, was the queſtion. It was the clear Opinion of the whole Court, that it was not Aſſets, for that that mony is limited to a ſpecial uſe.

CLXXV. Mich. 29 Eliz. In the Common Pleas.

Alien Purchaſer.THis Caſe was moved to the Court; An Alien purchaſed Lands in Fee, the Queen confirmed them to the Alien, &c. Office is found, if the Confirmation ſhould bind the Queen was the Queſtion. Some conceived it ſhould: For by Anderſon Chief Iuſtice, when an Alien is enfeoffed, he takes by the Livery the Fee-ſimple, of which he ſhall be ſeized until Office found, and a Praecipe quod reddat lyeth againſt him. Fenner, An Alien and Denizen Ioyntenants are diſſeized, they ſhall both joyn in an Aſſize, vide 11 H. 4.26. And he ſaid that the wife of the King takes a Husband being an Inheretrix, they have Iſſue, Office is found, the Husband ſhall be Tenant by the Courteſie, which ſee 33 E. 3. Fitz. Traverſe 36. It was argued on the other ſide, That the Eſtate of the Alien is ſo weak, that a confirmation cannot enure upon it for an Alien cannot take, but to the uſe of the King, and cannot be infeoffed to anothers uſe, and if he be, ſuch uſe is void. For there is not a ſufficient ſeiſin in an Alien to carry an uſe. And it hath been adjudged on Forſet Caſe: Where an Alien and the ſaid Forſet were Ioynt-Purchaſers, and the Alien dyed, that Forſet ſhould not have the whole by Survivour, but that upon Office found the Queen ſhould have the moiety, Vide 11 Eliz. Dyer 283.

Mich. 30 Eliz. In the Common Pleas. CLXXVI. Jermine and Arſcots Caſe.

THe Caſe between Jermine and Arſcot was this: A ſeized of Lands in Fee, had Iſſue ſix Sons and one Daughter, and deviſed the Manor of, &c. parcel of his ſaid Lands to J. S. for ninety years, if the ſaid J. S. and G. his Wife, or any of them ſhould ſo long live, the remainder to P. his eldeſt Son, and the Heirs males of his Body, the remainder to his other Sons in tail, the remainder to his Daughter. Provided, That if the ſaid P. his Son, or any of the Sons of the Deviſor, or any of the heirs males of their bodies, ſhould endeavour by any Act or Thing to alien, bargain, or diſcontinue, &c. that then after ſuch attempt or endeavour, and before ſuch Bargain and Sale, &c. were executed, that the eſtate of ſuch Perſon attempting, ſhould ceaſe, as if he were naturally dead, and that then the premiſes ſhould remain and come to ſuch perſon to whom the ſame ought to come, remain, or be by the intent and meaning of his Will, and died: P. levied a Fine of the Manor, he in the next remainder entred, and claimed the Land by force of the Deviſe. This Caſe was this Term argued by Walmeſly Serjeant, that an Eſtate tail cannot ceaſe, for it is an Eſtate of Inheritance; and here is not any limitation, for the Eſtate tail by the meaning of the Deviſor ſhall remain revivable upon the death of the Offender, but a Limitation determines the Eſtate utterly, which is not here: but here it appeareth as well by the meaning of the Deviſor, as by the words of the Deviſe, that the Eſtate tail upon ſuch act ſhould be ſuſpended, and it cannot be reſembled to the Caſe cited on the other ſide 22 E. 3. A Rent granted to one in Fee, and that it ſhall ceaſe during the Nonage of every Heir, the Rent is but ſuſpended between the Parties and Privies to the Gift; as in the Caſe of Littleton of Re-entry and Retainer quouſque; but that a Stranger ſhould re-enter and retain quouſque, that cannot be: And in the Caſe of Scholaſtica reported by Plowden, the Eſtate tail by ſuch Offence is determined by the limitation: But in our Caſe by the meaning of the Deviſor only ſuſpended, ſo our Caſe is not like to that Caſe. Shuttleworth to the contrary; The purpoſe of the Deviſor appeareth to be, the continuance of the Land in the name and Family of the Caries; and as to the difference of ceaſing and ſuſpending of an Eſtate tail, the ſame is not to the purpoſe, for the Tenant in tail himſelf may ſuſpend his Eſtate tail, therefore à fortiori the Donor upon the Creation of the Eſtate tail: As by Littleton: Tenant in Tail grants totum ſtatum ſuum, the Eſtate tail is thereby ſuſpended; and by Anderſon, if in ſuch a Caſe, after ſuch a grant, Tenant in tail levy a Fine in our Caſe, If Tenant in tail offend: and the party to whom the next intereſt is limited enters, and after the Offender levies a Fine to a Stranger, there, although his Eſtate was determined by the offence, yet the Eſtate tail is bound by the Fine. Ad quod caeteri Juſticiarii murmurabant. Tenant in tail hath Iſſue two Sons, the eldeſt in the life of his Father levieth a Fine, and after the Father dieth, the Eſtate tail is bound; contrary if the Father had ſurvived his eldeſt Son: And afterwards in the end of this Term Iudgment was given againſt the Plaintiff, for by the Will here is a good limitation, and an eſtate to ceaſe upon an act, and upon another contingent to be revived, is good enough, Vide 30 E. 3. 7. A Leaſe for life rendring rent, and if the rent he behind, that the Leſſor ſhall return quouſque agreement be made; ſo as a Freehold may ceaſe and riſe again according as the ſame is limited: And all this was agreed by Rhodes, Periam, and Windham; and afterwards Walmſley for the Plaintiff, took an Exception to the Bar, for that the Defendant pleaded Quod Petrus Cary tempore levationis finis praedict. non habet exitum, and doth not ſay, that tempore quo ipſe Henricus clamabat reverſionem praedict. the ſaid Peter had not Iſſue; for he ſaid if Peter had Iſſue, when Henry claimed the Reverſion, nothing had veſted on him by the ſaid claim: But all the Court beſides Anderſon, ſaid, that needed not be, but if the matter had been ſuch, the ſame ſhould come on the part of the Plaintiff. Alſo they ſaid, That the Eſtate was veſted in Henry without claim, and although after the Offence committed, and before claim Peter have Iſſue, yet Henry ſhould retain the Land during the life of the Offender againſt ſuch Iſſue born after the Fine levied: for by the Fine levied the Reverſion veſted in Henry without any claim by force of the ſaid limitation.

CLXXVII. Mich. 30 Eliz. In the Common Pleas.

Alien ſuffers a common Recovery. 9 Co. 141.LAnd was given to an Alien in tail, the Remainder over to another in Fee, the Alien ſuffered a common Recovery, and died without Iſſue: All this matter was found by Office. It was moved, That this Office ſhould have return, ſo as upon the matter, the Alien was not Tenant of the Land at the time of the Recovery ſuffered: But the whole Court held the contrary, and that the Recovery was good, and ſhould bind him in the Remainder.

Mich. 30 Eliz. In the Common Pleas. CLXXVIII. Seixtbark and Percies Caſe.

EJectione firmae of Lands in Knolton and Woodland; the Parties were at Iſſue, and the Venire facias was of Knolton only, and it was found for the Plaintiff. It was ſhewed in ſtay of Iudgment, that the Venire facias was not well awarded, for it ought to have been De vicineto de Knolton & Woodland, which was granted by the Court: And that that defect was not relieved by any Statute, for it is a Miſ-trial, and for that cauſe Iudgment was ſtayed, and a Venire facias de novo granted.

30 Eliz. In the Common Pleas. CLXXIX. The Provoſt of Queens Colledge in Oxfords Caſe.

THe Provoſt, Fellows, and Scholars of Queens Colledge in Oxford, are Guardians of the Hoſpital, and Meaſon de Dieu in Southampton, and they make a Leaſe of Lands parcel of the Poſſeſſion of the ſaid Hoſpital to one Hagel for term of years by the name of Praepoſitus Socii & Scholares Collegii Reginalis in Oxonia Gardianus Hoſpitalis, &c. And in an Ejectione firmae upon that Leaſe, it was found for the Plaintiff. It was objected in Arreſt of Iudgment, That this word (Gardianus) ought to be in the Plural Number (Gardiani) for the Colledge doth conſiſt of many perſons, and every one of them capable; and not like to Abbot and Covent: The Court was all of Opinion that the Exception is not to be allowed, but that as well the Leaſe as the Declaration were both good, for the Colledge is a Body, and as one Perſon, and ſo it is as well Gardianus.

30 Eliz. In the Common Pleas. CLXXX. Greens Caſe.

AN Action upon the Statute of Huy and Cry was brought by Green: The Caſe was,Upon Statute of Hue and Cry. That the Plaintiff delivered to his Servant certain monies to carry the ſame from Briſtol to London, in which journey the Servant was robbed: upon which matter the Maſter brought his Action. It was moved, That the Plaintiff by the Statute of 27 Eliz. c. 13. is not a perſon able to bring this Action, becauſe he was not examined twenty days before the Action was brought, but the Exception was diſallowed, for the Court was clear of Opinion, that the Maſter ſhould not be examined, but the Servant.

CLXXXI. 30 Eliz. In the Common Pleas.

THis Caſe was moved upon the Statute of 1 and 2 Phil. and Mary, cap. 12. The Town of Coventry was within the Hundred of Offley in the County of Stafford; and Queen Mary by her Letters Patents made the ſaid Town a County. And now a Diſtreſs was taken in the reſidue of the ſaid Hundred, and brought into the Town of Coventry, and if that be within the Statute was the queſtion. It was holden by the Court clearly, That now the Town of Coventry is exempted out of the Hundred aforeſaid, and is a thing by it ſelf, and it is a good challenge for the Hundred of Offley, that the Iuror challenged dwells in the Town of Coventry, for now it is not parcel of Offley as to the King: But as to the Lord of the Hundred, the ſaid Town remains parcel of it, notwithſtanding the Queens Grant. And the Citizens of Coventry ſhall do ſuit at the Court of the Hundred; but in an Action upon the Statue of Hue and Cry of a Robbery committed in the reſidue of the Hundred, the Citizens ſhall not be charged.

25 Eliz. In the Common Pleas. CLXXXII. Dolmans Caſe.

A. Seized of a Mannor to which two parts of the Advowſon was appendant, preſented, and afterwards aliened the Manor cum pertinentiis, the Alienee preſented and purchaſed the third part of the Advowſon, and preſented again one J. S. Chaplain to the Earl of Rutland, who had a diſpenſation, and took another Benefice, and was inducted 1 Eliz. and died 11 Eliz. The Queen preſented for Lapſe, and her Clerk was inſtituted and inducted, the Alienee Lord of the Manor died ſeized inter alia; this Manor was allotted to the Wife of Dolman for her part; and he brought a Quare Impedit. It was moved, If Dolman ſhould not joyn in this Quare impedit with her who had the third part; and by Walmſley, he need not, Vide 22 E. 4. 8. By Brian, If an Advowſon deſcend to four Coparceners, and they make Partition to preſent by turns, and the third preſents when the ſecond ought, for that time his preſentment is gone, but when it comes to his turn again, he ſhall preſent; which proves that they are ſeveral Tenants.

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

ONe recovered certain Copyhold Lands in the Court of the Lord of the Manor by Plaint, in the nature of a Writ of Right: It was moved in the Common Bench, If a Precept may be made and awarded out of the ſaid Court for the Execution of the ſaid Recovery, and to put him who recovered in poſſeſſion with the Poſſe Manerii, Poſſe Manerii & Comitatus differ. as in ſuch Caſe at the Common Law with Poſſe Comitatus; it was reſolved clearly that force in ſuch Caſes is not juſtifiable, but by Mandate out of the Kings Courts.

Hil. 29 Eliz. In the Common Pleas. CLXXXIV. Anne Bedingfields Caſe.

DOwer was brought by Anne Bedingfield againſt Thomas Bedingfield; the Tenant brought out of Chancery a Writ de Circumſpecte agatis containing this matter, that it was found by Office in the County of Norfolk, that the Husband of the Demandant was ſeized of the Manor of D. in the County of Norfolk, and held the ſame of the Queen in Chief by Knight Service, and thereof died ſeized, the Tenant being his Son and Heir apparent, and of full age, by reaſon of which the Queen ſeized as well the ſaid Manor as other Manors, and becauſe the Queen was to reſtore the Tenements tam integre as they came to her hands, it was commanded them to ſurceaſe Domina Regina inconſulta: It was reſolved, that although the Queen be intituled to have Primer Seiſin of all the Lands whereof the Huſband died ſeized, yet this writ cannot extend to any Manors not found in the Office, for by the Law the Queen cannot ſeize more Lands than thoſe which are found in the Office, and therefore as to the Land found in the Office, the Court gave day to the Tenant to plead in chief. And it was argued by Gawdy Serjeant for the Tenant, that the Demandant ought to ſue in the Chancery becauſe the Queen is ſeized to have her primer Seiſin. And cited the Caſe 11 H. 4. 193. And after many Motions, the Court clearly agreed, that the Tenant ought to anſwer over, for the Statute of B • gamis, cap. 3. pretends that in ſuch Caſe the Iuſtices ſhall proceed notwithſtanding ſuch Seiſin of the King, and where the King grants the Cuſtody of the Land it ſelf 1 H. 7, 18, 19. 4 H. 7. 1. à multo fortiori againſt the Heir himſelf, where he is of full age, notwithſtanding the Poſſeſſion of the King for his Primer Seiſin, by the Statute of Bigam • s, where the Heir was of full age, there the wife could not be endowed in the Chancery: But now per Prerogativa Regis, cap. 4. Such women may be there endowed, ſi Viduae illae voluerint. And after many Motions the Court Awarded that the Tenant ſhould plead in Chief at his peril, for the Demandant might ſue at the Common Law if ſhe pleaſed, Vide Cook 9. Part Acc.

CLXXXV. Savages Caſe.

ONe Savage was preſented to a Benefice, and afterwards took another, and then purchaſed a Diſpenſation (which was too late) and then was qualified, and afterwards accepted of the Archdeaconry of Glouceſter; and Underhil, who had the Archdeaconry libelled againſt the ſaid Savage in the Spiritual Court. Vide the Caſe reported in the firſt Part of Leonards Reports Sect. 442. Ideo Quaere there.

CLXXXVI. Paſc. 26 Eliz. In the Kings Bench.

HVsband and wife Copyholders for Life, the Husband ſurrendred to the Lord, who granted the Land over by Copy to a Stranger, the Husband dyed, the Wife recovered and entred, and ſurrendred to the Lord, and by Wray, the Stranger to whom the Lord granted it, after the Surrender by the Husband, ſhould have the Land, and not the Lord himſelf againſt his own Grant.

Paſc. 28 Eliz. In the Common Pleas. CLXXXVII. Chomley and Conges Caſe.

CHomley brought Treſpaſs of Aſſault and Battery made to his Wife againſt Cony, and upon the general Iſſue it was found for the Plaintiff: It was moved in Arreſt of Iudgment, that the Action was not well brought, for the ſame being an Action of Treſpaſs done to the perſon of the wife, the Writ ought to be brought and proſecuted in both their Names; for now, if Iudgment be given for the Husband, and he dye before Execution, the Wife to whom the wrong was done ſhould not have Execution, but the Executors of the Husband; and afterwards upon advice the Plaintiff had Iudgment to recover, Vide Cont. 9 E. 4. 51. 38 H. 6. 25.

Paſc. 28 Eliz. In the Common Pleas. CLXXXVIII. Blithe and Colegates Caſe.

Vide this Caſe Reported by Cook 2 Part of his Reports. REplevin by Blithe and Colegate, who made Conuſans as Bayliff to Roger Beckwith Son and Heir of Elizabeth Beckwith for damage feaſant, and upon a Special Verdict the Caſe was, That the ſaid Eliz. was ſeized, and took to Husband Chriſtopher Kenne, and by an Indenture made by the ſaid Eliz. without the aſſent of her ſaid Husband, by the name of Elizabeth Beckwith, bearing date 14 March, 14 Eliz. declareth the uſes of a Fine to be levied &c. 1. To the uſe of the ſaid Elizabeth for life, without impeachment of Waſte, and after to the uſe of the Conuſees for their lives, and after to the uſe of the ſaid Elizabeth and her Heirs: And that afterwards the ſaid Chriſtopher Kenne, before any Fine levied in Feb. 20 Eliz. by Indenture between himſelf and the ſaid Elizabeth his Wife of the one part, and R. W. of the other part, without the conſent of the ſaid Elizabeth declared, that the uſes of the ſaid Fine ſo to be levied, ſhould be to the uſe of the ſaid Chriſtopher and Elizabeth for life, &c. And afterwards the ſaid Fine was levied by the Husband and Wife; and the only Queſtion upon the matter was if the uſes declared by the Wife, or the uſes declared by the Husband ſhould ſtand. It was argued by Shuttleworth Serjeant, that the uſes declared by the Huſband ſhould ſtand, and that the Declaration by the Wife ſhould be rejected, for a Feme Covert is not ſui juris, but is ſub poteſtate v • ri. And therefore • 7 Aſſ. 17. a Feme Covert without her Huſband acknowledgeth a Fine, the Husband ſhall avoid it; and as to the Declaration of the uſes, it is no other thing but the ſhewing of the meaning of the Parties to the Fine, how and in what manner the Land of which the Fine is levied, ſhall be diſpoſed of by the Fine, but ſuch a power cannot be in a Feme Covert: For if an Infant levy a Fine, and declare the uſes by Indenture, the Declaration is void, and the Fine ſhall be to his own uſe, and that was adjudged in the Court of Wards: The ſame Law in caſe of a man of Non ſanae memoriae: and if an Ideot levy a Fine, and declare uſes upon it, the Declaration is void, and the Fine ſhall be to his own uſe, and that Caſe alſo hath been adjudged in the Court of Wards: And by intendment of the Law, every Wife is at the diſpoſition of her Husband, as in a Praecipe quod reddat againſt the Husband and Wife, the Wife makes default, it ſhall be accounted the default of the Husband, for the Law intends that the Wife is ameanable by the Husband. 21 Aſſ. The Husband ſeized in the right of the Wife, made a Feoffment in Fee, and in making of Livery his Wife interrupts him, it was not any interruption or impediment quo minus the Livery operetur, for cui ipſa in vita contradicere non potuit, &c. So in a Praecipe quod reddat againſt the Husband and Wife, the Husband pleads one plea and the Wife another, the Plea of the Husband ſhall be admitted, 33 H 6. 43. 89 Aſſ. 1 And the Husband may in ſome caſe prejudice his Wife in point of Inheritance, as by Ceſſion, Vide E. 4 2. Fitz. Cui in vita 22. And he argued much upon the ground, where it ſhall be ſaid the folly of the Wife to take ſuch a Husband: If the Husband be ſeized in the right of his Wife they ſell the ſaid Land, and for Aſſurance levy a Fine to the Vendee, now the Husband alone ſhall have an Action of Debt for the mony upon the Sale which proves that it is the Sale of the Huſband alone, which ſee 48 E. 3. 18. Fenner Serjeant contrary: And firſt he confeſſed that the Declaration by the Wife is utterly void and alſo the Declaration by the Husband; and therefore when the Husband and Wife levy a Fine the Conuſee in judgment of Law is in by the Wife, and not by the Husband, ſo as the Husband as to the right is a Stranger to the Land, and to the Eſtate which paſſeth by the Fine, although he be Party to the Fine, for that is not for any Intereſt which he hath in the Land, but for the conformity of Law, which diſables a Wife to levy a Fine without her Husband, and therefore it is not any reaſon that the husband alone ſhall be received to declare the uſes, for he is no Proprietor of the Land in right eſpecially, foraſmuch as in account of the Law, the whole paſſeth from the Wife: And the Law in divers Caſes frames its Iudgment according to the poſſeſſion of the Wife, and that in acts done by the Husband 14 H. 8. 6 where A ſeized of a Rent-charge in Fee iſſuing out of the Land of the Wife, A releaſes the Rent to the Husband and his Heirs, the ſame ſhall enure to the Wife, Vide 38 E. 3. 10. From ſuch Caſes the Law reſpects the nature of the Seiſin and the manner of the poſſeſſion. And as to the Caſe vouched out of Dyer 12 Eliz. where the Husband and Wife were ſeized of a Meſſuage to them, and to the Heirs of the Husband, they ſuffer a common Recovery, and the Husband alone declareth the uſes, the ſame is good, for in that Caſe the Fee was in the Husband, and always he who hath the Fee ought and may declare the uſe, if all who have intereſt will not joyn, and therefore if Lands be given to two, and to the Heirs of one of them, if they both joyn in a Fine he which hath the Fee may by himſelf declare the uſes: But if there be two Ioyntenants in Fee, they both ought to joyn in the Declaration of the uſes, or otherwiſe make ſeveral Declarations of their ſeveral Moieties. So if Ceſtuy que uſe and his Feoffees joyn in a Fine, and make ſeveral Declarations, the Declaration of the Feoffees ſhall ſtand, for that the Land paſſeth from them. So if Ceſtuy que uſe and his Feoffees make a Feoffment in Fee 21 H. 7. And to that purpoſe he put the Caſe reported by Plowden 15 Eliz. 464. Husband and Wife ſeized in right of the Wife, they levy a Fine ſur Conuſans de droit come ceo, &c and the Conuſee renders the Land to the Husband and Wife, and to the Heirs of the Husband, the Husband dieth, the Wife diſcontinues the Land, the ſame is not within the penalty of the Statute of 11 H. 7. For notwithſtanding the Wife be now in by the purchaſe of her Husband, yet that purchaſe is not within the meaning of that Statute, becauſe the Law reſpects the original Seiſin which was in the Wife, and ſo it was adjudged. Vide Term. Mich. 30 Eliz.

Paſc. 25 Eliz. In the Kings Bench. CLXXXVIII. The Earl of Northumberlands Caſe.

THe Earl of Northumberland brought Debt for Arrearages upon Account. The Defendant ſhewed, that before the ſaid Account, the Plaintiff of his own wrong impriſoned the Defendant, and he ſo impriſoned, aſſigned Auditors, and ſo the Account was made by Dureſs. It was holden a good Plea by the Iuſtices of both Benches.

Paſc. 25 Eliz. In the Common Pleas. CLXXXIX. Clark and Kemptons Caſe.

IN Ejectione firmae the Caſe was,1 Leon. 141. Smith and Burds Caſe. Co. 10 Rep. 129. b. Payment of Rents. The Defendant leaſed for years to the Plaintiff, rendring rent, payable at Michaelmas, and the Annunciation, or fourteen days after. Et ſi contingat the ſaid rent to be behind poſt aliquod terminorum vel feſtorum praedictorum in quo ſolvi debet by the ſpace of 14 days, poſt aliquod feſtum praedict. that then, &c. It was adjudged in this Caſe, that the Leſſee had fourteen days after the ſaid fourteen days mentioned in the Reſervation without danger of the penalty of the condition, and the laſt words poſt aliquod Feſtorum praedict. for the contrariety ſhall be rejected.

Paſc. 31 Eliz. In the Kings Bench. CXC. Harris and Whitings Caſe.

DEbt upon an Obligation by Harris and his Wife, as Executors of Giles Capel againſt Whiting, the Condition was that if the Obligor before the Feaſt of Pentecoſt pay ſuch a ſum, ſo as the Obligee be ready at the payment thereof to enter into a Bond of 200 l. with Sureties to purchaſe ſuch Land, &c. that then, &c. The Defendant pleaded that he was ready to pay, &c. and that the Obligee was not ready to enter into ſuch Bond ut ſupra. The Plaintiff Replicando ſaid, that he was ready abſque hoc, that the Defendant was ready to pay. It was moved that the Traverſe was not good, for the firſt Act here was to be done by the Obligee, viz. to enter into the Bond, ut ſupra, for otherwiſe the Obligor had not any means to compel the Obligee to enter into it. But by Wray Chief Iuſtice, the firſt Act is to be done by the Obligor, and at the Payment the other party is to do that which to him belongs to do.

Trin. 29 Eliz. In the Kings Bench. CXC. Ralph Morris Caſe.

RAlph Morris and his wife libelled againſt one in the Eccleſiaſtical Court, for that the Defendant called the Wife of the Plaintiff Veneficam, Sortilegam, & Incantatricem Daemoniorum. And now came the Defendant into the Kings Bench, ſurmiſing that the matter of the Libel is determinable by the Law of the Land, and thereupon prayed a Prohibition; and it was holden, that although the Offence of Witchcraft be in ſome caſes puniſhable in our Law, yet the ſame doth not take away the Iurisdiction of the Eccleſiaſtical Law; and to call one Witch generally, an Action doth not lye in our Law, as it hath been adjudged. But to ſay He hath bewitched ſuch a one, an Action doth lye: And by Wray, Witchcraft, which is made Felony by any Statute, is not puniſhable by the Eccleſiaſtical Law; but in caſe of Slander upon ſuch a Witchcraft, ſuch ſlanderous words are of Eccleſiaſtical Iurisdiction; and for Witchcraft which is not Felony, the Eccleſiaſtical Court ſhall puniſh the party; and afterwards in the principal Caſe a Conſultation was awarded.

Trin. 29 Eliz. In the Common Pleas. CXCI. Tyrrels Caſe.

TYrrel Warden of the Fleet of an Eſtate of Inheritance, let the ſaid Office for years and afterwards is condemned in London in many Actions of Debt, and is there detained in Execution for the ſum of fourteen hundred pounds, and now one Iden ſued the ſaid Tyrrel in the Common Pleas, in an Action of debt for 50 l. and had Iudgment to recover, and thereupon the ſaid Tyrrel is brought to the Bar, and Iden prays he be committed to the Fleet in Execution for his Debt. It was firſt moved by the Court, if there was not a practize between Iden and Tyrrel for to deliver him out of the Compter in London to a more eaſie Priſon &c. But it was moved by Fenner, who was of counſel with the Creditors in London, that it ſhould be very dangerous to commit Tyrrel Priſoner to the Fleet, becauſe he had the Inheritance of Cuſtody of the ſaid Priſon, and if the Leſſee under whoſe guard he ſhall be, ſurrenders his Intereſt; or if he doth not pay his Rent, ſo as in default thereof Tyrrel re-enter, or if that the Term expire before that the Creditors of Tyrrel be ſatisfied, then here is an Eſcape and diſcharge of Execution, and we are without remedy. But as to that it was ſaid by Rhodes, Windham, and Anderſon, That if the Leſſee ſurrender it ſhall be an Eſcape in him, and he ſhall anſwer for the ſame. Afterwards by Order of the Court Tyrrel was committed to the Fleet in Execution, and the Sheriffs of London diſcharged.

Mich. 29 Eliz. In the Common Pleas. CXCII. Owen and Morgans Caſe.

THe Caſe between Owen and Morgan which was agreed Trin. 29 Eliz. was this, Richard Owen was ſeized of,Ante 26. Poſt 222. &c. and levied a Fine to Owen and Morgan, and to the Heirs of Owen, and they granted and rendred the ſaid Land to the ſaid Richard and Lettice his Wife (not Party to the ſaid Writ of Covenant, nor to the Conuſans) and to the Heirs of the body of the ſaid Richard, the Remainder over to the ſaid Owen now Demandant in Fee: The Husband alone without the Wife ſuffered a Common Recovery, the Wife died, the Husband died without Iſſue. If this Recovery by the Husband only ſhould bind the Remainder, was the Queſtion: And now the Lord Anderſon declared openly in Court for himſelf, and in the name of his Companions, the other Iuſtices, that the Demandant ought to have Iudgment, & that the ſaid Recovery ſhould not bind the Remainder: But firſt he ſpake to the Fine it ſelf, for the Wife is not named in the Writ of Covenant, nor the Conuſans but in the Render, the Land is rendred to the Husband and Wife, and the Heirs of the body of the Husband, and he ſaid a Scire facias did lye upon the Fine well enough, for the Fine is not void, but only erroneous, and being in its force, this Writ doth well lye. And he cited to this purpoſe 7 E. 3. Fitz. Sc. fac. 136. where upon ſuch a Fine levied, and ſuch Exception ut ſupra taken to it: To which it was ſaid by Herle, that foraſmuch as the Fine is excepted, and yet in its force, we ought to grant Execution, and alſo 30 H. 6. none can take the firſt Eſtate in the Fine but he who is named in the Writ of Covenant, but every Stranger may take by way of Remainder, and ſuch was the Opinion of the whole Court: As to the matter in Law all the Court agreed, That notwithſtanding the Recovery the Demandant ſhould have Execution, for here the Land which by pretence of the ſaid Recovery, ſhall be Recoverd in value, cannot go to the Eſtate which is given, for the Eſtate given was to the Husband and Wife, and the Heirs of the body of the Husband, and then the Tenant againſt whom the Recovery was had was impleaded as ſole Tenant, in which Caſe the Vouchee, when he comes in, is to warrant a ſole Eſtate, but not another, but now the Land to be recovered in value ſhall go to the Husband alone, and the Wife ſhall have nothing, ſo as the true Eſtate is not warranted and ſo not anſwered: And he cited the Caſe of 38 E. 3. 5. in a Formedon, the Tenant vouched himſelf for to ſave the tail, and ſhewed that one A. was ſeized, and gave the Land in Demand, to the now Tenant, and to E. his Wife in tail, which E. is now alive, and by award the Voucher was diſallowed. Becauſe it was there ſaid by Knevyt, the Recovery in value cannot be according to the gift, 45 E. 3. 18. Tenant in tail diſcontinues, and takes back an Eſtate in Fee, is impleaded, and voucheth the Donor, he ſhall be ouſted of the Voucher, for that he is in of another Eſtate, and afterwards the Plaintiff had Iudgment to have Execution.

Mich. 33 Eliz. In the Common Pleas. CXCIII. Foles and Griffins Caſe.

DEbt upon Obligation by Foles againſt Griffin; the Condition was That if the Obligee may enjoy certain Tythes demiſed to him by the Defendant, during his Term, againſt all Perſons paying yearly the Rent of three pound, that then, &c. To which the Defendant ſaid, that the Plaintiff did not pay the ſaid Rent, &c. Beaumont Serjeant moved that the Plea is not good, but he ought to ſay, that the Plaintiff enjoyed the Tythes until ſuch a Feaſt, at which time ſuch Rent was due, which Rent he did not pay, for which &c. Quod Curia conceſſit.

Mich. 33 Eliz. In the Kings Bench. CXCIV. Young and Taylors Caſe.

IN Debt upon an Obligation upon Condition to perform the Arbitrament: (the Obligation was laid to be made in the Pariſh of Bow in London) and the ſubmiſſion was of all things depending between them; ſo that they made an Award of the premiſſes before ſuch a day: and ſaid further, that no Arbitrament was made. The Plaintiff Replicando ſaid, that the Arbitrators made an Award in the Pariſh of Pancras in Warda praedict. and layed a breach, &c. The Defendant rejoyned, that 300 l. was depending in Controverſie between them for a certain thing of which no Arbitrament was made: upon which they were at Iſſue, and tryed by a Viſne of the Pariſh of Bow only, which paſſed for the Plaintiff. It was moved in ſtay of Iudgment, That the Trial was not good, for no place is alledged where the Controverſie of 300 l. is depending▪ for which cauſe it ſhall be tried where the Bond and Arbitrament was made; to which it was ſaid, That the alledging the place where the Arbitrament was made is ſuperfluous; for which Cauſe the Trial is good: And alſo the Submiſſion being conditional, the Award ought to be of all things ſubmitted, or elſe it is void; contrary if it be no Condition, Vide Cook 8 Part, Baſpoles Caſe.

Mich. 32 Eliz. In the Common Pleas. CXCV. The Queen and the Biſhop of Lincolns Caſe.

THe Queen brought a Quare Impedit againſt the Biſhop of Lincoln and others: And the Caſe was, That F. Biſhop of Lincoln, Predeceſſor of the Defendant, was Patron of the Church and preſented to the ſame, being void, one Garth, who being inducted, took another Benefice, by which, by reaſon of the Statute of 21 H. 8. the firſt Benefice became void, and remained void by the ſpace of ſeventeen years, whereupon the Queen was entituled to preſent to the ſame by Lapſe. The ſaid F. then Biſhop preſented to the ſame, and afterwards was tranſlated to Wincheſter, and the Defendant, now Biſhop, was ſuffectus. And he certified into the Exchequer, that the Incumbent preſented by the ſaid F refuſed to pay his Subſidy, upon which he was deprived; and if now the Queen ſhall preſent by reaſon of her Title by Lapſe, notwithſtanding the plenarty after, or if the Title by Lapſe of that Preſentment of the Biſhop was, &c. was a great Queſtion: And the Caſe late adjudged between Beverly and Cornwel was cited; but there the Caſe was, that the Clark preſented (where the Preſentment appertained to the Queen by Lapſe) died, but here he is deprived, which may be the Covin betwixt the Ordinary and him. Fenner argued to the contrary, and put divers Caſes to prove that the Prerogative of the Queen did not alter the right of the Parties; As the Queen hath a Seignory conſiſting of Homage, Fealty, and Rent, and the Queen grants the Seignory to a Stranger, reſerving the Rent, and afterwards the Tenancy Eſcheats, the Rent is gone: The Queen leaſes for years, rendring rent to a Stranger upon Condition, who enters upon the Leſſee, the Condition of the Queen is ſuſpended. The Queen purchaſeth Lands in Borough Engliſh hath Iſſue a Son, and dyeth ſeized he hath the Land now by deſcent; afterwards a younger Son is born, that Land ſhall be diveſted out of the poſſeſſion of the King, and the Royalty of his perſon doth not alter the right of deſcent: And afterwards, foraſmuch as the ſame deprivation is the act of the Incumbent, the refuſal the act of the Ordinary himſelf, the ſentence and not the act of God in the caſe before cited. It was the Opinion of the Court, That Iudgment ſhould be given for the Queen.

CXCVI. Windham and Meads Caſe.

WIndham brought an Action upon the Caſe upon the Common Law of England concerning Hoſtlers: The Caſe was, That the Servant of Windham brought his Maſters horſe to the Inn, and there it was ſtollen. To which the Defendant ſaid, That the ſaid Servant brought the ſaid Horſe to the ſaid Inn to be put to Paſture, and thereupon the ſaid Horſe was put to graſs, and was there ſtollen; it was ruled in that Caſe that the Inn-keeper ſhould be excuſed: but if the Inn-keeper of his own head, without direction of the Owner, or his Servant, had put the Horſe to graſs, and afterward the Horſe is ſtollen, there an Action upon the Caſe doth lye.

Trin. 29 Eliz. In the Common Pleas. CXCVII. Neals Caſe.

IN a falſe Impriſonment by Neal againſt the Mayor, Sheriffs, Citizens and Commonalty of the City of Norwich; the Original Writ was directed to the Coroners of the ſaid City. And Exception was taken to the Writ, becauſe it was not directed to the Sheriffs of the ſaid City, but to the Coroners. Sed non allocatur, for the Sheriffs are parcel of the Corporation, as it is to ſee by the name by which they of Norwich are incorporated. And alſo it hath been adjudged, That a Sheriff cannot ſummon himſelf, and therefore by the Award of the Court, the Writ was allowed to be good.

Trin. 29 Eliz. In the Common Pleas. CXCVIII. Sir John Bromes Caſe.

SIr John Brome 33 H. 8. acknowledged a Fine of certain Lands, the Kings Silver was entred, and the Conuſans taken; but the Fine was never engroſſed, and now he who claimed under the Fine came in Court, and prayed that the Fine might be engroſſed, and the Court examined them upon their Oaths, to what uſe the Fine was levied, and in the Seiſin and Poſſeſſion of what perſons the Lands whereof the Fine was levied had been after the Fine? Vpon which Examination it appeared fully to the Court, that the Party to whom the Fine was levied, was ſeized after the Fine, and ſuffered a Common Recovery of the Land, and that the ſaid Land had been enjoyed according to the ſaid Fine at all ſuch times ſince, &c. Whereupon the Court commanded that the Fine be ingroſſed. Vide Acc. 8 Eliz. Dyer 254.

Trin. 29 Eliz. In the Exchequer. CXCIX. The Lord Dacres and Philip Fines Caſe.

THe Caſe between the Lord Dacres and Fines was Tenant in Tail in remainder upon an Eſtate for Life of Lands holden in Capite, levied a Fine thereof without Licence;3 Leon. 261. and Proceſs iſſued againſt the Tenants for Life; It was holden by all the Barons, that by Plea he ſhould be diſcharged; it was holden, That if the Conuſor had any other Lands ubicunque in Anglia, the Fine for Alienation ſhould be levied upon them. But it was moved, If the Tenant ſhould be driven to plead it, becauſe it appears upon Record that the Conuſor was but Tenant in Tail in Remainder, and that was in an Office containing ſuch matter which was pleaded by another in another Cauſe before, by which Office it appeared, that the Lord Dacres was Tenant in Tail, the Remainder in Tail to Philip Fines; and now Fines had levied a Fine ſur Conuſans de droit, &c. and becauſe the ſame appeared on Record, Manwood awarded that the Proceſs againſt the Tenants of the Lord Dacres ſhould be ſtayed.

Trin. 29 Eliz. CC. Paſton and Townſends Caſe.

IN Treſpaſs by Paſton againſt Townſend, The Defendant pleaded that Tindal was ſeized in Fee by proteſtation and dyed ſeized, and the Land deſcended: To which the Plaintiff replyed, and ſaid &c, abſque hoc that Tindal was ſeized in Fee, upon which they were at Iſſue. On the part of the Defendant to prove the Iſſue, it was given in Evidence to prove the Iſſue in his right, that the ſaid Tindal long time before his death was ſeized, and aliened, and never after was ſeized: It was ſaid that that Evidence did not prove the Iſſue for the Defendant, for the Seiſin in Fee intended in the Iſſue is in the nature of a dying ſeized; and ſo Periam conceived that the Defendants Plea did not intend any other Seiſin, a dying ſeized, and the dying ſeized is taken by Proteſtation, to avoid the doubleneſs. So as the Seiſin upon which the Iſſue is taken ought to be intended a Seiſin continuing until the time of the death of Tindal, and Seiſin at large, or a general Seiſin at any time during the life of Tindal, quod Anderſon conceſſit.

Trin. 29 Eliz. In the Kings Bench. CCI. Griffith and Prices Caſe.

ERror by Griffith againſt Price, upon a Iudgment in Cheſter in Ejectione firmae, and the Error aſſigned was becauſe the Original bore date 16 April, 28 Eliz. and the Plaintiff declared of an Ejectment 17 April, 28 Eliz. So as it appeareth, that the Action was brought before there was any cauſe of Action: and that was holden to be Error: And alſo Ejectione firmae is not a perſonal Action; and afterwards the Iudgment was Reverſed.

Trin. 30 Eliz. In the Kings Bench. CCII. Harris and Caverleys Caſe.

A Iudgment was given in London between Harris and Caverley upon the Statute of 5 E. 6. for buying of Woolls; and upon that Error was brought in the Kings Bench, quod nota, For this Writ of Error upon a Iudgment given in London ought to be ſued before the Maior, Vide • N. B. 22, 23. And Wray asked, Wherefore the Writ of Error was brought here. To which it was anſwered by Dodding Clark, that the Record was removed by Certiorari out of the Kings Bench at the Suit of the Defendant, to the purpoſe to bring a Writ of Error, quod coram vobis reſidet. And the Error was aſſigned in this, that by the Statute of 18 Eliz. cap. 5. it is enacted, that upon every Information that ſhall be exhibited, a ſpecial Note ſhall be made of the Day, Month and Year of the exhibiting of the ſame into any Office, or to any Officer, who lawfully may receive the ſame: And here upon this Information there is not any ſuch Note, according to the ſaid Statute: And in truth, no Information may be exhibited, for there is not any Officer there appointed for that matter, for the entry in ſuch Caſes in that Court is, Talis venit & deliberavit hic in Curia Miloni Sands, &c. But in the Caſe at Bar, the Entry is, Talis venit & deliberavit in Curia, but without ſhewing to whom. (But note that the words of the ſaid Statute of 18 Eliz. are in the disjunctive, into any Office, or to any Officer) and that ſuch Information ſhall not be of Record but from that time forwards, and not before, wherefore here this Information is not upon Record and then no Iudgment can be given upon it. Cook, This Information may be well ſued in London, for the words of the ſaid Statute of 5 E. 6. give Suit in any Court of Record of the King: And the Court in London is a Court of Record of the King, and every Court of Record hath an Officer to receive Declarations and Pleas, and if it be delivered into the Office, it is good enough. 2. The Offence is laid in the Pariſh of Bow in Warda de Cheap, & alibi in Civitate London, and ſo there is not any place laid where the Offence ſhall be tryed. Cook, This Alibi is a Nugation.

Trin. 31 Eliz. In the Kings Bench. CCIII. Peuſon and Higbeds Caſe.

IN Aſſumpſit, the Plaintiff declared, that in conſideration that he by his Servant had delivered to the Defendant two Bills of Debt amounting to the ſum of 80 l. Solubiles eidem querenti to be received by the Defendant at Roan in Normandy, to his own uſe, the Defendant promiſed to pay to the Plaintiff 60 l. and upon this matter Iudgment was given; and now a Writ of Error was brought and aſſigned for Error, becauſe it is not ſhewed in the Declaration that the Bills were ſealed, or that they were made to the Plaintiff, and here is not any conſideration, for the Defendant hath not any remedy to compel the Parties to pay the ſaid debts if they refuſe. Godfrey, If the mony be not paid at Roan to the Defendant, he ſhall have an Action upon the Caſe, for this is an Aſſumpſit in Law, which Wray conceſſit, for it is a mutual promiſe and agreement: And it was argued to the contrary, that here is not any ſufficient conſideration, for it doth not appear that the Defendant hath any remedy for to recover the mony. And 13 Eliz. it was holden, that where the Plaintiff declared in an Action upon the Caſe, that in conſideration that he had delivered a Bill of Debt to the Defendant, and hath made a Letter of Attorney upon it, &c. the Defendant promiſed to pay to the Plaintiff 20 l. and becauſe that the Plaintiff (notwithſtanding that) might releaſe the debt, or revoke the Letter of Attorney, and ſo defeat the Defendant of the whole profit, &c. that the Action upon the matter did not lye: Alſo for another cauſe the conſideration is not ſufficient, for it is illegal becauſe maintenance; but if it was upon the conſideration precedent it had been good enough: As if J be indebted to A. and B. is indebted to me, J. may aſſign to A. the debt which B. oweth me. Golding, Although the conſideration be but of ſmall value, yet it is good enough. And if A. in conſideration B will aſſure to him the Manor of D. promiſe to pay to B. 100 l. although the Party hath not any intereſt or title to it, yet it is good, and alſo though the conſideration be Executory, yet it is valuable, for if the mony be not paid at Roan, the Defendant ſhall have an Action upon the Caſe againſt the Plaintiff: It was alſo objected that upon the Declaration it doth not appear that the Defend. if the two Bills be not paid, may have an Action upon the Caſe againſt the Plaintiff, for there is not any expreſs Aſſumpſit on the Plaintiffs part, that the monies due by the Bills to the Plaintiff ſhall be paid to the Defendant, for if it had been ſo, then it had been good, for then there had been a reciprocal promiſe which is not here, nor can be collected by any words in the Declaration. Cook, It doth not appear upon the Declaration by whom, nor to whom the mony due by the two Bills, ſhall be paid, for it may be that they are due to the Defendant and then the delivery of the two Bills is not any conſideration, Quod Clench & Gawdy conceſſerunt. The Caſe was adjourned.

CCIV. Temps Roign Eliz.

THe Caſe was, A. enfeoffed B upon Condition that if he pay ten pound to the Feoffee, his Executors and Aſſigns, within three years next enſuing, that then, &c. The Feoffee hath Iſſue three Sons, whom he makes his Executors, and dyeth before the day of payment. The Ordinary commits Letters of Adminiſtration to J. S. during the minority of the Executors. It was the Opinion of Dyer, that it was the ſureſt way for A. to pay the monies to the Executors no withſtanding the adminiſtration committed to another, for the Adminiſtrator in ſuch Caſe is but a Bailiff or Receiver to the Executors, and ſhall be accountable to them; which Harper conceſſit: And Manwood ſaid, That if in that Caſe the monies be paid to one of the Executors, it is ſufficient; and the monies to be paid upon that conditional Feoffment, are as a ſum in groſs, and not in the nature of a Debt, quod caeteri Juſticiarii conceſſerunt.

CCV. Temps Roign Eliz.

A Leaſe is made of certain Lands for years, Proviſo that the Leſſee ſhall not put his Cattel upon the Land from Michaelmaſs to St. Andrews Tide, the Queſtion was, If this Proviſo and Reſtraint ſhall reach for the whole Term, or but to the firſt year. Dyer, Conditions are ſtricti juris, and ought not to have liberal conſtructions; therefore he conceived, that the condition ſhould be reſtrained to the firſt year, and ſhould not further extend. Manwood, If I be bound that I will not go to London between Eaſter and Michaelmas, it ſhall not extend only to the firſt year after the date of the Obligation, but for my whole life.

Hil. 32 Eliz. In the Common Pleas. CCVI. Doughty and Prideaux Caſe.

ACtion upon the Caſe by Doughty againſt Prideaux upon theſe words, Thou art a wicked and perjured Fellow, 3 Leon. 269. and art forſworn in the Court of Star-Chamber, as it appeareth by an Exemplification here under the Seal of that Court: The Defendant juſtified by reaſon of a Bill exhibited in the ſaid Court, by one Brooks againſt the now Plaintiff, for conſpiring with another to endite the ſaid Brook of certain Felonies, and the Defendant, now Plaintiff in his anſwer to his ſaid Bill denied upon Oath the ſaid Conſpiracy, and Sentence was given in the ſaid Court againſt the now Plaintiff, ubi revera, ſuch Conſpiracy was. The Plaintiff by Replication ſaid, That the ſaid Brook was arraigned and endicted upon the ſaid Indictment, and prayed his Clergy, whereupon it appeared, that the ſaid Brook was not legitimo modo acquiet'; and the ſame can be no Conſpiracy in the now Plaintiff, to prove the ſaid Brook to be indicted: And by Walmeſley and Periam, the Replication is not good, for it may be that Brook was acquitted, and yet that the Plaintiff conſpired, upon which a Writ of Conſpiracy perhaps will not lye, but an Action upon the Caſe without doubt, for the Replication doth not prove that the Plaintiff did not conſpire, but that the Plaintiff was not puniſhable for ſuch Conſpiracy.

CCVII. Paſc. 33 Eliz. In the Common Pleas.

AN Abbot made a Leaſe to three men for eighty years, and in the end of the ſaid Leaſe there was a clauſe, Proviſo, That if they dyed within the ſaid Term, that then the Leſſor might enter. The Poſſeſſions of the Abby came to the King, who granted the Reverſion to J. S. who made a new Leaſe to J. D. for twenty and one years, to begin after the Expiration, Determination, or Surrender of the former Leaſe: The three Leſſees dyed within the term, If J. D. might enter before J. S. had entred, was the Queſtion. It was the Opinion of the Iuſtices, that he could not, for it is in the Election of J. S. if he will take advantage of the Condition, and defeat the Leaſe, but that ought to be by Entry, and none can make ſuch Entry but the Leſſor himſelf, or by his expreſs direction.

Trin. 31 Eliz. In the Kings Bench. CCVIII. Barlow and Pierſons Caſe.

BArlow brought a plaint of Debt in London againſt Edward Pierſon, which was his very name, and he cauſed himſelf to be removed into the Kings Bench by the name of Edmund Pierſon, and in Eaſter laſt he put in Bail Edmund Pierſon, and we declared againſt him by the name of Edward, his true name, and Iudgment was given for us; and now when we are to reſort to the Bail we cannot find any ſuch Perſon, wherefore all our labour is loſt, and now we would declare de novo upon that Bail, and we pray that the Court will give way to anſwer. Kemp, The ancient uſe was, when any removed himſelf hither by Habeas Corpus, the Plaintiff might declare againſt him at any time within a year after; but of late time the Iuſtices, to avoid overlong delays, have taken this order, that the Plaintiff in ſuch Caſe declare within two Terms; and this is the ſecond Term in your Caſe, wherefore you may declare: And it was ſaid that becauſe that the Defendant had removed himſelf by the name of Edmund, he is eſtopped to ſay the contrary: But if it were upon an Original Writ here, it is otherwiſe. And afterwards the Plaintiff declared againſt him by the name of Edmund.

Mich. 27 Eliz. In the Common Pleas. CCIX. Kightley and Kightleys Caſe.

DEbt by Euſtace Kightley againſt Charles Kightley Executors of the laſt Will of Francis Kightley: The Defendant pleaded that they had fully adminiſtred. The Caſe was this, Francis Kightley made the Defendants his Executors, who being within age adminiſtration was committed to another until they came of full age, and after they were of full age, the Iury found, that in the hands of the Adminiſtrator, fuerunt bona & debita Teſtatoris amounting to the value of 4000 l. To which Adminiſtrator the Executors did releaſe at their full age all manner of demands; and if that releaſe were Aſſets in the hands of the Executors was the Queſtion. Puckering Serjeant argued, it was not Aſſets, for a Releaſe of a thing, which is not Aſſets in the hands of an Executor, cannot be Aſſets, and things in Action, before they come in poſſeſſion, cannot be Aſſets: But a gift of Goods in poſſeſſion is Aſſets. And there is a difference betwixt a certain thing releaſed, and a thing incertain, of a certain it is Aſſets, for by ſuch means he hath given a thing which is Aſſets, but contrary of an incertain. And this difference is proved by 13 E. 3. Execut. 91. where it is holden, that if Executors releaſe to the debtor, he ſhall account for ſuch ſum before the Ordinary by Parn, but Trew ſaid he ſhall not account. The whole Court was againſt Puckering: And Anderſon ſaid, It is a clear Caſe, that this Releaſe is Aſſets, for he hath thereby given away that which might have been Aſſets. And the Law doth intend, that when he releaſes he hath recompence and ſatisfaction from the Party to whom the releaſe is made: And it is not requiſite, that every Aſſets be a thing in Poſſeſſion, or in the hands of the Teſtator, for a thing may be Aſſets which never was in the hands of a Teſtator, as monies for Lands or other Goods ſold. So if they come by reaſon of another thing, which was in the Teſtators hands; as the encreaſe of Goods by the Executors in their hands by merchandizing with the Goods of the Teſtator or Goods purchaſed by the Villein of the Teſtator after his death, ſhall be Aſſets. So monies received by the Executor of the Bailiff of the Teſtator after his death ſhall be ſaid Aſſets. Windam Iuſtice, So it is if the Teſtator hath Sheep, Corn, or Swine, and dyeth, and they have young Lambs, Pigs, or Calves, they are Aſſets for the reaſon aforeſaid: And he agreed that the releaſe is Aſſets, and he ſaid it had been ſo adjudged, and he denied the difference taken by Puckering. Periam agreed with the reſt in all; and alſo denied the difference. And he ſaid, the incertainty muſt be ſuch, that the ſame cannot be proved to the Court, or unto a Iury; that the thing releaſed might not by poſſibility have been Aſſets. For if Treſpaſs be done to the Teſtator by taking his Goods, and he dyeth, and the Executors releaſe all Actions, the ſame is Aſſets, becauſe it might be proved to the Iury, that had they not releaſed, but brought their Action of Treſpaſs de bonis aſportatis in 〈◊〉 • eſtatoris, that they might have recovered damages which ſhould have ſatisfied the Debts or Legacies of the Teſtator and therefore it ſhall be Aſſets: And yet the thing recovered cannot be in the Teſtator, or a thing in poſſeſſion, or certain in the hands of the Executors. With whom Rhodes agreed. And Periam conceived that ſuch Adminiſtrators made durante minori aetate of the Executor, could not by our Law neither ſue or be ſued: For as he conceived, the Infant was the Executor and an Infant Executor may either ſue or be ſued, and may releaſe if there be a ſufficient conſideration given him wherefore he ſaid if an Adminiſtrator doth releaſe where he hath no cauſe nor good conſideration, he ſhall be anſwerable of his own Goods when he cometh of full age, for the waſting of the Eſtate, and ſuch a releaſe ſhall be Aſſets: and it was holden, that a releaſe before Probate of the Will is good, and it is Aſſets alſo. And the ſame Term Iudgment was given, that the Releaſe of the Executor was Aſſets.

CCX. Temps Eliz. In the Common Pleas.

NOte by Dyer upon the words of the Statute of 32 H. 8. cap. 28. That a Feoffment of the Lands of his Wife, it ſhall not be a diſcontinuance (mes que) but that the Wife may enter after the death of her Husband, is an Abridgment of the words precedent, for in ſome Caſes ſuch a Feoffment is a diſcontinuance; as if, after the Feoffment they be divorced, ſhe cannot enter, but is put to her Writ cui ante divortium.

CCXI. Paſc. 29 Eliz. In the Kings Bench.

NOte by the Opinion of the whole Court: A man made his Will in this manner, I will and bequeath my Land to A. And the name of the Deviſor was not in all the Will: That yet the Deviſe was good by Averment of the name of the Deviſor, and proof that it was his Will; and if a man lying ſick, having an intent to make his Will by words makes ſuch a Deviſe, but doth not command it to be put in writing, but another without his knowledge or command puts the ſame in writing in the life of the Deviſor, it is a good Deviſe, for it is ſufficient if the Deviſe be reduced into writing.

Paſc. 29 Eliz. In the Common Pleas. CCXII. Braſiers Caſe.

NOte, It was agreed by all the Iuſtices, and affirmed by the Prothonotaries, That if the Deviſor levieth a Fine, and the Diſſeiſee in preſervation of his right againſt the ſaid Fine, enter his Claim in the Record at the Foot of the ſaid Fine, that the ſame is not any Claim to avoid the ſaid Fine upon the Statute of 4 H. 7.

Paſc. 29 Eliz. CCXIII. The Queen and Sir John Savells Caſe.

A Bill of Intruſion was exhibited by the Queen in the Exchequer againſt Sir Robert Savell Kt. who pleaded in bar her pretence, and upon Iſſue joyned, the matter was tryed by the Records, and thereupon Iudgment was given for the Queen. and an Injunction for the Poſſeſſion awarded accordingly. Sir Robert dyed, and now Sir John Savell, Son and Heir of the ſaid Sir Robert brought a Writ of Error in the Exchequer Chamber upon the Statute of 31 E. 3. The percloſe of which Writ was, ad grave damnum ipſius Johannis Savell filii & haeredis dicti Roberti. It was objected againſt the Writ, That no Writ of Error upon the ſaid Statute of 31 E 3. lay upon ſuch proceedings which at the time of the making of the ſaid Statute was not in force: For tryal of an Iſſue in the Exchequer by Record, was enacted by the Statute of 33 H. 8. and the Statute of 31 E. 3. extended to give a Writ of Error upon ſuch Iudgments which were given by Verdict, Confeſſion, or Demurrer, and not upon tryal by Records, which was given but of late times. But to this objection it was anſwered by the Lord Chancellor, and the other Iudges, That long time before the ſaid Stat. of 33 H. 8. Iſſues joyned in the Exchequer have been tryed by the Records; and he, when he was the Queens Solicitor, had ſeen divers Preſidents to that intent in the time of Hen. 6.

Mich. 29 Eliz. In the Kings Bench. CCXIV. Houtiers Caſe.

DEbt was brought upon a Conceſſit Solvere according to the Law of Merchants and Cuſtom of the City of Briſtol. Exception was taken, becauſe he did not mention the Cuſtom in his Declaration: And becauſe in the end of his Plea, he ſaith, Proteſtando ſe ſequi querelam ſecundum Conſuetudinem Civitatis Briſtol, the Plea was awarded good, and the Exception diſallowed.

CCXV. Mich. 29 Eliz. In the Kings Bench.

A Man was indicted upon the Statute of 4 Eliz. of Perjury in a Court-Leet: And the Indictment was, That he at the Leet of the Earl of Bath, ſuper Sacramentum ſuum coram Seneſcallo, &c. Exception was taken to it, becauſe it ſaith at the Leet of the Earl of Bath, whereas every Leet is the Kings Court, although that another hath the profit or commodity of it: And it was ſaid that the Steward of a Leet is not an Officer of Record; and alſo his Oath was, If he had done a Reſcous, or not, with which he was charged. And by Drew, It is not within the Statute; for it ought to be either before a Iury in giving Evidence, or upon ſome Article. But the Iuſtices in that were of opinion againſt him.

Mich. 25 Eliz. In the Common Pleas. CCXVI. Howen and Gerrards Caſe.

IT was adjudged in this Caſe, That Partition of Lands made by the Bayliff of a Franchize, was not good within the Statute of 31 H. 8. of Partition, but it ought to be done by the Sheriff himſelf.

Mich. 28 Eliz. In the Kings Bench. CCXVII. Strangder and Burnells Caſe.

AN Action upon the Caſe of Trover of Goods, and converting them to his own uſe in Ipſwich. The Defendant pleaded, That the Goods came to his hands in Dunwich in the ſame County, and that the Plaintiff gave to him all Goods which came to his hands in Dunwich, abſque hoc that he is guilty of any Trover or Converſion in Ipſwich. It was holden to be a good manner of pleading by reaſon of the ſpecial Iuſtification. Vide 27 H. 6. But where a Iuſtification is general, the County is not traverſable at this day, Vide 19 H. 6, 7.

62 Eliz. In the Common Pleas. CCXVIII. Hodges Caſe.

IF one enfeoffeth his Son and Heir apparent, and no uſe is expreſſed, nor Conſideration, it was ſaid It ſhould be to the uſe of the Son, and ſo hath the Law been taken; and ſo it is in Caſe of a Covenant to ſtand ſeized to the uſe of the Son. The Court ſaid that there was a difference betwixt the Caſes; or in the Caſe of Feoffment they ſeemed to be of Opinion, that the Deed ſhould have no operation; but in the other Caſe it may be otherwiſe upon conſtruction of the Reſult of the Vſe to the Father.

28 Eliz. In the Kings Bench. CCXIX. Mark Stewards Caſe.

AN Aſſumpſit before Action brought may be diſcharged by word, otherwiſe after Action brought.

Mich. 30 Eliz. In the Common Pleas. CCXX. Verney and Verneys Caſe.

IN Dower by Verney againſt Verney: The Caſe was, That Leſſee for years by Fine, to whom the Land was rendred by Fine for years upon the Default of the Tenant, prayed to be received, and it was Counter-pleaded, becauſe the Statute of Glouceſter gave no Receit, but where the Termor might have Recovery by Writ of Covenant, but where the Leaſe, as in our Caſe, doth commence by render by Fine, there cannot be any recovery by Covenant. But it was the Opinion of the Lord Anderſon, That ſuch a Termor ſhall be received.

CCXXI. Mich. 32 Eliz. In the Exchequer Chamber.

IN the Exchequer Chamber before the Chancellor, Treaſurer, &c. A Writ of Error was caſt upon the Statute of 31 E. 3. cap. 12. It was moved by Egerton Solicitor to the Queen, for the Defendant, That the Writ of Error ought to abate for falſe Latine, for the Writ is Pertenet, where it ought to be Pertinet. But by Manwood, Anderſon, and Wray, The ſame is no Exception, but notwithſtanding that, the Court may proceed to the Examination of the Errors; For the ſame is not properly a Writ, but rather a Commiſſion to the Chancellor, Treaſurer, &c. and therefore it was ordered that the Party ſhould proceed to the aſſignment of the Errors.

Mich. 31 Eliz. In the Exchequer. CCXXII. The Queens, Fanes, and the Archbiſhop of Canterburies Caſe.

THe Queen brought a Quare Impedit againſt Fane, 1 Leon. 201. the Archbiſhop of Canterbury, the Biſhop of Chicheſter, and Hudſon Incumbent, and counted that John Aſhburnham was ſeized of the Advowſon of Burwaſh, and was Outlawed in an Action of Debt, during which Outlawry in force, the Church voided, by which it did appertain to the Queen to preſent. The Archbiſhop and Biſhop pleaded that they claimed nothing but as Metropolitan and Ordinary. Fane pleaded, That King E. 4. ex gratia ſua ſpeciali, &c. and in conſideration fidelis ſervic. &c. granted to the Lord Haſtings the Caſtle and Barony of Haſtings, and Hundred, &c. Et quod ipſe haberet omnia Bona & Catal. Tenentium, reſidentium & non reſidentium, & aliorum reſident. quorumcun que hominum de & in Caſtro, Baronia &c. ſeu infra eadem pro numero debit. &c. tam ad ſectam Regis, &c. quam &c. utlagatorum. Et quod ipſi liceret per ſe, vel miniſtros ſuos, &c. and from him derived to the now Earl of Huntington as heir, &c. and the ſaid Earl being ſo ſeized, and the ſaid Aſhburnham ſeized of the ſaid Advowſon as appendant to the Mannor of Aſhburnham, holden of the ſaid Barony, the ſaid Church during the Outlary in force became void: For which cauſe the ſaid Thomas Fane ad Eccleſiam praedict. uſurpando praeſentavit the ſaid J. H. who was admitted, and inſtituted, and demanded Iudgment, If, &c. with this that the ſaid Tho. Fane will aver that the ſaid Church of B. is, and at the time of the ſaid Grant was infra praecinct. libertatis & francheſiae praedict. & quod praedict. Manerium de Aſhburnham tempore conceſſionis praedict. was holden of the ſaid Barony. And the Incumbent pleaded the ſame Plea: and if by that Grant of King E. 4. to the Lord Haſtings, ſcil, Bona & Catalla, the preſentment to the Church paſſed or not, was the Queſtion. Shuttleworth of Counſel for the Queen, he ſaid and confeſſed, That the Queen might grant ſuch a Preſentment, but it ought to be by ſpecial and ſufficient words, or ſuch words ſo as it might appear to the Court by them that the intent of the Queen was to grant ſuch a thing, for the general words Omnia Bona & Catalla, would not paſs ſuch a ſpecial Chattel in the Kings Grant. And he ſaid he conceived, that by the words ſubſequent, that no Goods and Chattels ſhould paſs by ſuch Grant, but ſuch which might he ſeized, the which the Advowſon of a Church could not be: Et quod ipſi liceret per ſe vel Miniſtros ſuos ponere ſe in ſeiſinam, 8 H. 4. 114, 115. The King granted to the Biſhop of London that he ſhould have Catalla Felonum & Fugitivorum de omnibus hominibus, & tenent. de & in terris & feodis praedict. & de omnibus reſidentibus infra terr. & feoda praedict. ita quod ſi praedicti homines, tenentes & reſident. de & in terris & feodis praedict. ſeu aliqui eorundem, ſeu aliquis alius infra eadem terras & feoda pro aliqua tranſgreſſione ſua, ſeu quocunque alio delicto vitam, vel membrum debeat, vel fugerit & judicio ſtare noluerit, ſeu aliquam aliam tranſgreſſionem fecerit pro qua ipſe Catalla ſua perdere debeat, in quocunque loco juſtitia de ea fieri debeat. Ipſa Catalla ſint ipſius Epiſc. & per Miniſtros Epiſc. fn manus ipſius Epiſc. ſeſiri poſſint. Tirwhit, The Goods of thoſe that are put to penance do not paſs, ſo the Goods of a Felo de ſe, Vide 42 Aſſ. 5. where one being impanelled upon the Grand Inqueſt before the Iuſtices of Oyer and Terminer, pleaded the Kings Charter of Exception from Inqueſts; and becauſe in the ſaid Charter there was not this Clauſe (Licet tangit nos & haeredes noſtros) without challenge it was rejected, and he charged, and ſworn. And if the King grant to me to appropriate an Advowſon, which in truth is holden of the King, ſuch a Grant is void. So if there be not ſpecial words, by which it may appear that the King hath notice of it, and that his intent was, that the Grant ſhould extend to the ſame, it doth not paſs, 16 E. 3. Fitz. Grants 58 and 33 E. 3. Grants 103 So here this Preſentment is a ſpecial Chattel; and it is not uſually intended, or thought upon when a man ſpeaks generally of Goods and Chattels, but that it paſſeth, yet the Preſentment doth not lye for the Defendants, for they do not derive any intereſt under that Grant, but are meer ſtrangers to it, and therefore they ſhall not take any advantage in laying this Grant in the Queens way; for the Queen hath good title againſt all perſons, but thoſe which claim under the ſaid Grant, but that is nothing to the Defendants. For one cannot croſs the title of the King, if he doth not make a title to himſelf. As 39 Aſſ. 18. 17 Aſſ. 11. if the title of the King be found by a falſe Office, the party grieved cannot traverſe the title of the King, without making a title to himſelf, and then the King may chooſe whether he will maintain his own title found by the Office, or traverſe the title of the other. Walmeſley to the contrary this title of Preſentment is a Chattel, Rex habebit omnia Catalla felonum, &c. Terminus Annorum is a Chattel, ſo Exitus & proficua terrarum utlagatorum pro felonia; ſo a right of Action for Goods; ſo it is of an Obligation made to the party delinquent, therefore alſo a title to preſent; therefore if a title to preſent ſhall accrue to the King by ſuch general words, it ſhall paſs alſo from the King by ſuch words; and as to that which hath been objected, That the Grant of King E. 4. extends only to ſuch Goods and Chattels which may be ſeized. He cited the Caſe 39 H. 6. 35. where the Grantee of a Rent-charge, for a term of years granted Omnia Bona & Catalla ſua tam viva, quam mortua, the Rent paſſed, and yet the Grantee could not put him in Seiſin of it when he would, but ought to expect the day of payment. And this title to preſent is not a thing in action, for if no diſturbance be made, the Party may have the benefit of it without any Action. Anderſon held that this title to preſent could not paſs by theſe general words, Bona & Catalla, for they do not extend to a Right, or things in Action, but to ſuch things only which are commonly known and underſtood by ſuch words. By grant of Goods, Chattels real do not paſs. For when men ſpeak of Goods, Houſhold-ſtuff, Mony, and the like, perſonal things only are underſtood. So a man cannot be ſaid to have a Chattel but where he is poſſeſſed of it, and here this Intereſt is but Jus praeſentandi. Periam, This Intereſt is a Chattel; for if the Church became void and before Preſentment the Patron dyeth, his Executors ſhall have the Preſentment, for that it was a Chattel veſted in their Teſtator, &c.

19 Eliz. In the Kings Bench. CCXXIII. Hide and Hills Caſe.

IN Ejectione firmae by Hide againſt Hill, The Caſe was, Nicholas Throgmorton Tenant in Tail, without licence of the King, went beyond Sea into Italy, and there married an Engliſh Woman, and there continued in the Service of Cardinal Pool, and their practiſed traiterouſly againſt the State here, and againſt his Allegiance, within which time he had Iſſue a Son named Francis: It was holden that the ſaid Son was not inheritable to the Tail; for if a Subject goeth beyond Sea with the Licence of the King, and there continueth longer than his appointed time, by that he loſeth the benefit of a Subject. It was further given in Evidence, That the ſaid Nicholas was attainted of Treaſon in the time of Henry 8. and afterwards went beyond Sea, ut ſupra, and returned in the time of Queen Mary; and was reſtored by Act of Parliament: And upon all that matter it was holden that the ſaid Francis was inheritable.

19 Eliz. In the Kings Bench. CCXXIV. Grey and Edwards Caſe.

IN an Attaint by Grey againſt Edwards it was holden by Wray, Gaudy, and Jeoffries, That if one makes a Deed, and that by theſe words (Dedi) conveyeth Lands to another, without any words of Bargain and Sale, and that for a ſum of mony; If the Deed be debito modo enrolled, the uſe ſhall paſs as well as if the words of Bargain and Sale had been in the Deed, becauſe that a ſum of mony was paid for the Land.

19 Eliz. In the Kings Bench. CCXXV. Webbs Caſe.

IN Action upon the Caſe the Plaintiff declared, That whereas Cobham was indebted to J. S. and J. S. to the Defendant, the ſaid Defendant in conſideration that the Plaintiff would procure the ſaid J. S. to make a Letter of Attorney to the Defendant to ſue the ſaid Cobham, promiſed to pay and give to the Plaintiff 10 l. It was objected, Here was not any Conſideration for to induce the Aſſumpſit; for the Defendant by this Letter of Attorney gets nothing but his Labour and Travel. But the Exception was not allowed of. For in this Caſe not ſo much the Profit which redounds to the Defendant, as the Labour of the Plaintiff in procuring of the Letter of Attorney, is to be reſpected.

Temps Roign Eliz. CCXXVI Heggor and Felſtons Caſe.

IN Treſpaſs, the Caſe was, A Copyholder ſurrendred to the uſe of his Wife for Life, and after to the uſe of his Daughter in Fee, the Wife is admitted: It was holden that the Daughter, after the death of the Wife,Copyholder Surrender by Attorney. might without any admittance ſurrender the ſame Land, for the firſt admittance was ſufficient. And Manwood ſaid that Roper was Steward of a Mannor, and one of the Copyholders of the ſaid Manor being in Ireland, he made a Commiſſion to one to receive a Surrender from him there, and it was holden a good Surrender.

CCXXVII. Trin. 32 Eliz. In the Exchequer.

NOte by Manwood chief Baron, for a Rule to all Counſellors, That they do not adviſe any Collectors of Subſidies or Fifteens to exhibite any Bills in the Exchequer Chamber for the not payment of Subſidies; for ſuch Bills ſhall not be allowed hereafter, becauſe they have remedy by Diſtreſs. Alſo it was, That if any be aſſeſſed for the Fifteens which he ought to pay, or if two Towns ought to pay together, and one Town be taxed more than it ought to be, or hath been accuſtomed, thoſe who are grieved by ſuch Aſſeſſment, may have a Commiſſion out of the Exchequer, which is called ad aequaliter taxand. and that was put in practice in a caſe between Bartace and Hind, where one of theſe was Lord of Little Marlow, and the other of Hedſore. It was alſo holden, That Fifteens are to be levied of Goods and Chattels properly and a Townſhip is ſometimes richer than at other times, and therefore it is not reaſonable they pay their Fifteens always according to the ſame proportion. But Clark Baron held where the Cuſtom hath always been that the Fifteens ſhall be taxed according to the quantity of Acres, then the rate and proportion ſhall be always on whoſoever holdeth the Land. And as to the Commiſſion ad aequaliter taxand. Manwood and Fanſhaw ſaid, That they could ſhew twenty Preſidents of it.

Trin. 30 Eliz. In the Kings Bench. CCXXVIII. Harris Caſe.

THe Caſe of Harris of the Middle Temple, was, Tenant in tail in remainder upon an Eſtate for life is attainted of Felony,2 Leon. 122. Hughs Qu. 13. 3 Leon. 185. 1 Inſt • If he hath forfeited his Remainder during his Life. Popham Attorney General, He hath forfeited it to the Queen; for after his attainder, the Law will not ſuffer it to remain in him, and it cannot veſt in the Lord of whom the Land is holden; for the perſon attainted being Tenant in tail in remainder, was not very Tenant to the Lord, therefore, if in none of them, the Queen ſhall have it, and the Law ſhall puniſh the offence ſo ſharply, that it ſuffer nothing to remain in him. So Tenant in Dower and by the Courteſie: And it is a Maxim, What a man hath in his own right he may forfeit, but it is not a certain rule, Whatſoever a man may grant he may forfeit; as Guardian in Socage and Executors may grant that which they cannot forfeit.2 Leon. 126. A man ſeized in the right of his wife is attainted of Felony, the Queen ſhall have but the profits of the Land during the life of the Husband, Vide Regiſter 292. Where the husband ſeized in the right of his wife of certain Lands is outlawed of Felony, the King ſeizeth, and hath the Lands during the life of the husband, after the death of whom, iſſued a Diem clauſit extremum, Vide F.N.B. 254. D. Cook, Tenant in tail in poſſeſſion is attainted of Felony, the King ſhall have but the profits, but as our Caſe is, being Tenant in tail in remainder upon an Eſtate for Life nothing ſhall be forfeited during his life, and after the death of the Tenant in tail, ſo attainted of Felony, the Iſſue in tail may enter, for the King hath not the Freehold; for if the King had the Freehold, the Iſſue in tail could not enter without Office, vide Old Natura Brevium in the Writ of Eſcheat, That the King ſhall have only the profits. At another day it was argued by Egerton Solicitor, That the Queen hath the Intereſt of him in the Remainder during his life; for a man ſo attainted cannot be receiv'd againſt the Queen; and if a man attainted of Felony purchaſeth Land and dyeth his wife ſhall not be endowed of it: And he ſaid that this Remainder veſted in the Queen without Office, then not pardoned by 23 Eliz. It hath been objected, That if the Remainder be in the Queen without Office, by this attainder of Felony by the Common Law, then alſo in caſe of attainder for Treaſon, and then what need was there that the Statute of 33 H. 8. ſhould be made, which enacteth, That in caſes of Treaſon it ſhall veſt in the King without Office. As to that, I anſwer, That that Statute was made in affirmance of the Common Law, and alſo for other things given to the King by the Statute, which were not given by the Common Law, as Conditions, Rights, &c. So as the King might grant over without Office, and alſo the Subject have a Petition of Right before Office, which was not at the common Law, 33 H. 8. 20. in the ſaving in the end of it: And as to the Statute of 18 H. 6 cap. 6. ſuch things were in the King without Offce, for by the common Law before Office, the King might grant them, but he could not grant them if they were not veſted in him; and the ſaid Statute was made to ſuch intent, that the Queen ſhould be fully informed of her Title, &c. by the Office. Vide Stanford Prerogat. 54, 55. and Vide 20 E. 4. 11. A. ſeized of a Mannor with an Advowſon appendant, is attainted of Treaſon, the Church void, the King without any Office ſhall have the preſentment. But admitting that it is not in the King without Office, yet the Pardon of 23 Eliz. doth not extend to it: For the words of the Pardon are, Treaſons, Felonies, Offences, Contempts, Treſpaſſes, Entries, Wrongs, Deceits, Miſdemeanors, Forfeitures, Penalties, and Sums of Moneys, and if by any of theſe words the matter be helped, is to be conſidered; and if any thing ſhall help it, it is the word Forfeiture: But I conceive that the ſame doth not extend to this matter; for although it be an ample word, yet it ſhall be conſtrued to extend beyond the words accompanied with it, which concern only perſonal things, as Contempts, Wrongs, Treſpaſſes, as the Statute of 13 Eliz. cap. 10. which is penned by general words, as Colledges, Deans and Chapters, Parſons, Vicars, and others having Spiritual Promotions, that Statute doth not extend by conſtruction to Biſhops, and they have Spiritual Promotion; yet the Statute ſhall be conſtrued to extend to the Parties named, and other Inferiour Orders and Degrees, and ſhall not be extended higher. So in the Commiſſion of the Peace, ad diverſas Felonias, & alia Malafacta, &c. thoſe general words do not extend to Treaſon, &c. Vide for the Reſidue of this Caſe Venable and Harris's Caſe, which was the ſame Caſe, and is Reported in Leonard 2 Part, fol. 122. Placito 169.

Paſc. 33 Eliz. In the Common Pleas. CCXXIX. Downhall and Cateſoy's Caſe.

IN a Formedon by Downhall againſt Catesby, 3 Leon. 267. the Parties were at Iſſue, and it was tryed by Niſi prius: It was moved in Bank, becauſe that ſome of the Iury did eat and drink before they gave their Verdict that the Court would not receive the Poſtea: Curia that we cannot do; for we not know whether your Information be true or not, and this matter ought to be examined by the Iuſtices of Aſſize or Niſi prius, before whom the Trial was, and they are to certifie thereof, and then we ſhall have good cauſe to ſtay the Entry of the Poſtea. In that Caſe it was ſaid. If any of the Iurors eat and drink before their Verdict at their own Coſts, it doth not make the Verdict void, but if at the Coſts of the Plaintiff or Defendant, it is otherwiſe.

CCXXX. Hil. 29 Eliz. In the Common Pleas.

THe Sheriff took an Obligation of a Priſoner bailable, upon condition that he ſhould perſonally appear in the Kings Bench, &c. It was holden a good Condition, not againſt the Statute of 23 H. 6. So if the Condition had been that he ſhould appear for to anſwer: contrary, that he ſhall appear and anſwer; for in the principal Caſe, the word (perſonally) is not of ſubſtance, for although he appears by Attorney, yet the Condition is well performed; and Iudgment was given for the Plaintiff: Anderſon reclamante. Vide 27 Eliz. B. R. Sedford and Cutts Caſe.

32 Eliz. In the Common Pleas. CCXXXI. Haſelwoods Caſe.

THe Caſe of Haſelwood; A ſeized of Land is indebted to the King by Obligation and enfeoffed B. of his Land: And the Caſe of Fleetwood 15 Eliz. was vouched, where it was holden, That in purchaſe the debtor of the King was lyable. But by Pigot, who was of Counſel with Haſelwood, the Obligation in this Caſe was made before the Statute of 33 H. 8. or otherwiſe he ſhould be charged.

32 Eliz. CCXXXII. Sir William Pelhams Caſe.

SIr William Pelham was Surveyor of the Ordinances, and delivered of the Kings money to Painter, Clerk of the Ordnance. It was holden, That for that money the Queen might have Account againſt Painter. See this Caſe before Sect. 81.

Trin. 29 Eliz. In the Common Pleas. CCXIV. Ognell and Ʋnderhills Caſe.

IN Replevin, the Caſe was, as appeared upon the pleading, That Rob. Bouchier was ſeized of a certain Farm called Cruchefield Grange, and leaſed the ſame to Sir William Raynſford for thirty years, who dyed thereof poſſeſſed, by reaſon of which the Intereſt thereof came to Raynsford, as Executor of the ſaid Sir William Raynsford, who aſſigned the ſaid Farm, except a parcel of it called Hobbes, to Sir Henry Bear for parcel of the term, and afterwards aſſigned the ſaid parcel called Hobbes for part of the term to Frekington and others, and afterwards granted the reſidue of the ſaid term, not expired, to the ſaid Bear and Frekington, and afterwards the ſaid Rob. Bouchier granted a Rent-charge of 40 l. per annum percipiendum de omnibus terris & renementis quibuſcunque vocat. the Grange of Cruchefield, in the Pariſh of Stoneleigh in the County of Warwick nuper in tenura, & occupatione William Raynsford milit. & nunc in tenura, & occupatione Hen. Bear. Bouchier granted the reverſion of Hobbes to Lewknor in Fee, to whom Scarre releaſeth all his right, eſtate, and demand in the ſaid Land called Hobbes; the Leaſe expired, the rent behind, Lewknor leaſed at will to R. the firſt Queſtion was, If the ſaid Rent-charge ſhall be ſaid iſſuing out of the ſaid Lands called Hobbes; for if &c. then by that Releaſe the rent is gone: But the whole Court was clear of Opinion, That the rent was not iſſuing out of Hobbes, but out of the Lands then in the poſſeſſion of Bear, and not out of the Lands in the poſſeſſion of Frekington: Although it was objected by Walmeſley Serjeant, That the words in the Grant of the rent, (in tenura & occupatione Bear) ſhall be conſtrued in the disjuncive, quaſi ſive; and then the Cloſe called Hobbes, although it was not in the Occupation, yet it was in tenura of Bear. The Matter was at another day argued by Fenner Serjeant for the Plaintiff, and he much relyed upon the word quibuſcunque in the Grant of the Rent de omnibus terris quibuſcunque, commonly called Cruchefield Grange: As if I grant to you all my Trees, my Apple-trees ſhall not paſs; but if the Grant was omnes arbores meas quaſcunque they paſs, and that by the Emphaſis of this word Quibuſcunque: So if I grant you Common for your Cattel in ſuch a place, none ſhall have Common but thoſe which are Commonable, ſhall have Common there; contrary where the Grant is pro averiis quibuſcunque: And it was adjudged in the Chancery in the Caſe of the Biſhop of Ely, That where the ſaid Biſhop leaſed all the Demeaſns of a Manor for years, that by the ſaid Leaſe the Park within the ſaid Manor ſhould not paſs. But perhaps if ſuch a Leaſe had been Omnes & ſingulas terras dominicales quaſcunque, the Park would have paſſed. And afterwards the Counſel of the Plaintiff ſeeing that the Court was of Opinion with the Defendant, took Exception to the pleading: The Defendant made Conuſans ut Ballivus Adminiſtratoris of the Grantee of the Rent, and doth not ſhew the Letters of Adminiſtration. And as to that, It was agreed by the Court that that had been a good Exception if the matter had not been relieved by the Statute of 27 Eliz. of Demurrers. Another matter was objected upon the Statute of 32 H. 8. cap. 37. upon the words of the ſaid Statute, ſo long as the Lands remain in the poſſeſſion of the Tenant in Demeaſn, who ought immediately to have paid the ſaid Rent. And it was ſaid by Anderſon and Rhodes, that the Conuſans was good enough, and within the relief of that Statute: For Lewknor was the immediate Purchaſer, and although he had let the Lands to another at will, that did not make any thing, for yet the Eſtate of the Land is within the words of the Statute, for the Land remains in the Seiſin of the firſt Purchaſer. And note that in this caſe Bouchier dyed before the Leaſe expired, ſo as the Rent was not determined in his life. And afterwards Iudgment was given for the Defendant.

Mich. 30 Eliz. In the Kings Bench. CCXXXV. Rawlins and Somerfords Caſe.

IN Ejectione firmae, the Caſe was, Cartwright poſſeſſed of a houſe for the term of 30 years, demiſed a Stall parcel of it to Wartow for two years, and afterwards aſſigned the whole houſe to Rawlins for all the years; Rawlins redemiſed the ſame Stall to Cartwright for twenty years, but Wartow did not attorn; but before the ſaid Redemiſe, Cartwright by Deed indented, demiſed the ſaid Stall to Wartow for ſix years after the ſaid two years ended, and afterwards Rawlins redemiſed all the houſe to Cartwright for 21 years, rendring rent, with clauſe of re-entry, and upon the Indenture of the ſaid Redemiſe was endorſed that before the ſealing and delivery, &c. it was agreed between the Parties, that Wartow ſhould have the ſaid Stall according to the Leaſe for ſix years to him made: And afterwards Cartwright redemiſed the ſaid Stall to Rawlins for ten years, and afterwards the Rent. was behind, And if the Rent reſerved by Rawlins upon his demiſe to Cartwright, was ſuſpended, or not, was moved a queſtion. Cook argued it was not ſuſpended, for Rawlins had in the Eſtate but an Intereſt in futuro, which cannot ſuſpend the Rent before in poſſeſſion. And he put the Caſe 31 E. 1. Fitz. Diſcent 17. Lord and Tenant, the Tenant is attainted of Felony, and dyeth, now the Seignory is not preſently extinct: For if the Lord takes Fealty of the Son, the Seignory doth continue in Eſſe, and Vide Acc. Fitz. N. B. 144. 26 E. 3. 72. Houghton, the rent is ſuſpended, as if I leaſe Land and an Advowſon, rendrint rent, and I take back an Eſtate in the Advowſon, now the rent is ſuſpended. But as to that it was anſwered, That there the party hath a preſent intereſt in the Advowſon, but ſo it is not in the Caſe at Bar. And by Cook, A. ſeized in Fee of three Acres makes a Leaſe of two of them for 21 years rendring rent, and afterwards the Leſſee leaſeth one of the ſaid Acres for years to the Leſſor to begin two years after, it is not a preſent ſuſpenſion of the rent until the Leaſe come into poſſeſſion, &c. And afterwards it was adjudged, that by the Leaſe in futuro the rent was not ſuſpended, Paſch. 28 Eliz. Rot. 255.

Mich. 26 Eliz. In the Exchequer. CCXXXVI. The Guardians of the Monaſtery of Otleries Caſe.

IN the Exchequer, it was found by Special Verdict,1 Leon. 4. That the Guardian and Chanons Regular of Otlery were ſeized of the Manor of O, &c. and that 22 H. 7. at a Court holden, granted the Lands in queſtion to W. and W. his Son, for their lives, by Copy, according to the Cuſtom of the ſaid Manor, and afterwards 30 H. 8. they leaſed the ſame Land by Indenture to H. rendring the ancient and accuſtomed rent, and afterwards ſurrendred their Colledge, &c. and afterwards W. and W. dyed. And if the ſaid Leaſe ſo made, during the Eſtate Cuſtomary notwithſtanding the Statute of 31 H. 8. were good or not, that was the Queſtion, being within a year before the Surrender, &c. And it was argued by Egerton Solicitor, That the ſaid Leaſe was void by the Statute, the words of which are, Whereof, or in the which any Eſtate or Intereſt for term of Life, year or years, at the time of the making of any ſuch Leaſe, had his Being or Continuance, and was not then determined, finiſhed, or expired. And therefore we are to ſee, if this right or poſſeſſion which W. and W. had at the time of the making of the ſaid Leaſe was an Intereſt, or Eſtate for Life: And as to the word Eſtate eſt nihil aliud, than meaſure of time; for an Eſtate of Fee-ſimple, is as much as to ſay, an Intereſt in the Lands for ever, and ſo of the reſt, and therefore W. and W. had at the time of the making of the Leaſe an Eſtate for the thing demiſed. And although ſuch Cuſtomary Tenants are termed in Law, Tenants at will, yet they are not ſimply ſo, nor meer Tenants at will, but Tenants at will ſecundum Conſuetudinem Manerii: which Cuſtom warrants his poſſeſſion here for life, and therefore it is a more certain eſtate, than an eſtate at will, for the Copyholder may juſtifie againſt his Lord, and ſo cannot a Tenant at will, whoſe eſtate is determinable at the will and pleaſure of his Leſſor; and although this eſtate is but by cuſtom, and by no conveyance, yet it is ſuch an eſtate which the ſaid Statute intends, & non refert by what conveyance the eſtate is raiſed, ſo it be an eſtate; and this eſtate being ſupported by cuſtom, is acknowledged in Law to be an eſtate, and ſo accounted in our Law; and the Law hath notably diſtinguiſhed Copyhold tenancies by the cuſtom, and tenancies at will at the Common Law, for a Copyholder ſhall do fealty, and have aid of his Lord in an Action of Treſpaſs; he ſhall have and maintain an Action of Treſpaſs againſt his Lord; his wife ſhall be endowed; the husband ſhall be Tenant by the Curteſie without a new Admittance: So cuſtomary Tenancies are within the Rules and Maxims of our Law: As in the Caſe of Horewood, There ſhall be a poſſeſt o fratris of it without admittance; and it was adjudged 8 Eliz in the Kings Bench, That if a Copyholder ſurrender to the uſe of another for years, and the Leſſee dyeth, his Executors ſhall have the reſidue of the term without any admittance. M. 14, 15 Eliz. A Copyholder made a Leaſe for years by Indenture warranted by the cuſtom, the Leſſee brought Ejectione firmae, it was adjudged maintainable in the Common Pleas; Although it was objected, That if it be ſo, then if the Plaintiff recover, he ſhould have an Habere facias poſſeſſionem, and there Copyholds ſhould be ordered by the Common Laws of the Land. 10 Eliz. Lord and Copyholder for Life, the Lord grants a Rent-charge out of the Manor whereof the Copyhold is parcel, the Copyholder ſurrendreth to the uſe of A. who is admitted, he ſhall not hold the Land charged; and ſo it was adjudged in the Court of Common Pleas.

CCXXXVII. Mich. 23 Eliz. In the Common Pleas.

IT was holden by all the Iuſtices in the Common Pleas, That the Queen might be put out of poſſeſſion of an Advowſon by two Vſurpations, and ſhall be put to her Writ of Right of Advowſon, as a common perſon ſhall be, for it is a thing tranſitory; and if the Queen after ſuch Vſurpations grant the Advowſon, the Grant is void, and ſo it was adjudged.

CCXXXVIII. Mich. 23 Eliz. In the Common Pleas.

THe Caſe was, Tenant in tail, the remainder over to another in Fee, makes a Leaſe for life according to the Statute, and afterwards dyes without Iſſue; and afterwards he in the Remainder grants his Remainder by Fine before any Entry, and by Fenner, the Conuſee cannot now enter upon Tenant for life, nor avoid his leaſe, for by the Livery to the Tenant for life, a Freehold paſſeth, which cannot be avoided without an Entry. As if a Parſon makes a leaſe for life, rendring rent, and dyeth, the Succeſſor accepteth the rent, now the leaſe is affirmed, vide 18 E. 4. 25. and then when before any Entry, he in the remainder grants his remainder, the Grantee ſhall have it but as a remainder, and ſo the Eſtate of the Tenant for life, which before was voidable, is now made good; and ſo it was holden by Windham and Periam: But by Mead and Dyer, by the death of Tenant in tail without Iſſue, the leaſe for life is become void, for the Eſtate out of which the Eſtate for life is derived, is determined by the dying without Iſſue, Ergo &c. Vide 21 H. 7. 12. A leaſe for life is made upon condition, That if the Leſſor pay to the Leſſee at ſuch a day 20 l. that his Eſtate ſhall ceaſe, now by the performance of the Condition the Eſtate is determined without any Entry.

CCXXXIX. 32 H. 8. In the Common Pleas.

NOte by all the Iuſtices of the Common Pleas, That if a man holds of the King in chief by Knights Service, and alſo holds of another Lord by Knights Service, and dyeth, his heir within age, and the King ſeizeth the Wardſhip of the Body and Land, and afterwards the heir cometh of full age; and before Livery ſued, the other Lord grants over his Seignory to another, and the heir Attorns, It is a good Attornment; and alſo Seiſin of the Services had by ſuch Lord by the hands of ſuch an heir before Livery ſued, is good enough, and ſhall bind him afterwards in an Avowry, &c.

Temps H. 8. Vide 31 H. 8. Rot. 420. CCXL. Sir William Hollis Caſe.

SIr William Hollis brought a Quare Impedit againſt the Biſhop of Coventry, Godfrey Fuliamb Kt. and William Waltham Clark; The Caſe was, Sir Ralph Langford Kt. was ſeized of the Manor of D. to which the Advowſon was appendant, and preſented to the ſame Church one A. his Clark, who was admitted, &c. And afterwards the ſaid Sir Ralph granted the next Avoidance of the ſame Church to Sir Godfrey Fuliamb, James Fuliamb, George Fuliamb, and William Walton, & eorum uni conjunctim & diviſim, afterward the ſaid Sir Ralph granted by fine the ſaid Manor with the Advowſon to Sir William Hollis in Fee; the Church became void, the ſaid Sir Godfrey Fuliamb preſented the ſaid Waltham his Clark, who was admitted, &c. And upon Argument at the Bar and Bench, It was adjudged againſt the Plaintiff, and the Preſentment of Sir Godfrey ſole without the others, was good: Notwithſtanding alſo that Waltham the Preſentee was one of the Grantees of the next Avoidance, Tr. 31 H. 8. Rott. 420. Vide 21 E. 4. 66. 35 H. 6. 62. See this Caſe lately Reported in Sir George Mores Reports, by the name of Sir Godfrey Fuliambs Caſe.

CCXLI. Temps Roign Eliz.

NOte by Hind and Hales the Kings Attorney, Iuſtices of Aſſize in the County of Eſſex, in the Caſe of the Biſhop of London and one Heron Keeper of Cronden Park: if the Keeper of my Park or any of his Servants without his aſſent, of their own heads, and without my commandment kill my Deers within the ſaid Park, being within his keeping, or abateth, or pulleth down any houſe within the Park, or Barn for to lay Hay for the Deer there, or cutteth any Trees, Wood or Vnderwoods there growing, and ſells the ſame, or gives it to another, that in all theſe caſes the Keeper of the Park ſhall forfeit his Office; And it was agreed by them, That ſuch a Keeper hath not any eſtate or poſſeſſion in the Park, or in the Lodge, but the poſſeſſion remains always in the Owner of the Soil of the Park, and the Keeper hath but the occupation, and keeping, and the ſurveying of the ſame; for ſuch a Keeper cannot juſtifie the holding of the Lodge with force in a Writ brought upon the Statute of 8 H. 6. by the Owner of the Park, but it was agreed that he who hath the inheritance in ſuch an Office, ſhall not forfeit his Office for the cauſes aforeſaid.

Hil. 29 Eliz. In the Common Pleas. CCXLII. Fitz and Pierces Caſe.

IN Ejectione firmae by Fitz againſt Pierce: Pierce was outlawed and now came, and ſhewed by way of Plea, that the outlawry was erronious in this, videlicet ad Com' meum tent' 30 Jan. 29 Eliz. whereas the ſaid day was Dies Dominicus, and ſo there was no County Court: It was the Opinion of Windham, that the ſame matter did well lye in Plea, for it is matter apparent within the Record, as in the caſe of Brecket and Fiſh, Plowd. Com. 266. Rhodes and Periam were of a contrary Opinion, and ſaid the caſe cited is not like to the caſe at Bar, for there it appeareth to the Court, as Iudges, when every Term beginneth and endeth; but it is otherwiſe in our caſe, ſi 30 die Januarii be dies Dominicus necne, for it ſhall be tryed by the Country, &c.

Trin. 32 Eliz. In the Kings Bench. CCXLIII. Keenes Caſe.

RAlph Keene Vicar of B. was Indicted for ſtopping quandam viam valde neceſſariam, Indictment. Nuſance. for all the Kings Subjects there paſſing: Exception was taken to it, becauſe it wanted the word Regiam; and the word neceſſariam doth not imply any matter, for a Foot way is neceſſary:Addition. Alſo here the Party hath not any addition: It is R. K. but it is not ſaid Clarke, and for theſe cauſes the Party was diſcharged.

Trin. 32 Eliz. In the Kings Bench. CCXLIV. Peake and Pollorts Caſe.

ACtion upon the Caſe by Peake againſt Pollort, Words. upon theſe words, Thou art a malicious and ſedicious man, and moveſt the Queens Subjects to Sedition: It was the Opinion of the Court, that the words were not actionable, for they were too general; for it may be that the Defendant hath ſtirred up the Tenants of a Manor to Tumults and Sedition, which is not any great Scandal. And the Statute of 23 Eliz. is, If any Perſon do any thing to move the People to Sedition, the ſame is Felony; but then it muſt be Sedition againſt the Queen; and of that Opinion was the whole Court.

Trin. 32 Eliz. In the Kings Bench. CCXLV. Ratcliffe and Shirleys Caſe.

THe Lady Ratcliffe brought an Action upon the Caſe againſt Shirley, for theſe words,Words. My Lady Ratcliffe is a beggerly Lady, and giveth thread-bare Coats; ſhe bought Sheep, and coſen'd men of their money, and ſhe is as very a Thief as he that robbeth by the High-way. Vpon Not Guilty, the Iury found that the Defendant ſpake theſe words, She is a worſe Thief than he that robbeth by the High-way: It was holden that the words found by the Verdict were actionable, as well as if the Defendant had called the Plaintiff Thief generally. But it ſeemed to the Court, that upon that Verdict the Plaintiff ſhould not have Iudgment; for it may be that the Defendant dixit utrumque at ſeveral times; and ſo ſeveral Cauſes of Action. And it is not like to the Caſe 3 Ma. 118. where part of the words is found, & quoad alia verba non dixit, and ſo expreſly acquit him of the remnant, ſo it is not here, for this Verdict doth not acquit him of the other words; and for that Cauſe Iudgment was ſtayed.

Hil. 26 Eliz. In the Kings Bench. CCXLVI. Herne and Crowes Caſe.

IN an Action upon the Caſe by Herne againſt Crowe, and declared, that whereas certain Iriſh Merchants had imported Furs here into England, which were offered to be ſold in London; which Furs the Defendant deſired to buy, but becauſe he was a Foreigner he could not buy them without peril of forfeiture, and then the Plaintiff was in communication with the Merchants to have bought them, that the Defendant in conſideration that the Plaintiff promiſed to the Defendant, that when he had bought the ſaid Furs, the Defendant ſhould have ſuch a quantity of the ſaid Furs as he pleaſed upon equal price, aſſumed and promiſed that he would ſpeak no more with the ſaid Merchants for the buying of the ſaid Furs; yet, that notwithſtanding he proceeded in the ſaid bargain, and offered to the ſaid Merchants ſixty pound more than any other, by reaſon of which the Plaintiff could not have them for ſuch reaſonable price, as he might have had them before. It was holden by Wray Chief Iuſtice, That the Declaration here was inſufficient, upon which the Defendant might have well demurred.

Mich. 26 Eliz. In the Common Pleas. CCXLVII. Bakers Caſe.

A Writ of Partition by Baker Heir of Gertrudi Marqueſs of Exeter, who deviſed all his Lands to Blunt, by which the third part deſcend to the Plaintiff,Eſtrepement. and prayed a Writ of Eſtrepement; and it was the Opinion of the Court, that the Writ is not to be granted, for the Plaintiff may have a more proper remedy upon the Statute, Cum duo, vel tres, and in a Writ of Partition no Land is demanded.

CCXLVIII. Mich. Eliz. In the Common Pleas.

Conditions.A Man was bound in an Obligation that he ſhould releaſe all his right in Black Acre to the Obligor, and in the performance of the ſaid Condition, he made ſuch a Leaſe, and delivered the ſame to C. to the uſe of the Obligor. The Opinion of the whoſe Court was, That the Condition was not performed, becauſe the Obligor had not the Leaſe in his own hands to plead, but is put to his Writ of Derinue againſt C. which was not the intent of the Condition.

Mich. 31 Eliz. In the Common Pleas. CCXLIX. Seaman and Brownings Caſe.

SEaman brought Debt, in an Obligation againſt Broſhnin and others, Executors of one Marſhall; The Condition was, That whereas the ſaid Marſhall had ſold certain Lands to the Plaintiff, If the Plaintiff peaceably and quietly enjoyed the ſaid Lands againſt the ſaid Marſhall, &c and aſſigned the breach. That the ſaid Marſhall had entred upon them, and cut down five Elms there, upon which they were at Iſſue: And it was found that a Servant of the ſaid Marſhall had entred and cut them, and that in the preſence of the ſaid Marſhall his Maſter, and by his commandment: It was the Opinion of the Court, that the Condition was broken, and that the Maſter was the principal Treſpaſſer.

Trin. 30 Eliz. In the Common Pleas. CCL. Babingtons Caſe.

HUmphrey Babington brought a Writ of Diſceit, and counted that T. S. was ſeized of Land, and held the ſame of the Manor of Rodely, which Manor is ancient Demeaſn; And that the ſaid T. S. being ſo ſeized a Writ of Entre ſur Diſſeiſin was brought againſt him, in which T. S. pleaded and loſt, and Iudgment was given againſt him. Et quod ipſe Humphridus extitit Dominus Manerii praedicti, and concluded, ad exhaeredationis ipſius Humphr • di periculum manifeſtum. Exception was taken to the Count, becauſe the words are, quod cum ipſe exiſtit Dominus Manerii praedicti: where he ought to ſay further,Amendment. Et tempore Judicii praedicti exiſtebat; for if the Recovery was before he purchaſed the ſaid Manor, his Action doth not lye, which Rhodes and Anderſon conceſſerunt, wherefore day was given to the Plaintiff to amend his Count.

32 Eliz. In the Exchequer. CCLI. Sir William Pelhams Caſe.

THe Caſe was, A. Tenant for life, the remainder in tall to B. &c. A by Deed indented and inrolled, bargained and ſold the Meſſuage ſo conveyed to W. P. in fee, who ſuffered a common recovery, in which A. is vouched; and ſo a common recovery had and executed; and this was before the Statute of 14 Eliz. And if the recovery ſhould bind B. and his remainder in tail was the queſtion, or if it be a forfeiture. Altham argued that here is a forfeiture: 1. It is to ſee if a common recovery ſuffered by Tenant for life (which here is the Bargainee) be a forfeiture or no by the common Law,1 Leon. 264. its not forfeited. 2 Leon. 60, 65. if no Execution be ſued upon the ſame Recovery. 2. If it be executed, then, if he in the remainder may enter for the forfeiture. When the Tenant for life bargains and ſells the Meſſuage, although upon it an eſtate in fee be limited, yet nothing paſſeth from him, but what he may lawfully paſs, and that was the eſtate for life of the Bargainor, for ſuch an eſtate only he might lawfully paſs; and here the Vendee is but Tenant for the life of another, and when of his own aſſent he ſuffers a common recovery, and that without right, it is a forfeiture: By matter in Fait a particular Tenant may commit a forfeiture, as well as by matter of Record: By matter in Fait he cannot commit a forfeiture, if not thereby the reverſion be not pulled out of him in the reverſion: As if a Leſſee for 10 years make a Leaſe for 1000 years, it is not a forfeiture, for by that the reverſion is not touched; but if he by matter of Record do any thing which ſounds to the diſinheriting of him in the reverſion, although in truth the ſame doth not touch the Inheritance, yet it is a forfeiture, Vid. 39 E. 3. 16. If Tenant for life pleads any thing againſt the right of him in the reverſion, it is a forfeiture, and by Finchden and Belknap, he cannot plead in the right, 5 Aſſ. 3. Tenant for life is impleaded in a Praecipe by a ſtranger, and confeſſeth the Action, upon which the Demandant hath Iudgment, the Leſſor enters, againſt whom the Demandant ſueth Execution: The Leſſor brought an Aſſiſe, and had Iudgment to recover, for it is a forfeiture, becauſe the Tenant for life hath admitted the reverſion in another, becauſe it is an alienation to the diſinheriting of the Plaintiff and of the Leſſor: 12 E. 3. Fitz Reſceipt 14. where Tenant for life pleaded in chief, or cannot deny or gainſay the Action of the Demandant, or makes default by Covin, he ſhall forfeit his Eſtate: But if a rent be demanded againſt Tenant for life, and he rendreth the ſame, it is no forfeiture, 12 Aſſ. 31. Tenant for life is impleaded by Covin, between him and the Demandant, and pleads in chief without aid prayer, upon which Iudgment is given, he in the reverſion enters in a Juris utrum againſt Tenant for life, who pleads feintly, traverſing the point of the Action, he in the reverſion ſhall not be received; for in as much as the Tenant hath traverſed the Action, he is not within the Statute of Weſt. 2. 3, 5. Default, Reddition, but he in the Reverſion may enter by the Common Law, 22 E. 3. 2. In Scire facias to execute a Fine againſt Tenant for life, who pleaded to the Inqueſt whereas in truth the Land in demand was not compriſed within the Fine, Iudgment is given for the Demandant in the Scire facias, he in the reverſion may enter: In our principal caſe, here is apparent and manifeſt Covin; for the Tenant for life voucheth without cauſe, and this Recovery is by aſſent, and is to the uſe of the Vendee, who is Tenant for the life of another, and therefore, by the Common Law, he in the Remainder may enter before Execution ſued: And it is well known that theſe common Recoveries are uſed for to dock Remainders in Tail, and that was the ſcope of this Recovery. And as to the Caſe of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat, who voucheth a ſtranger, the Demandant counterpleads the Voucher, and it is found for him, he in the Reverſion hath no remedy but by a Writ of Right; and if the Vouchee entreth, and loſeth by Action tryed, or default ut ſupra; that Book is to be intended of a Recovery executed; for there in ſuch caſe he in the Reverſion hath not an Entry, but is put to his Writ of Entry by the Common Law, Vide Br. Title Forfeiture 87. 24 H. 8. Tenant for life is impleaded, and prays in the Aid of a ſtranger, he in the Reverſion may enter; but if he doth not enter until the other hath recovered, then he cannot enter, but is put to his Writ of Entry, Ad terminum qui praeteriit, vel de ingreſſu ad Communem Legem, and therein he ſhall falſifie the Recovery; and there, by Brook, Voucher of a ſtranger is not cauſe of Forfeiture, for it doth not diſaffirm the Reverſion in the Leſſor: And he vouched 24 E. 3. 68. where Tenant for life pleaded in the right with aid prayer: And ſo he argued, that before Execution he in the Remainder might enter but after Execution is put to his Action: But in our Caſe, although that Execution be good, yet he in the Remainder may enter, for it is found by Verdict, that at the time of the Recovery he was within age, and that when he dyed, that he in the next Remainder was within age, and then no Entry ſhall be imputed, and then he ſhall not be driven to his Action: As if Tenant by the Courteſie makes a Feoffment with warranty, and dyeth; and the ſame deſcends to his Heir within age, yet he ſhall enter, although he hath not avoided the warranty in the life of his Anceſtors: Alſo he ſaid that the Statute of 32 H. 8. extended to this Caſe; for Sir William Pelham the Vendee was but Tenant for life, and although that he be but Tenant for the life of another, yet he is Tenant for life as fully as if he were Tenant for his own life, (or otherwiſe Tenant for life or lives.) Note this, the words of the Statute. As upon the Statute of 20 E. 1. which gives Reſceipt, de defenſione juris, the words are, Cum quis aliquod breve Domini Regis impetret verſus Tenentem per Legem Angliae, vel feod taliat' vel ſub Nomine Dotis, vel alio modo, ad terminum vitae; upon theſe words it is holden 11 H. 4. That where Land was given to one and his heirs for the life of another, that upon ſuch an Eſtate, he in the reverſion ſhould be received, by reaſon of theſe words, vel alio modo ad terminum vitae, &c. And although he who enters at the time of the recovery, was not next in remainder to the particular Eſtate, yet he is within the Statute of 32 H. 8. For he was in remainder at the time of the recovery, and at the time of the entry he in the immediate remainder was dead, and then he the next in remainder. Vide 15 E. 4. 9. by Litt. If I grant my Services to one for life, and he in a Praecipe brought againſt him, pleads in the right, or grants to another the ſaid Services in Fee, it is not a Forfeiture, for it is no Diſcontinuance. It will be objected, That the words of the Statute of 32 H. 8. are, That ſuch recoveries ſhall be utterly void, and if ſo, then he in the reverſion cannot be damnified, and then no cauſe of Forfeiture. So that it may be eaſily anſwered, That where Tenant for life doth any thing which ſounds to the diſinheriting of him in the reverſion, by matter of record, although the ſame doth not deveſt, or otherwiſe prejudice the Inheritance, yet it is a Forfeiture. Cook, to the contrary. Here in our Caſe is not any Covin in Sir William Pelham the Bargainee, he was deceived by the Bargainor; for he did not know but that the Bargainor was ſeized in tail according to the Covenant in the Indenture, by which the Bargainor covenanted that he was ſeized in tail at the time of the Bargain; and alſo to do any other act for aſſurance of the Eſtate of the Bargainee; and it was lawful for him to Vouch his Bargainor, and although he voucheth a ſtranger, it is not a Forfeiture. 39 E. 3. 16. Aid prayer of a ſtranger is a Forfeiture, and the reaſon of that is, becauſe he acknowledgeth the reverſion to be in a ſtranger, and that is the cauſe of Forfeiture. Vide Book of Entries 254. Where upon Aid prayer, the Party to have Aid ſhewed ſuch Special matter: But in our Caſe the Tenant for life hath vouched his Bargainor, and not without cauſe, for he hath a warranty from him, and the Demandant cannot Counterplead it, for he had a Seiſin, whereof he might make a Feoffment. As to the Caſe 14 E. 3. Fitz. Reſceit 135. Leſſee for life in a Praecipe againſt him without Aid prayer pleadeth to the Enqueſt the firſt day, he in reverſion may enter: It is true, he may enter, and enter into the Reſceit, but not into the Land for a Forfeiture; For then Fitzherbert would have abridged that Caſe in the Title of Entre Congeable, and not in the Title of Reſceit: And the Book in 5 Aſſ. 3. is good Law, for there the Tenant doth confeſs the reverſion to be in another; but in our Caſe the Tenant voucheth, which is a lawful Act, and according to the Covenants of his Purchaſe. And although the recovery was by agreement, yet it is not for that a Forfeiture; for if the Tenant for life voucheth truly, it is not a Forfeiture. Before the Statute of Weſt. 2. cap. 3. which gave reſceit to a woman, and to thoſe in reverſion, where the particular Tenant is impleaded, and made default, & reddere noluerit, no remedy for theſe Caſes, but a Writ of Right, but no Entry; and that was for the credit which the Law gave to recoveries, car ſi puiſſoit, then is reſceit given, but that only in the two Caſes aforeſaid: But afterward, becauſe it was found that many particular Tenants being impleaded, would plead faintly: The Statute of 13 R. 2. gave reſceit in ſuch caſe. And upon what reaſons were theſe Acts made, if in ſuch caſes the Entry was lawful? But after theſe two Statutes, another practiſe was deviſed; for ſuch particular Tenants would ſuffer recoveries ſecretly in ſuch ſort that thoſe in the reverſion could not have notice of it, ſo as they could not ante judicium, and prayer to be received; for the remedy of which miſchief the Statute of 32 H. 8. was made; by which, all recoveries had againſt the Tenant by the Curteſie, or otherwiſe for life or lives, by agreement of the Parties, of any Land whereof ſuch particular Tenant is ſeized, ſhould be void as Tenant by the Curteſie, &c. ſhould be void againſt him in the reverſion: And yet an Evaſion was found out of that Statute; for ſuch particular Tenant would make a Feoffment with warranty, and then the Feoffor ſhould be impleaded in a Writ of Entry, and he vouch the Tenant for life, who ſhould vouch over, and ſuch a Recovery was out of the Statute of 32 H. 8. for the recovery was not againſt ſuch particular Tenant, &c. For the remedy of which miſchief the Statute of 14 Eliz. was made; by which, it was provided that ſuch recoveries had, where ſuch particular Tenant ſhall be vouched, ſhould ve void, if ſuch recovery be had between them by Covin. And he conceived, That the Forfeiture is not in reſpect of the recovery it ſelf, but of the Plea pleaded by the Tenant: And here in our Caſe there is not any Covin found, or that Sir William Pelham knew that he was but Tenant for life; but it was found that the recovery was with their aſſent, and that was lawful, as this Caſe is, for they may agree to have ſuch recovery for further aſſurance; and ſo Sir William Pelham hath not vouched any but his Bargainor, and that according to their Covenants, and this Bargainor was not a bare Tenant for life, but had alſo a remainder in tail, although not immediately depending upon the Eſtate for life, which he cut off; therefore it was not meerly a feigned recovery: And Vide 5 E. 4.2. & Br. Forfeiture 87. where Tenant for life being impleaded in a Praecipe voucheth a ſtranger, it is not a Forfeiture, for it doth not diſaffirm the reverſion, &c. contra of Aid prayer, for a ſtranger may releaſe with warranty to Tenant for life, upon which he may vouch: And he reported in his Argument, That Bromley Chancellor of England ſent him to the two chief Iuſtices to know their Opinions upon theſe Points, and they were of opinion, That the Voucher of a ſtranger was not any Forfeiture, and alſo that after the recovery was executed, he in the remainder could not enter; but they conceived that the right of him in the remainder was not bound: And he ſaid, That after the recovery executed, he in the remainder could not enter, which ſee Br. Forfeiture 87. 24 H. 8. For if Entry in ſuch Caſe had been lawful, infiniteneſs of Suits would follow, which would be a thing againſt the credit of recoveries. As to the Objection of the Infancy the ſame will not help the matter, 6 H. 8. Br. Saver default 30. Recovery had againſt an Infant in which he voucheth, and loſeth, is not erronious; contrary upon default: And if an Infant Tenant in tail ſuffereth a recovery, it is diſcontinuance, for in ſuch Recovery Infancy is not reſpected. And in a Scire Facias upon a Iudgment had againſt the Father, the Heir ſhall not have his age. And he cited a Caſe out of Bendlowes Reports, 5 Eliz. Tenant for life, the remainder over to a ſtranger in Fee, Tenant for life is diſſeized by Covin, in a Praecipe quod reddat againſt the Diſſeiſor he voucheth the Tenant for life, who entreth into the Warranty generally, and voucheth over the common Vouchee, It was adjudged that that recovery was out of 32 H. 8. for the recovery was not had againſt the particular Tenant, but he was but Tenant in Law quia Vouchee; and alſo the recovery is a good bar to him in the remainder, notwithſtanding that he was within age at the time of the recovery. And at another time it was argued by the Barons, and Clark ſaid, That he conceived that the Entry of him in the remainder was lawful: It hath been objected that Pelham did not know that the Bargainor had but for life, or that any other perſon had any remainder in the Land, that is to no purpoſe to excuſe him; for 42 E. 3. every Purchaſor ought at his own peril to take notice of the Eſtates and Charges upon the Lands which he purchaſeth: For the Law preſumes that none will purchaſe without advice of Counſel, and without knowing the Titles of the Land. And although Statutes have been made to provide againſt the practiſes of particular Tenants, yet that is no Argument that no other remedy was before. And by Littleton, If Tenant for life joyneth the Miſe upon the meer right, it is a Forfeiture. And he held ſtrongly, That the Iudgment did not take away the Entry, a cauſe of Forfeiture being given before the Iudgment. 5 Aſſ 3. He in the Reverſion after Iudgment and Execution may enter. See alſo 22 Aſſ. 31 to the ſame purpoſe. For where Tenant for life is impleaded he ought to wait upon him in the Reverſion, and expect Inſtructions from him in defence, &c. and therefore if he maketh default, or confeſſeth the Action, it is a Forfeiture. And as to the ſuppoſed recompence, the ſame doth not help the Caſe, for this common Recovery is no other but an Aſſurance, and Recoverors are but Aſſignees, and they ſhall take advantage of Conditions by 32 H. 8. and a recoveror ſhall be ſeized to the uſe of him who ſuffers the recovery, if no other uſe be expreſſed. And he alſo held, that when Tenant for life bargains and ſells his Land by Deed inrolled; although no Fee paſſeth,1 Leon. 264. 3 Inſt. 251. b. Mores r. 212. 2 Leon. 60, 65. yet it is a Forfeiture; and that by reaſon of the Inrollment, which is matter of Record: And he ſaid, that if an Infant Tenant for life be diſſeiſed, the Diſſeiſor dyeth ſeized, and afterwards the Infant dyeth, that he in the remainder may enter: Gent. to the ſame intent: If Tenant for life, &c. the ſame is not ſimply a Forfeiture; for he may have a Warranty, or a Releaſe, or a Confirmation made to him: Attornment doth not give a right, but is only a conſent, yet if he who hath nothing in the reverſion will levy a Fine of it to another, and afterwards the Conuſee bringeth a Quid juris clamat againſt the tenant of the Land, and he Attorns, it is a Forfeiture. Manwood to the ſame intent: This is a new Caſe, and I have not read the Caſe in any Book, nor ſeen any Preſident of it: And it is a great Caſe, and a general Caſe, and worthy to be argued; and I conceive clearly, that here is a direct and expreſs Forfeiture at the Common Law, without any aid or reſtraint of any Statute to make it a Forfeiture: The dignity of Iudgment in the repute of Law hath been urged which ought to ſtand in force until they be reverſed by Error, or Attaint; And alſo Littleton hath been urged 481. where upon the Statute of Weſt. 2. cap. 3. he ſaith, that before the Statute aforeſaid, If a Leaſe had been made to one for life, the remainder to a ſtranger, and afterwards a ſtranger by feigned Action had recovered againſt the tenant for life by default, and alſo the tenant for life dyed, that he in the remainder had not any remedy: But there Littleton doth not report the ſame as his own Opinion, but as an Opinion conceived by a remainder upon the ſaid Statute; and it is in truth but a meer conceit. And as to the main point he took this diverſity: Such Recoveries, in which the title of the demandant ſtands indifferently to the Court, and Non conſtat, if it be good or not, being ſuffered by tenant for life by default or confeſſion without Aid prayer of him in the reverſion, do not make any Forfeiture, although the tenant for life hath not dealt well with him in the reverſion, not having prayed in aid of him: And in ſuch Caſe, If a Leaſe be made for life, the remainder over in Fee upon ſuch a recovery, he in the remainder ſhall have a Formedon in the remainder, or a Writ of Right, and ſhall not ouſt him who recovered without Action, and that by the Common Law. Then came the Statute of Weſt. 2. cap. 3. which gave to the Wife Cui in vita upon a Recovery againſt the Husband by default, whereas before ſhe had not any recovery but a Writ of Right, and notwithſtanding her former recovery ulterius neceſſe habet oſtendere jus ſuum ſecundum formam brevis quod prius impetraverat, and if his right be not better than the right of him in the Reverſion, he ſhall loſe the Land, notwithſtanding the Iudgment given before for him: And that Statute gave Reſceit or Entry ad terminum qui praeteriit, and that Statute is to be intended of ſuch Recoveries where a good, or at leaſt an indifferent Title is ſo as non conſtat Curiae, if it be good or not: After that, Tenant for life was driven to a near ſhift, and would not make default, or loſe by nient dedire, but would plead, but yet faintly; for the remedy of which Miſchief the Statute of 13 R. 2. was made, which gave Reſceit in ſuch Caſe; the particular Tenant being reſtrained by that Statute: He jugled yet, and practiſed to ſuffer a Recover ſecretly, without notice of him in the Reverſion: To remedy which Miſchief the Statute of 32 H. 8. was made, and that made ſuch Recovery had againſt ſuch particular Tenant void againſt him in the Reverſion. It hath been objected, That the Statute of 32 H 8. doth not give any Forfeiture in that Caſe, but makes that the Recovery be void, therefore he in the reverſion ought to tarry till after the death of the particular Tenant: To that I ſhall ſpeak after. But how our Caſe is a common Recovery, and conſtat Curiae, that the Demandant hath not any right, for the Tenant might have barred him, and in truth he who recovereth is but a Purchaſor: Alſo this recovery is not to the uſe of the recoverer, but to the uſe of him who was Tenant in it, and not paramount, as in the Caſe of a recovery upon a good title, a Leaſe for years made by him who after ſuffers a recovery, is good and ſhall not be defeated by the recoveree; otherwiſe it is where the recovery is upon a good Title. Vide Statute of Glouceſt, cap. 11. Where upon default of the Tenant, reſceipt is given for Leſſee for years, yet if the Tenant vouch upon default of the Vouchee, the Leſſee for years ſhall be received; and now reſceipt of Leſſee for years is out of the Book, for by the Statute of 21 H. 8. he may falſifie: But no reſceipt lyeth in the Caſe of a common recovery, for he who recovereth cannot ouſt the Termor. As to that which my Brother Clark hath ſaid, That the Bargain and Sale in this Caſe is not any Forfeiture, but when the Deed of Bargain and Sale is inrolled it is a Forfeiture, I am not of that Opinion; for although that the inrollment be of record, yet the Deed is not of record: for againſt the Deed inrolled a man may plead Infancy, although none can plead Non eſt factum to it. Alſo he held, that although by the Bargain and Sale, and the inrollment of it, the Bargainee had not Fee; for by ſuch act the reverſion is not removed; yet by the recovery, and the Execution of it, the Bargainee had gained the Fee out of the Leſſor; for the recovery is to the uſe of the Bargainee againſt whom it was had &c. It hath been objected, That he is only a Voucher, which peradventure was lawful in this Caſe, by reaſon of the Warranty paramount, or of a releaſe or confirmation with Warranty, and two Caſes have been vouched to ſuch purpoſe, viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe, vouched a ſtranger, the Demandant counterpleaded the Voucher, which was found for him, he in the reverſion had no remedy but by a Writ of Right: So if the Vouchee had entred and loſt, &c. As to that Caſe we ought to conſider, That every Book reported in our Law is not Law: But let us obſerve of what Authority the Caſe is, truly it is the conceit of the Reporter himſelf, for he puts the Caſe, and reſolves it: but there is no Iudge or Serjeant named in the Caſe, &c. The other Caſe is 5 E. 4. 2. Note by Hendon clearly; If my Tenant for life voucheth a ſtranger who entreth into the Warranty generally, and doth not know how to bar the Demandant, the Tenant ſhall recover in value, and the reverſion of him who hath in value ſhall be to me in lieu of my former reverſion: as releaſe to Tenant for life ſhall enure to him in the reverſion: But that is but the Opinion of one Serjeant, &c. But I anſwer to theſe Books, If the Demandant in ſuch recovery have a good title ſo as the Tenant, or the Voucher, as Hendon ſaith, know not how to bar the Demandant there ſuch a Voucher of a Stranger is not a Forfeiture, nor ſuch recovery ſuffered thereupon: for againſt his will and volens nolens he ſuffered it: But if the Tenant had good matter to bar the Demandant, and no good cauſe of Voucher, that the vouching of a ſtranger, or ſuffering of a recovery is a Forfeiture of his Eſtate: And here in our Caſe, the Defendant had not any title, The Tenant or Vouchee had not any Warranty, or cauſe of Voucher; But the Tenant might have barred the Demandant if he pleaſed. And he ſaid, That the Voucher only doth not make the Forfeiture; but much rather the Recovery; for when Iudgment is given, and Execution had, then is the Fee plucked out of him in the reverſion. 6 R. 2. If Tenant for life claimeth a Fee it is a Forfeiture; but here Pelham hath done more, for he hath gained Fee by the Iudgment, therefore à Fortiori it ſhall be a Forfeiture. But let us a little ſee, what medlings or attempts by the particular Tenant, are cauſes of a Forfeiture, and what not, 5 Aſſ. 3. Where A. brings an Entry againſt Tenant for life by colluſion to ouſt B. of his reverſion, ſuppoſing that the Tenant for life held of his Leaſe: The Tenant confeſſeth the Action, upon which Iudgment is given, B enters, and his entry adjudged lawful; for that recovery is adjudged in Law but an Alienation to the diſinheriſin of him in the reverſion; and here it appears That ſuch recovery by Covin, is but an Alienation, and without any ſtrength of a recovery. And he cited many other Caſes cited before by Altham, 14 E 3. Reſceit 135. Where Tenant for life pleads in chief, or prays in aid of a ſtranger where he might bar the Demandant, and will not, it is a Forfeiture: And alſo 22 E. 3. 2. & 27 E. 3. where Tenant for life in a Quid juris clamat Attorns unto the Conuſee upon a Fine levyed by him who hath not any thing in the Land, the ſame is a Forfeiture, and yet that Attornment doth not divert the Reverſion out of the Leſſor. 50 E. 3.7. & 8. Land was given by Fine in tail, the remainder over to a ſtranger in Fee, the Donee took a Wife, and dyed without Iſſue, the Wife accepted Dower aſſigned by a ſtranger, he in the Remainder brought a Scire facias againſt the Wife, that ſhe is Tenant in Dower of the Aſſignment of a ſtranger, and pleaded to the Title, the Demandant recovered, ſhe hath loſt her Dower, for ſhe hath not pleaded dutifully as ſhe ought, being a particular Tenant. Temps H. 4. Tenant for life loſeth his Land in a Recovery againſt him againſt his will, and thereupon brings Quod ei deforceat, and declares upon an Eſtate tail, and recovers, the ſame is a Forfeiture, becauſe he hath challenged a higher Eſtate, &c. 5 H. 7. Tenant for life joyns the Miſe upon the meer Right. 2 H. 6. Leſſee for years being ouſted, brings an Aſſiſe and recovers. 1 H. 7. Accepts a Fine of a ſtranger ſur Conuſans, &c. come ceo que il ad de ſon done. All theſe are Forfeitures. In our principal Caſe here, the Tenant who ſuffered the Recovery did not plead at all to defend the Right; but where he might have barred the Demandant, he gave ſtrength to his pretended Title, and made it a perfect Title, and by ſuffering the Recovery and Iudgment to paſs, had taken away the Reverſion out of the Leſſor to whom he owed Fealty, and therefore it is a Forfeiture: And without doubt it is apparent to the Court, that the Demandant in this Recovery hath not any Title; for the Recoverers in ſuch Caſes are but Aſſignees and Purchaſors: which appeareth by the Statute of 7 H. 8. cap. 4. which gives Diſtreſs and Avowry to Recoverers, &c. As to the inventing of Recoveries, it was a neceſſary Device; for it was to take away Eſtate tails which were the cauſes of grand Miſchiefs and Inconveniencies in this Realm; and it was great reaſon, for Tenant in tail might by the Common Law alien his Land poſt prolem ſuſcitat, and then he had an Inheritance and might commit Waſte: But he was ſo reſtrained by the Statute of Weſtm. 2. all the Realm, and the Subjects of it, were inveigled thereby; Ioyntures of Wives, Leaſes of Farmers Mortgages to Creditors, Statutes, and other Aſſurances defeated by their deaths, which was againſt the Common Law and all Conſcience: Theſe matters tending to the knowledge of the Iuſtices, and the Miſchiefs thereupon enſuing very frequent, and that Tenant in tail was become a perillous Fellow, and there was no ſafe dealing with him; Then they taking into conſideration that ſeveral Warranties and Aſſets, and collateral Warranty without Aſſets, for that in it ſelf implyed Aſſets did bar him, Icil. the Entail, upon that conſideration they grounded the practice and uſage of common Recoveries; ſo that by that means Tenant in tail has poteſtatem alienandi, as he had at the Common Law, becauſe his authority was reſtored to him, and injury done to no man: But as to Tenant for life, he never had poteſtatem alienandi: And as to that which hath been ſaid, That the Recovery ſhall ſtand in force till after the death of the Tenant for life; and in our Caſe here, Tenant in tail is living; certainly if the Law ſhould be ſuch, great miſchief would follow, for then greater Ioyntreſſes, the Widows of great Perſons, having allowed unto them great and ſumptuous Houſes, and Lands furniſhed with Timber of great value, might ſuffer ſuch Recoveries and ſo having plucked the Fee out of the Heirs, might commit Waſte, and the ſame ſhould be diſpuniſhable, &c. which ſhould be an intolerable Miſchief. And ſo he concluded that this ſuffering of a Recovery was a Forfeiture, and Iudgment was given accordingly.

CCLII. Grendon and Albanies Caſe.

JOhn Grendon brought Treſpaſs for breaking of his Cloſe againſt Tho Albany: And upon the pleading, the Caſe was, That Francis Bunny was ſeized, and 1 May, 20 Eliz. by Deed indented enfeoffed N. H. to the uſe of the ſaid Fr. Bunny for term of his life, the Remainder to D. in tail, the Remainder to E. in tail, the Remainder over to F. in Fee: In which Deed of Feoffment a Proviſo was, That if it ſhould happen one P. P. to dye without Iſſue Male of his Body, that then it ſhould be lawful for the ſaid Fr. Bunny at any time during his life, by his Deed Indented to be Sealed and Delivered in the preſence of three credible Witneſſes, to alter, change, diminiſh or amplifie any uſe or uſes limited by the ſaid Deed, & aliquem uſum vel uſus inde alicui perſonae, &c. Limitare poſt mortem ipſius Fr. to begin: After which the ſaid Fr. Bunny 1 Aprilis, 23 Eliz by his Deed Indented, did renounce, relinquiſh, and ſurrender to the ſaid N. H. D. E. & F. all ſuch Liberty, Power and Authority which he had after the death of the ſaid P.P. without Iſſue, ut ſupra: And further remiſed, releaſed, and quit-claimed to them the ſaid Condition, Promiſe, Covenant and Agreement, and all his ſaid Power, Liberty and Authority, and further granted to them and their Heirs, that at all times then after, as well the ſaid Condition, Promiſe, Covenant and Agreement, as the ſaid Power, Liberty and Authority ſhould ceaſe, and to all purpoſes ſhould be void; after which P. P. dyed without Iſſue, 1 Maij 23 Eliz. after which 20 March 24 Eliz. the ſaid Fr. Bunny, by Indenture between him and the ſaid D. Sealed and Delivered, ut ſupra, altered the former uſes, and covenanted and agreed with the ſaid D. that from thenceforth the ſaid N. H. and his Heirs ſhould be ſeized to the uſe of the Plaintiff and his Heirs, &c. And note, that in this Caſe Fr. Bunny being but Tenant for life, enfeoffed one Tomſon, upon whom the ſaid D. entred for a Forfeiture. And it was argued by Altham, That by the Feoffment by Fr. Bunny to Tomſon, the Liberty and Power aforeſaid was not extinct or loſt, for this Liberty and Power was not then a thing in eſſe, for then was P. P. alive; and alſo the Liberty is meerly collateral to the Land whereof the Feoffment was made, 39 E. 3. 43. Fitz The Son and Heir apparent diſſeiſed his Father, and thereof made a Feoffment to a ſtranger, the Father dyed, now againſt his own Livery the Son ſhall not enter; but if the Son dyeth, then his Son ſhall enter, which proves that the Livery is not ſo violent to determine a future right, but that afterwards it may be revived, à fortiori in our Caſe where the thing pretended to be extinct is meerly collateral. 36 E. 3. Fitz. garr. 69. In an Aſſiſe of Common, the Releaſe of the Father with Warranty is not a bar, becauſe it is of another thing. 15 H. 7. 11. Ceſtuy que uſe, wills by his Will, that his Feoffees ſhall ſell his Lands, and dyes, the Feoffees make a Feoffment to the ſame uſe, yet they may well Sell, ſo as againſt their Livery, the authority to ſell remains to them: And he put Brents Caſe, Dyer 340. A future uſe limited to a Wife which ſhall be, ſhall not be prevented by a Fine or Feoffment; and ſo by the Statute of fraudulent Conveyances, 27 Eliz. cap. 4. where a Conveyance is made with clauſe of Revocation, if afterwards the party who made ſuch a Conveyance, ſhall Bargain, Sell or Grant the ſaid Land to another for Money, or other good Conſideration paid or given, (the firſt Conveyance not being revoked) that then ſuch former Conveyance againſt the latter Purchaſor ſhall be void &c. The other matter was, admitting that the ſaid Power and Liberty be not extinct by the ſaid Feoffment, if by the Indenture of Renunciation, Relinquiſhment, Releaſe, &c. it be deſtroyed; and he ſaid that a thing which is not in eſſe, cannot be releaſed, Litt. 105. & 4 H. 7. 10. A Leaſe for years to begin at a day to come, cannot be releaſed before it comes in eſſe, 11 H. 6. 29. Br. Damages 138. In Detinue, the Defendant would confeſs the Action, if the Plaintiff would releaſe the Damages; and the Plaintiff would have ſo done, but could not before Iudgment; for before Iudgment the Plaintiff had not Intereſt in the Damages, but he is intituled to them by the Iudgment: So Lands in ancient Demeſne are recovered at the Common Law, and Execution had accordingly and afterwards the Tenant releaſes to him who recovers; and afterwards the Lord reverſeth the Iudgment the Tenant notwithſtanding his releaſe may enter, for his Title which accrued to him by the reverſal was not in eſſe, at the time of the releaſe, Vide 98. contr. And it was adjudged 23 Eliz. in the Caſe of one Falſor, That where Leſſee for years deviſed his term to his Wife if ſhe ſhould ſo long live, and if ſhe dyed within the term, that then the reſidue of his term ſhould go unto his Daughter, which ſhould be then unpreferred, and dyed, his Daughter unpreferred, releaſed to her mother all her right in the ſaid Land, the mother dyed within the ſaid term the releaſe ſhall not bind the daughter, for that at the time of that releaſe ſhe had no title. Cook to the contrary: And he ſaid, That by the Feoffment the ſaid Power and Liberty is extinct: And he agreed the Caſe cited before 15 H. 7 for in ſuch Caſe the Vendee of the Feoffees ſhall be in by the Deviſe, and not by the Feoffees. 9 H. 7. 1. The Husband makes Diſcontinuance of the Lands of his Wife, and takes back an Eſtate to him and his Wife by which the Wife is remitted they have Iſſue, the Wife dyeth the Huſband ſhall not be Tenant by the Curteſie; for he hath extinguiſhed his future right by his Livery. 12 Aſſ. P. ultimo. A Praecipe againſt A who loſeth the Land by an erronious Iudgment, and after Execution had, enters upon the Demandant, and makes a Feoffment, his Writ of Error is gone, 38 E. 3. 16. In a Scire Facias to execute a Fine, the Plaintiff recovers, and makes a Feoffment in Fee, and afterwards the Tenant by Scire Facias by Writ of Diſceit reverſeth the Iudgment, now the Plaintiff in the Scire Facias ſhall not have a new Scire Facias, 34 H. 6. 44. A. recovers againſt B. by falſe Oath, and after Execution had, B. enters and makes a Feoffment to a ſtranger, who Enfeoffs him who recovers, it is a good Bar in an Attaint. 27 H. 8. 29. The Feoffees to an uſe are diſſeiſed, the Diſſeiſor Enfeoffs Ceſtuy que uſe, who Enfeoffs a ſtranger, now by that Feoffment his right to the uſe is gone. And as to the releaſe, the ſame is not properly a releaſe, but rather a defeaſance to determine the Power and Authority aforeſaid, as if A enfeoffed B. with Warranty, and afterwards B. covenants with A. that the ſaid Warranty ſhall be void, the Covenant ſhall enure to defeat and determine the Warranty. And afterward Iudgment was given againſt the Plaintiff.

CCLXXIII. Sir Francis Englefields Caſe. Vide this Caſe Reported by Cook in Rep. 7. and by Popham 18.

THe Caſe to recite at large was this: Sir Francis Englefield Kt. being ſeized in Fee of the Manor of Englefield in the County of Berks, and of divers other Lands in the firſt year of Queen Eliz. departed out of the Realm by Licence of the Queen for a time, and remained out of the Realm in the parts beyond the Seas above the time of his Licence, whereby the Queen by her Warranty under her Privy Seal required him to return, upon which he was warned, but did not come; whereupon the Queen ſeized his Lands for his contempt. After which the Statute of Fugitives was made 13 Eliz. upon which by Commiſſions found upon this Statute, all his Lands were newly ſeized; and afterwards 17 Eliz. by Indenture made between him and his Nephew, and Sealed by the ſaid Sir Francis at Rome, the ſaid Sir Francis covenanted with his ſaid Nephew, upon conſideration of Advancement of his Nephew, and after conſideration to raiſe an uſe, that he and his Heirs, and all others ſeized of the ſaid Manor, &c. ſhall hereafter ſtand and be ſeized of them, to the uſe of himſelf for the term of his life, without impeachment of Waſte, and afterwards to the uſe of his Nephew, and of the Heirs Males of his Body, and for default of ſuch Iſſue, to the uſe of the right Heirs and Aſſigns of the Nephew for ever, with a Proviſo, that if the ſaid Sir Francis ſhall have any Iſſue Male of his Body, that then all the ſaid Vſes and Limitations ſhall be void and that the ſaid Manors, &c. ſhall be as before. Afterwards the ſaid Sir Francis was attainted of Treaſon, ſuppoſed to be committed by him, 18 Eliz. at L. in partibus tranſmarinis; and the Attainder was firſt by Outlary, and afterwards by Act of Parliament 28 Eliz. by which the Forfeiture of the ſaid Condition was given to the Queen; and at the ſame Parliament it was Enacted, That all and every Perſon and Perſons, which had, or claimed to have any Eſtate of Inheritance, Leaſe, or Rent, they not entred of Record, or certified into the Court of Exchequer, of, into, or out of any Manors, Lands, &c. by or under any Grant, Aſſurance, or Conveyance whatſoever had or made at any time after the beginning of her Majeſty by any perſons attainted of any Treaſons mentioned in the ſaid Act, after the 8 day of Feb. 18 Eliz. or within two years next enſuing the laſt day of the Seſſion of the ſaid Parliament, ſhall openly ſhew in the Court of the ſaid Exchequer, or cauſe to be openly ſhewn the ſame, his or their Grant, Conveyance or Aſſurance, and there in the Term time, in open Court, the ſame ſhall offer, and Exhibit, upon his or their Oath, affirming that they have not the ſame, nor can come by it, or that it was never put in writing, then the Effect thereof to be entred and inrolled of Record, or elſe every ſuch Aſſurance ſhould be void, and of none Effect to all intents and purpoſes, ſaving to every perſon and perſons, (other than the parties and privies to ſuch Conveyance, and ſuch as ſhall not Exhibit the ſaid Conveyance according to the true meaning of this Act) all ſuch rights, &c. Whereupon the ſaid Francis the Nephew, the 20 day of November, 30 Eliz. in his own perſon affirmed upon his Oath, that he had not the ſaid Conveyance, nor knew not how to come by it, but delivered the Effect of the Aſſurance, omitting the time when it was made, otherwiſe than that it was made after the beginning of the Queens Reign, and before the Treaſon committed by Sir Francis, and before the Statute of 13 Eliz. againſt Fugitives, and omitting alſo the laſt clauſe of the tender of the King; and this he offered openly in the Court of the Exchequer the ſame day: After which the Queen being moved with the ſaid Condition, made a Warrant by Letters Patents under the Great Seal, dated 17 Martii, 13 Eliz. to Rich. Broughton and Henry Bourcher Eſquires for her, and in her place and ſtead, to deliver or tender to the ſaid Francis the Nephew a Ring of Gold, to the intent to make void the uſes and limitations limited by the ſaid Indenture, and to return their proceedings upon it into the Court of Exchequer; whereupon they made a tender of a Ring of Gold to the ſaid Francis the Nephew the 18 day of November, 31 Eliz. which he refuſed to receive. And the two years after the ſaid Seſſion of Parliament was the 13 day of March 31 Eliz. and the ſaid Broughton and Bourcher returned all this that they had done as before, with their Commiſſion out of the Exchequer: And this Caſe being a great caſe, and conſiſting of many doubts and queſtions, was often argued. And this Term, ſcil. 33 Eliz. It was argued by Moor of Counſel on the part of Francis Englefield; and he ſaid, when Sir Francis Englefield covenanted to ſtand ſeized to the uſe of himſelf for life, &c. this was not any new uſe, but part of the ancient uſe which was in Sir Francis before, for there was no Conſideration to raiſe a new uſe to himſelf; for a Conſideration is a cauſe, or an occaſion meritorial requiring a mutual recompence in fait, or in Law, Dyer 16 Eliz. 33. b. mutual. 1. of each part, and here this ancient uſe remaineth. For Sir Francis cannot ſimul & ſemel agree and ſuffer, and here is a bare Covenant without any Conſideration on the part of Sir Francis, which ſee Dr. and Student 100. cited by Br. Feoffments to Uſes 46. A man cannot limit an uſe to himſelf to be a new uſe upon an Eſtate executed, as upon a Feoffment, but it ſhall be the ancient uſe; much leſs upon a Covenant. And that was Milfords Caſe, Paſch. 31 Eliz. Rot. 154 in the Kings Bench, where an uſe limited to the right Heirs of the Feoffor was holden the ancient uſe, quod vide alſo in the caſe of the Earl of Bedford, and there is no difference between our caſe and the ſaid caſes, unleſs in the ſaid caſes the uſe is limited in the end, and in our caſe in the beginning of the Conveyance. But perhaps it will be Objected, That the particular Eſtate ſhall be good for neceſſity for to ſupport the Eſtate limited in the Remainder, which is limited upon good conſideration, for otherwiſe the Remainder ſhall be diſtrained: That is not any reaſon, for that conceit in Bayntons caſe in Plow. Com. 307. 8 Eliz. hath been over-voted to be no Law in the caſe of the Lord Paget in this Court very lately. And he ſaid, That the condition conceived in the Proviſo is not given to the King. By the Common Law in caſe of Eſcheat, the party comes in the Poſt; but a Condition runs in privity: And although the Statute of 33 H. 8. gives to the King Conditions, yet it doth not give the performance of them, or ability to the King to perform them. And there are three Reaſons wherefore this Condition cannot paſs to the King: 1. There is a Condition in the Proviſo which precedes the Condition of the Tender, viz. If the ſaid Francis my Nephew be given to intolerable Vices, then if the ſaid Sir Francis deliver or offer, &c. and in the whole pleading it is not averred, that the Nephew was given to intolerable Vices; therefore the precedent Condition not being performed, the ſecond Condition is not ripened, nor in ſeaſon. 2. The ſubſtance of this Condition conſiſts in the will and pleaſure of Sir Fr. Englefield, therefore it cannot be given to the Queen. 3. The prejudice which ſhould come to Francis the Nephew if this Condition ſhould come to the Queen, Vide Br. Temps H. 8. A Founderſhip cannot Eſcheat, or be forfeited by Attainder of Felony or Treaſon, for it is a thing annexed to the Blood which cannot be ſeparated; and he ſaid alſo that the Condition was gon before that tender, for the Conveyance by which the Condition was granted, was made void by the Act of 29 H. 8. cap. 3. by which it is Enacted, That every perſon within two years after the laſt day of this Seſſion ſhall openly ſhew and bring forth into the Exchequer his Conveyance, and there in the Term time, in open Court ſhall Exhibit the ſame to be entred and inrolled of Record; and here the end of the Seſſion was ſuch, that all the Terms of the ſaid two years were paſſed before the tender made by the Queen; and although the two years were not paſt, yet all the Terms were paſt, and the Conveyance ought to be ſhewed in Term time, therefore the true time is incurred before the Tender, and then the Conveyance is void, and by that the Condition gon. When the Queen was Tenant for the life of Sir Francis, and makes a Leaſe for years, and afterwards by the Condition hath the Inheritance, if now ſhe ſhall avoid the Leaſe made by her when ſhe was Tenant for life? A Diſſeiſor makes a Leaſe, or grants a Rent-charge, and afterwards the Diſſeiſee releaſes unto him, he ſhall not avoid his own Act. A man ſeized in the right of his Wife makes a Leaſe for years, hath Iſſue, and ſo is intitled to be Tenant by the curteſie; the Wife dyeth, he ſhall not avoid his Leaſe: Feoffor and Feoffee upon condition joyn in a Leaſe for years, the Condition is performed on the part of the Feoffor, he ſhall not avoid his Leaſe: And the Prerogative of the Queen ſhall not alter the matter againſt aequum & bonum: As to the Statute of 29 Eliz. it was not the intent of that to avoid Eſtates claimed for, or by the Queen; for the Eſtate was made for the benefit of the Queen. As to the words of the Statute, every perſon or perſons which hath, or claimeth to have, &c. the Queen is not within the words. If a Statute ordains attendance, or reſtraint of any Liberty which was before at the Common Law, there the Queen ſhall not be within it: As to attendance, the Queen is not bound to make claim upon a Fine levied: As to re-grant, the Queen is not bound by the Statute of Weſtm. 3. Quia emptores terrarum: alſo where matter of penalty is impoſed. Alſo here is an Oath to be taken, &c. the Queen being Tenant for the life of another, leaſeth the Woods, and grants to the Leſſee power to cut the Woods, and convert them to his own uſe. Now, if after the Inheritance cometh to the Queen, if the Queen may impeach her Grantee; truly the property of the Woods and Trees was in the Queen at the time of the Grant, and although the Inheritance came to the Queen afterwards, yet the ſame ſhall not overthrow the firſt Intereſt of the Grantee. Leſſee for life, or for years, before the Statute of Glouceſter, could not be impeached for Waſte; therefore, as I conceive, the property of the Trees was in him, for there was no remedy for them againſt him. See the reaſon of that in Dr. and Student, Quaſi, the property of the Trees paſs to the Leſſee with the Demiſe, which ſhall be taken ſtrongly againſt the Leſſor. If the Leſſee cutteth the Trees, the Leſſor ſhall not have Treſpaſs againſt him, nor Detinue for the Trees. Leſſee without impeachment of Waſte cutteth the Trees, and leaves them upon the Land, and dyes, his Executors ſhall have them, and not the Leſſor. The Leſſor grants omnes boſcos, & arbores ſuas, nothing paſſeth, for they paſs to the Leſſee, if they be not excepted. The Leſſor againſt his own Leaſe cuts the Trees without the agreement of the Leſſee, Treſpaſs lyeth, 5 H. 4. 56. The Heir being in Ward, cut Trees in his Lands in the poſſeſſion of his Guardian, who brought an Action againſt the Heir, it was adjudged maintainable, although the Free-hold was in the Heir. Egerton Solicitor to the contrary. Admit the uſe in Sir Francis be the ancient uſe, yet it is but for life; and then when the Queen, having the Eſtate of Sir Francis, makes a Leaſe for 40 years, with the grant of the woods, the ſaid Leaſe was void, for the Queen was deceived in her Grant: Sir Francis was puniſhable for Waſte; therefore the Queen having his Intereſt, ought not in Iuſtice to have cut the great Wood. And it is to be preſumed, That if the Queen had known the ſmallneſs of her Eſtate, ſhe would not have made ſo great a Leaſe, nor ſuch a Grant of the Wood. The King ſeized of Land in his own right, reciting by his Letters Patents, that he hath it by Attainder of J. S. gives the ſame to another, the Gift is void. The King licenceth one to appropriate an Advowſon, without being informed that the ſame is holden in chief, it is void. A licence to alien, whereas in truth the Land is holden in tail, the Reverſion or Remainder in the King, is alſo void; and here in our caſe, the Queen hath but a particular Eſtate for the life of another, and here out of that petty Eſtate is drawn a Leaſe for 40 years, where Leſſee for life was 60 years of age at the leaſt, and alſo a Grant of all the Trees: If the Queen hath a particular Eſtate, and grants totum Statum ſuum, without reciting of ſuch particular Eſtate, the Grant is void; the Queen hath the Profits of the Lands of one who is Outlawed in a perſonal Action, and grants to another the Land it ſelf, it is void, for it is a wrong to a third perſon, which the King cannot do. But here, the Special Intereſt of the Queen ought to be recited; Now when the Queen being Tenant for the life of another, makes Leaſes ut ſupra, and afterwards the Fee cometh to the Queen, the Eſtate out of which the Leaſes are derived being determined, the Leaſes alſo are determined, ſcil the Eſtate for the life of another by the acceſſion of the Fee-ſimple, and the Queen is in by a new right: It was adjudged 29 Eliz. here, That where the Queen had the Land of a Fugitive for the life of another, and leaſed the ſame to another Quam diu in manibus noſtris fore contigerit and after the Fee-ſimple of the Fugitive came to the Queen by his Attainder, the ſame Leaſe was void. King E. 6. gave to his Siſter Mary Manerium de B. for her life, ſecundum tenorem & effectum Teſtamenti ſive ultimae voluntatis of King Hen. 8. whoſe Will was, that ſhe ſhould have it as long as ſhe remained unmarried; ſhe granted a Rent-charge, King E. 6. dyed, by which the Fee deſcended to the ſaid Mary, being Queen of England: and afterwards ſhe married. He made it a Quaere, if the Rent be not gone. Dyer 3 & 4 Phil. & Mary 240. But Bendloes Reports the ſame Caſe to be adjudged, That the Rent was gone. Sir Francis Englefield 1 Eliz. with leave of the Queen went beyond Sea, his Licence expired, the Queen directed to him a Privy Seal with her Commandment to return, which he received, but did not return, but adhered to the Queens Enemies there, upon which the Queen ſeized his Lands, and 8 Eliz. granted a Manor parcel thereof, and all profits thereof, quam diu in manibus noſtris fore contigerit, afterwards by Act 14 Eliz. (for there was ſome doubt if the Queen might make Leaſes, grant Copyholds or uſual Woodfalls of ſuch Lands, or only take the ordinary profits thereof, as veſturam terrae) it is explained, that during the Intereſt of the Queen, ſhe might do, ut ſupra, as Tenant for the life of another might do, upon which a new Seizure was made for the Queen, and a Steward appointed by the Queens Letters Patents, who held a Court, and took Surrenders in the hand of the Queen, and granted Admittances, &c. And it was reſolved by the two Chief Iuſtices, That the two Seizures gave not the Queen any other or better Seiſin in the ſaid Manor than ſhe had before, by the firſt Seizure at the Common Law, notwithſtanding both the ſaid Statutes, and ſo the Courts holden by the Queen void, and all Surrenders and Admittances alſo: And ſo it is adjudged 23 Eliz. Dyer 375. upon which it may be concluded, That if by the ſaid Statutes, or any of them had had a new right, the laſt Copy had been good, notwithſtanding the Grant of the Manor before: Alſo for 8 Aſſ. the King grants Cuſtodiam terrae & haeredis quam diu in manibus noſtris fore contigerit, the Heir being a Daughter, and after a Son is born, now the Grant of the King is void; Tenant in tail, the Reverſion in the King diſcontinues, the Diſcontinuee is attainted, the King ſeizeth, and leaſeth for years, Tenant in tail is attainted of Treaſon; now the Queen ſhall avoid her own Leaſe. So if the Diſſeiſor be attainted, upon which the Queen ſeiſeth, and leaſeth, and afterwards the Diſſeiſee is attainted: And he cited the Caſe of the Abbot of Colcheſter, 13 Eliz. The Abbot committed Treaſon, and afterwards by the Statute, or by Surrender, the Abby came to the Crown, who leaſed the Land for years, the Abbot is attainted of the ſaid Treaſon; now the King ſhall be ſeized by force of the Attainder, and ſhall avoid his Leaſe. As to the Leaſes made to the Defendant by the Queen, one was made after the Statute of 29 Eliz. and the ſame is not ſaved by the ſaving there; for the words are, of Eſtates then in eſſe. 1. Such Eſtate as they had before the making of the Act: As to Leaſes made before they are drowned in the Fee-ſimple, which accrued to the King by the Attainder &c. and here by this Statute, the Eſtate of the Queen for the life of another is not ſaved by the Statute, and then the Leaſes derived out of it are not ſaved. The Queen is not bound by the ſaid Statute to exhibit any Conveyance, for ſhe ſhall not take any Oath, according to the Statute; and if the Queen be not within the Body of the Act, ſhe is not within the ſaving. Now as to the Condition, The Statute of 33 H. 8. gives to the Queen Vſes, Rights, Conditions. It hath been Objected, That ſuch Conditions are intended to be given to the King, which are to be performed on the part of the Donee, Leſſee, Grantee, Covenantee, but not on the part of the Grantor, &c. For it was in the will of the Grantor if he would perform them or not, and a Will cannot be transferred over. But as to that it may be anſwered, That a Will by Parliament may be transferred over, for Parliamentum omnia poteſt. It hath been Objected. If that ſhall be ſaid the Will of Sir Francis. which now is the Will of the Queen, it ſhall be a great prejudice to Francis Englefield the Nephew; for now he ſhall be doubly bridled by his Vncle, and by the Queen. It hath been Objected, That here is a Conditional Condition, 1. If the Nephew ſhall be given to intolerable Vices, and it is not added to enable the Queen to take advantage of the Condition, that he is otherwiſe than of good behavior and converſation but the words of the Proviſo clear the matter, 1. Leſt he ſhould be given to intolerable Vices, and not if he be given, &c. So as it is not a Condition to a Condition, but a Motive to a Condition. And the Statute of 29 Eliz. by which Sir Francis was attainted, gives to the King all conditions. It hath been objected, that in the ſaid Statute of 29 Eliz. is a ſaving, by which Leaſes made by the Queen are preſerved: But if that Proviſo be well obſerved, it doth not extend to our caſe. 1. That Act extends to make void any Grant, Leaſe, &c. made by the Queen after the Treaſon committed, &c. but that ſhall be of ſuch force, as if the ſaid Act had not been made. As to that I ſay, That this Statute doth not add or detract from ſuch Leaſes, but leaves them as it found them; for the Statute gives to the Queen the Condition, which Condition avoids the ſaid Leaſes; for it avoids the Eſtate of the Queen out of which the ſaid Leaſes are derived: And although that the Conveyance, as to the benefit of Sir Francis or his Nephew, be void by the Statute for not Inrollment of them, yet it is not utterly void as to the Queen alſo. The Statute of 1 Eliz. Enacts, That Leaſes made by Biſhops againſt the Form of the Statute, ſhall be void: Yet they ſhall not be void againſt the Biſhop himſelf or againſt the Leſſor: Exception hath been taken, for that the tender of the King is not found by Office: But he needs no Office, for the tender is the Act of the Queen her ſelf, there ſhe ought not to be informed of it; for to what purpoſe ſhall the Queen be certified of that which ſhe her ſelf hath done: The Queen makes a Leaſe for years, upon Condition that the Leſſee ſurrender to her the Manor of B here for the not doing of it, no Office is requiſite. Tenant of the King in Capite aliens by Fine, that needs no Office, for that appears upon Record; ſo here. And although the Condition be returned in the Exchequer after the Term; yet it is well enough, for the Exchequer is never ſhut, as to take and receive Money, Certificates made to be Inrolled; although it be ſhut as to all Iudicial Acts. And although no tender at all be certified, it is not to the purpoſe, for the tender makes the Eſtate void without any other thing: And it is not like to a Capias ad ſatisfaciendum, for that is Ita quod Habeas Corpus, &c. therefore the Arreſt is not ſufficient by it ſelf; but the ſame ought to be remembred with an Ita. quod, &c. But as to that which hath been ſaid, That the Queen ſhall not avoid her own Leaſe, the ſame is not ſo, nor in caſe of a common Perſon: As if Tenant in tail enfeoffeth his Heir within age, who makes a Leaſe for years at his full age, Tenant in tail dyes, Now the Iſſue ſhall avoid his own Leaſe, for he is remitted: A Diſſeiſor levies a Fine to a ſtranger, the Diſſeiſee enters upon the Conuſee, and enfeoffs the Diſſeiſor, now he ſhall avoid his own Fine, à multo fortiori in the Caſe of the King. Now it is to ſee. If the Grant of the Wood by the Queen, being Tenant for the term of anothers life, be good, or not. He conceived it was not; for ſhe was deceived in her Grant, not knowing that ſhe was but a particular Tenant: It was Objected, That the Queen hath property and right in the Trees and Woods, foraſmuch as no Waſte or Treſpaſs lyeth againſt her if ſhe caſt them down: Certainly the Leſſee, if the Trees and Woods be not excepted, hath the property in them, but not the abſolute property, for the Writ of Waſte ſhall ſay, ad exhaered' Q • erentis, for he cannot cut them, Id enim tantum poſſumus, quod de jure poſſumus, perhaps the Leſſee ſhall have the Wind-falls, becauſe they are ſevered from the Inheritance by the act of God, not of the Leſſee himſelf; and ſee 27 H. 6. Waſte 8. and alſo in Statham titulo Waſte. A. leaſeth to B. for life, without impeachment of Waſte, a ſtranger cuts Trees, and the Leſſee brings Treſpaſs, he ſhall not recover damages for the value of the Trees; for the property of the Body and the Tree is in him who hath the Reverſion, he may give it, by which it appeareth, that the Leſſee is not to recover, but only for the cropping and the breaking of his Cloſe, à fortiori in caſe where the Leaſe is made without the clauſe abſque impetitione vaſti, as the Caſe at bar is: And therefore when the Queen having ſo feeble an Eſtate, makes ſuch a Grant, ſcil. Grants all the Woods &c. the Grant is void, for ſhe was deceived in her Grant; by which (if it ſhould be good) ſhe ſhould wrong her Subject: A Grant to the Queen ſhall have a reaſonable conſtruction▪ as the Grant of a common Perſon. A. grants to the Queen Common in all his Lands, the Queen by that Grant ſhall not have Common, but in Lands commonable, not in his Land where his Corn is growing, or in his Orchard, or Gardens: Tenant for life grants all the Wood upon his Land, nothing paſſeth but that which he may lawfully grant. So in Caſes of Grants of the King, 22 Aſſ. 49. the King grants to one bona & catalla tenent' ſuorum, fugitivorum & qualitercunque dampnorum; the Grantee ſhall not have the Goods and Chattels of one who hath killed the Kings Meſſenger. So in Grants of Amercements, the Grantee ſhall not have a Special Amercement &c. So here, the Grant of all Woods ought to be intended of ſuch Woods (as Vnderwoods) which the Queen might lawfully grant without wrong to another. And he ſaid, That when the Queen hath granted the Land and the Woods for 40 years, that Grant cannot be divided; and the words of the Grant are, That it ſhall be lawful to cut the Woods during the ſpace of 43 years: Now foraſmuch as the Leaſe is ſurrendred ut ſupra, the liberty of cutting the Woods is gon alſo. A man bargains and ſells his Manor with all Woods upon it growing, the Deed is not Inrolled, ſo as the Manor doth not paſs, the Woods ſhall not paſs in groſs, for the Grant ſhall not be divided. See more after Sect. 276.

Trin. 31 Eliz. In the Kings Bench. CCLIV. Brown and Peters Caſe.

PHilip Brown Executor of Eliz. Brown, brought an Action upon the Caſe againſt John Peter, as Executor of W. Brown, and declared, That the ſaid William Brown was indebted to the ſaid Eliz. in 80 l. Cumque ad ſpecialem inſtantiam of the ſaid William Brown, It was agreed, that the ſaid William Brown ſhould retain the ſaid Sum in his hands until the ſaid Eliz. ſhould come of full age: In conſideration thereof he promiſed to give her 100 l. It was found for the Plaintiff, who had Iudgment to recover, and now the Defendant brought Error, and aſſigned for Error, becauſe the place of the Agreement was not ſhewed, Sed non allocatur; for that is the Conſideration which is not traverſable; alſo it is not ſhewed certain, that Brown retained the 80 l. for ſo long time, Sed non allocatur, for he ſhews in his Declaration, That the ſaid Sum was in the hands of the ſaid William Brown, and it ſhall be intended that ſo it there continued.

Trin. 31 Eliz. In the Kings Bench. CCLV. Higham and Cookes Caſe.

EJectione firmae by Higham againſt Cooke, The Plaintiff declared upon a Leaſe for years, to have and to hold to him from the Sealing and Delivery of it; and declared that the Sealing and Delivery was 1 Maij, and the Ejectment the ſame day: And this matter was moved in Arreſt of Iudgment, that the Ejectment could not be ſuppoſed the ſame day, for the Leaſe did not begin till the next day enſuing the Sealing,Ejectment. &c. But the Exception was not allowed by the Court; for where the Leaſe is to begin from the time of the Sealing and Delivery, or by theſe words for 21 years next following, the Ejectment may be well ſuppoſed to be the ſame day; for the beginning of the Leaſe is preſently upon the Sealing and Delivery, and ſuch a Leaſe ſhall end the ſame time and hour as it began.

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

IN an Action upon the Caſe upon Aſſumpſit, the Caſe was; Land was deviſed to a Feme-ſole for term of her life, and ſhe let the ſame to the Plaintiff for 5 years, to begin after the death of the ſaid Woman, and afterwards by Deed bearing date 18 October, leaſed the ſame Land to the ſame Plaintiff for 21 years to begin at Michaelmas before, and in pleading, it was ſhewed, That virtute cujus dimiſſionis (poſterioris) the Plaintiff entred, & fuit poſſeſſ. craſtino Michaelis. which was before the making of the Leaſe, and the Plaintiff in his Declaration declared, That the Defendant in conſideration that the Plaintiff had aſſigned to him the ſaid Leaſes, had promiſed to pay to him 630 l. It was found for the Plaintiff. Cook, For where the Plaintiff in an Action upon the Caſe declares upon two Conſiderations, in ſuch Caſe although the one be void, yet if the other be good and ſufficient, the Action is maintainable, but the Damages ſhall be given without reſpect had to the Conſideration inſufficient, and the Plaintiff was to declare upon both Conſiderations; for the Aſſumpſit upon which the Action is conceived, was in conſideration that both the Leaſes were aſſigned to the Defendant, and our Declaration ought to be according to the Aſſumpſit, and it was not material, although that one of the Conſiderations was utterly void. Another Exception was taken, Becauſe the Leaſe is ſet forth to be made 18 October, and that by virtue thereof the Plaintiff entred, Cro. Mich. Then the Plaintiff entring Cro. Mich. was a Diſſeiſor, and then being in by diſſeiſin, he could not aſſign his Intereſt to another, and that appears clearly to the Court upon the whole matter. But Cook ſaid, That ſhall not hurt us, for it is but matter of ſurpluſage to ſay, Virtute cujus, &c. As 20 H. 6. 15. the Plaintiff in Treſpaſs ſuppoſed by his Declaration, that the Treſpaſs for which the Action was brought, commenced 10 H. 6. with a Continuando until the day of the Action brought, viz. idem 14 Febr. 17 H. 6. where the Writ bore date 12 die Octobris, Anno 17 H. 6. And Exception was taken to the Declaration, becauſe the continuance of the time was not put in certainty. But the Exception was not allowed, for it is certain enough before the viz. the day of Writ brought, and ſo the viz, is void, and all that which follows upon it. And ſo here, this Clauſe Virtute cujus eſt, totum ſequitur eſt omnino void, 7 H. 4.44. Br. Action upon the Caſe 37. The Writ was Quare Toloniam aſportavit, & illud ſolvere recuſavit. Exception was taken to the repugnancy, for it would not be carried away, if it were not paid before; yet the Writ was awarded good, and the firſt word Toloniam aſportavit holden void: So here in the principal Caſe. As to the other Exception, it is clear, That here is not any Diſſeiſin upon this Entry of the Plaintiff before the making of the ſaid Leaſe; for there was a Communication betwixt the Parties of ſuch a Leaſe to be made, or of ſuch an Aſſignment, and peradventure the Entry was by aſſent of the other part, and then no Diſſeiſin. And poſito, it ſhould be a Diſſeiſin, yet the Plaintiff hath aſſigned all the Intereſt quod ipſe tunc habuit, according to the conſideration, and delivered to the Defendant both the Indentures of Demiſes, and ſo he hath granted all that which he might grant: And if it be a void Aſſignment or not, is not material, for quacunque via data, the Conſideration is good, and then the Aſſumpſit good alſo. Egerton Solicitor contrary: In every Action upon the Caſe upon Aſſumpſit, three things ought to concur, Conſideration, Promiſe, and breath of Promiſe; and in this Caſe the Aſſignment of the Leaſe to begin after the death of the Leſſor, is void, being but Tenant for life, and no Conſideration upon the confeſſion of the Plaintiff himſelf. And upon the ſecond Conſideration it appeareth, the Leſſor, viz. the Wife who held for life, had but a right to the Land demiſed, for ſhe was diſſeiſed; for he to whom the Land was after let, entred before the Leaſe was made; for it doth not appear that he entred by force of any agreement made before the Leaſe; therefore by his Entry he was a Diſſeiſor. It was alſo moved, That here was not any ſufficient conſideration, for by a bare or naked delivery Nihil operatur; and here is not any word of Give or Grant. To which it was anſwered, That the delivery of the Indenture was not a bare Bailment, but a Delivery to the uſe in the Indenture, and ſo it is pleaded, and therefore thereby an Intereſt paſſed, for ſuch a delivery cannot be countermanded. An Indenture with an Averment ſhall never make an Eſtoppel. Clench Iuſtice, If I deliver any thing to one for his proper uſe, an Intereſt paſſeth; but if it be to the uſe of another, no Intereſt paſſeth: The party may have uſum, but not proprietatem.

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

Contract.IF a Contract be made betwixt two here in England, ſcil. that one of them ſhall carry certain Goods of the others to Burdeux in France, and ſell them there, and with the mony thereof coming, ſhall buy other Goods for the uſe of him who was the owner of the firſt Goods, and ſafely them deliver to him in London: If now the party ſell them in Burdeux, and buyeth others with the monies thereof, and brings them into England, and there converts them to his own uſe; upon this matter an Action lyeth at the Common Law for the Contract, and the Converſion being the cauſe of the Action, was made in England: But if the Contract only was in England, and the Converſion beyond the Seas, the Party at his Election may ſue at the Common Law, or in the Court of Admiralty: And if a Merchant here write to his Factor in France to receive certain Merchandizes which he hath ſent to him, and to Merchandize with them for his uſe; if the Factor receiveth them, and converts them to his own uſe, the Father ſhall be ſued in the Admiralty.

25 Eliz. CCLVIII. The Earl of Huntington and the Lord Mountjoyes Caſe.

IT was agreed by the two Lord Chief Iuſtices,1 And. 308. upon conference had with the other Iuſtices in the Caſe between the Earl of Huntington and the Lord Mountjoy, That where the Lord Mountjoy by Deed indented and inrolled, bargained and ſold the Manor of Camford to Brown in Fee, in which Indenture a Clauſe was Proviſo ſemper; and the ſaid Brown covenants and grants cum and with them the Lord Mountjoy, his Heirs and Aſſigns, That the ſaid Lord, his Heirs and Aſſigns, might dig for Ore in the Waſts of Camford. And alſo to dig Turf there to make Allom and Copperice, without any contradiction of Brown, his Heirs and Aſſigns; that now here is a new Grant of an Intereſt to dig, to the ſaid Lord and his Heirs in the Lands aforeſaid, and not a bare Covenant; and it was holden alſo, that the ſaid Lord could not divide the Intereſt granted to him in form aforeſaid, viz. To grant to another to dig one part of the ſaid Waſte, &c. But they were of Opinion; That Brown, his Heirs and Aſſigns, notwithſtanding the ſaid Grant to the ſaid Lord, Owners of the Soil there might dig there. It was further moved in this Caſe, That the ſaid Lord had demiſed the ſaid Intereſt to one Laycott, who aſſigned it over to A. and B. and if the ſaid Aſſignment to two were good or not, was a further queſtion; for if to two, ſo he might do to twenty, and ſo a ſurcharge might be to the Tenant of the Soil. And as to that, the ſaid Iuſtices were of Opinion, That the ſaid Aſſignment to two was good: But the two Aſſignees ought not to work ſeverally, but together, with one Stock, and with ſuch Workmen as belonged to them two. And Note, it was holden in this Caſe, That this word (Proviſo) being coupled with other words of Covenant and Grant, did not create a Condition, but ſhould be of the ſame nature as other words of Grant.

CCLIX. Paſc. 25 Eliz. In the Common Pleas.

IT was found upon a Special Verdict in Treſpaſs, that the place where, &c. was Copyhold Land, and that the Cuſtom there is, That every Feme covert there might deviſe her cuſtomary Lands to her Husband, and ſurrender the ſame in the preſence of the Reeve, and ſix other perſons; and it was further found, That A. was ſeized of certain Copy Land, having Iſſue B. and C. his Daughters, and dyed, they both took Husbands, and B. deviſed her part by her Will to her Husband in the preſence of the Reeve and ſix other perſons, and afterwards at another day ſhe ſurrendred to the uſe of her Husband, who was admitted accordingly: the Wife dyed, the Husband continued the poſſeſſion, and the Husband of the other Daughter brought Treſpaſs. Rhodes Serjeant, The Cuſtom is not good, neither for the Surrender, nor for the Will; for it is not certain what Eſtate ſhe might deviſe by the Cuſtom, and alſo it is againſt reaſon that a Feme covert ſurrender to the uſe of her Husband: And he cited the Caſe in Fitz. 13 E. 3. Dum fuit intra Aetatem 3. where Cuſtom is pleaded in the City of Glouceſt. That every perſon might alien his Land when he knew how to tell 12 d. and to meaſure an Ell of Cloath, and that Cuſtom was diſallowed for the incertainty, for he ought to have ſhewed the certainty of the time, ſcil. at what age, and the certain number of years. Vide alſo 19 E. 2. Fitz. Gard. 127. That an Infant ſhould be out of Ward when he could do as aforeſaid. And as to the Surrender, it is againſt reaſon that a Feme covert ſhould give to her Husband, for the Wife hath not any will but the will of her Husband; and the Statute of Wills utterly excepts Feme coverts as an unreaſonable thing to ſuffer them to make Deviſes; and although the Statute doth not extend to Cuſtomary Lands, yet the like reaſon, the like Law. But by Anderſon, the Equity of that Act extends to Copyholds, as alſo doth the Statute of Limitations: And it was ſaid by ſome of the Serjeants that becauſe the Husband was admitted, Treſpaſs did not lye againſt him for his Entry was continued with a lawful Ceremony. In this caſe, it was moved by Anderſon, If a Copyholder maketh a Leaſe for years by word, if the Leſſee might maintain Ejectione firmae, and he conceived not, for that ought to be a Title in facto, and not by concluſion; for neither the Iudge nor the Iury are eſtopped: And he ſaid, that if the Tenant at will makes a Leaſe for years, that it is not a good Leaſe between the parties to it, but that the Leſſee might well ſay that he had nothing, &c. Mead contrary: And Anderſon ſaid, The Book of 12 E. 4. 12. is not Law, ſcil. If Tenant at will makes a Leaſe for years it is not Diſſeiſin, but the ſaid Book is contrary: Alſo Anderſon ſaid, That in the principal Caſe the Preſciption is not well laid, Quod quaelibet foemina cooperta viro poterit, &c. whereas there ſhould be alſo words, ſcil. Et uſae fuerunt, &c. And it was ſaid, That if the Deviſe be good, then the Plaintiff and Defendant are Tenants in Common, and the Action not maintainable.

Paſc. 30 Eliz. In the Kings Bench. CCLX. Jeroms Caſe.

JErome made an Affray, of which complaint being made to the Mayor, the ſaid Mayor ſent the Defendant, being Conſtable, to bring the ſaid Jerome to him, by virtue of which they went to the houſe of the Plaintiff, and ſignified to him the command of the Mayor, and would have brought the Plaintiff to him, and the Plaintiffs Wife aſſaulted them, and they gently lay their hands upon the Wife, which is the ſaid Aſſault, Battery and Wounding, &c. upon which it was demurred. Cooke for the Plaintiff;Cuſtoms. The Cuſtom is not good nor reaſonable, vide Magna Charta 29. Nullus liber homo capiatur, nec impriſonetur, &c. niſi, &c. per legale judicium parium ſuorum vel per legem terrae; Ergo, ſhall not be taken and impriſoned upon a bare ſuggeſtion. Vide 24 E. 3. Br. Commiſſions 3. That where a Commiſſion iſſued to apprehend all who were notoriouſly ſuſpected for Felons and Treſpaſſors, although they were not Indicted, it was holden againſt Law, and therefore was revoked. Vide the Statute of 1 E. 3. cap. 9. 25 E. 3. 4. 28 E. 3. 3.Juſtice of Peace not by Preſcription. 37 E. 3. 18. & 42 E. 3. 33. 2. To be a Iuſtice of Peace doth not lye in Preſcription; for no Iuſtice of Peace was before the Statute of 1 E. 3. and the beginning of them being known, Preſcription cannot be. 3. Admit that the Mayor was a Iuſtice of the Peace, yet he cannot determine any thing out of Seſſions. 4. The Preſcription is, That the Mayor may ſend for him, and doth not ſay within the City; and it ſhall be an unreaſonable Preſcription to ſay that the Mayor may ſend for him; for in ſuch caſe in any place within England may he ſend. 5. It is not ſhewed that they had a Corporation which might preſcribe. 6. The Wounding is not anſwered, for Molliter injicere manus cannot be taken for a Wounding, nor for an anſwer to the Battery. Fleetwood Serjeant and Recorder of London, If the Statute of Magna Charta ſhould be obſerved no Felon is duly handled at Newgate; and here we have not pleaded by way of Preſcription, but of Vſage. Conſuetudo and Vſage are all one: And afterwards Iudgment was given for the Plaintiff; for the Plea in bar was holden to be naught, becauſe the Wounding was not anſwered, and the Cuſtom is too general; and alſo for the fourth Exception.

Mich. 32 Eliz. In the Kings Bench. CCLXI. Goram and Fowks Caſe.

Prohibition.THe Caſe was, The Defendant libelled in the Spiritual Court, that whereas he was Adminiſtrator to one A. and was bound in the Spiritual Court to bring in a true Inventory of all the Goods of the Inteſtate, that the Plaintiff detained Jura & Credita, by reaſon of which he could not put in a true Inventory; and upon that the Plaintiff prayed a Prohibition, ſurmiſing that he himſelf claimed Property in the ſaid Goods; and the Eccleſiaſtical Court would not allow of it; and the Trial of the ſaid Goods did belong to the Common Law: And a Prohibition was granted.

Trin. 33 Eliz. In the Kings Bench. CCLXII. Mountjoyes and Andrews Caſe.

IN Scire Facias upon a Iudgment in Debt; The Defendant pleaded, that heretofore a Fieri Facias at the Suit of the now Plaintiff iſſued directed to the Sheriff of Leice •• er, by force of which the ſaid Sheriff took divers Sheep of the Defendant,Execution. & adhuc doth detain them:Retorn of Writ. It was holden by the Court a good Plea▪ although he doth not ſay that the Writ was returned; for the Execution is lawful notwithſtanding that, and the Plaintiff hath remedy againſt the Sheriff.

CCLXIII. Vide this Caſe reported by Cook 1 Part, by the name of Capells Caſe.

THe Caſe between Hunt and Gately in the Exchequer Chamber, was now argued by Fenne, That the Rent granted by him in the Remainder upon an Eſtate tail is good, and ſhall bind the Land after the Eſtate tail determined, notwithſtanding the common Recovery ſuffered by the Tenant in tail in poſſeſſion. Before the Statute of Weſtm. 2. of Donis Condic, &c. no Remainder could be limited upon an Eſtate tail, for that which remained in the Donor was but a poſſibility, and therefore then a Formedon in Remainder did not lye: But the ſaid Statute which provided a Formedon in the Deſcender, provided alſo by Equity a Formedon in the Remainder; for a Formedon in the Reverter, as appeareth by the ſaid Statute, was in uſe in Cancellaria. And now here in our caſe is a Remainder lawfully veſted in the Grantor, which he may diſpoſe of as he ſees good; and therefore when he grants a Rent-charge out of it, the ſame is a thing veſted in the Grantee, and by no ſubſequent act can be diveſted, and although the Eſtate which was charged be now charged by the Recovery, yet it is the ſame Land which was charged, and therefore the charge ſhall continue; as if a gift in tail be rendring Rent, and the Donee levieth a Fine, yet the Rent remaineth, and the Donor ſhall diſtrain. 48 E. 3. 3, 9. So here, If after the grant of this Rent, Tenant in tail in poſſeſſion levies a Fine, by which the Remainder which was charged is diſcontinued, and afterwards the Conuſor dyes without Iſſue, the Grantee ſhall diſtrain upon ſuch poſſeſſion which paſſed by the Fine. As if A. leaſe to B. for life, and afterwards grants a Rent out of the ſame Land to C. B. aliens in Fee and dyes, although that A. cannot re-enter, but ſuffers the ſaid torcious Eſtate, gained de novo by wrong, to continue; yet B upon ſuch poſſeſſion ſhall diſtrain for the Rent, for it is the ſame Land which was charged; and by Law a thing in abeyance may be charged: As if a Parſon grant a Rent-charge to begin after his death, and the Patron and Ordinary confirm it, it ſhall bind, although the Grant doth not take effect in the life of the Grantor, but when the Freehold is in abeyance: So if the Patron and Ordinary in the time of Vacation grant a Rent-charge out of the Parſonage, the ſame is good, and ſhall bind the Succeſſor, and yet at the time of the Grant the Freehold of the thing granted is in abeyance. Vide 5 E. 6. Dyer 69. That a Rent which is not in eſſe ſhall be bound by a Iudgment. 22 E. 3. 19. 5 E. 3. Fitz. Dower 343. By Bracton, Jus, concerning a real thing, is threefold: 1. Jus terrae, ſcil. the Ownerſhip of the Land. 2. Jus in terra, as a Rent, Common, &c. 3. Jus ad terram, ſcil. Right permanent. And by this Common Recovery in our caſe Jus terrae ſhall be bound, but not Jus in terra: And he ſaid, That if Land be given to A. in tail, the Remainder to the Kings Villain in Fee, and before any claim by the King, A. ſuffers a common Recovery and dyes without Iſſue, this Recovery ſhall not bind the King. And as to the Caſe of 26 H. 8. 2. which hath been Objected againſt the falſifying of the Recovery, where a Parſon made a Leaſe for years, and afterwards in a Quare Impedit brought againſt him and the Patron, they pleaded faintly, to the intent to make the Leſſee loſe his Term, now ſuch a Leſſee cannot falſifie; in ſuch caſe the Parſon by another way might have defeated the Leaſe as by Reſignation; but in our caſe the Grantor of this Rent by no way might defeat his Grant: And he ſaid, a common recovery did not bind Dower, therefore nor this rent. And if Tenant in tail in poſſeſſion grants ſuch a rent, and after ſuffers a common recovery, the rent ſhall ſtand, why not alſo in the caſe of a remainder; for upon them both, as well the remainder, as the poſſeſſion, the recovery operatur: And recoveries ſhall always bind the poſſeſſion, and no farther, and ſhall not diſprove the right, but the poſſeſſion. And the recovery by it ſelf doth not bind the poſſeſſion, but in reſpect of the Voucher, without which no recovery ſhall bar, and that in reſpect of the recompence which the Law preſumes, &c. which recompence cannot extend to this Rent-charge, and then there is no reaſon that he to whom it was granted ſhould be prejudiced by this recovery; and always in caſe of recompence the Law is very preciſe. As if I grant unto you an Annuity of 30 l. per Annum until you be preſented to a competent Benefice, a litigious Benefice is not a recompence intended, nor ſhall determine the Annuity, nor a Benefice of 15 l. If two make an exchange for their Lives, and one of them dyeth, the exchange is not determined but the Heir of him who dyeth ſhall enter and retain the Land as long as the other ſhall live. Ad quod Manwod Chief Baron ſubſidebat: And there is a great difference between a Leaſe for years and a Rent-charge; for at the Common Law upon ſuch Recovery the Leſſee for years was bound, contrary of a Rent-charge; for it was unreaſonable that a thing not demanded by the recovery ſhould be bound by it, eſpecially becauſe that the Land rendred in value ſhall not be charged with the rent. Walmeſley Serjeant contrary: A remainder upon an Eſtate tail is debile fundamentum, and cannot uphold with aſſurance a Rent-charge againſt a common recovery; and it cannot be found in any Book but in 5 E. 4. 2. That a remainder upon an Eſtate-tail expectant may be charged, for an Eſtate-tail is in Law preſumed to be perpetual, and therefore, what Lands are entailed by Fee, the words of the Fine are, Sibi & haeredibus de Corpore ſuo exeuntibus imperpetuum. And it is the common learning in our Books that every Eſtate of Inheritance, be it Fee-ſimple or Fee-tail, ſhall be intended to be continued till the contrary be ſhewed. And the Authority which the Owner of a Remainder hath upon it is but conditional; ſcil If the Tenant in tail in poſſeſſion doth not countermand it by a recovery, &c. And alſo the poſſeſſion upon which the Avowry is made, is not the ſame poſſeſſion which was charged, but is a Foreign poſſeſſion gained by the recovery, and therefore, before the proper poſſeſſion be recontinued, there can be no Diſtreſs nor Avowry, for the Land is not reduced in the privity of Eſtate which was charged; and if he in Reverſion upon ſuch Eſtate tail would grant his reverſion rendring rent, and afterwards the Tenant in tail in poſſeſſion ſuffers a common recovery, and dyeth without Iſſue; Now the reverſion being deſtroyed, the rent is gone. And he put this Caſe: Tenant in tail grants a Rent-charge to begin after his death without Iſſue, and afterwards ſuffers a common recovery, and dyes without Iſſue, it is a good rent, and ſhall bind the Recoveror &c. At another day in the Exchequer Chamber, the Caſe was argued again by Snagg Serjeant for the Defendant; and he was very long in proving that a remainder might be charged, as in this caſe: But the Court diſcharged him of that, and directed him to argue to this Point, If this recovery did diſcharge the rent, &c. wherefore he argued, That theſe common recoveries are falſe and feigned things, falſe in the Title, and covenous in the Proceedings, and all in prejudice of a third perſon. And Vide 14 H. 8.3. ſuch common recoveries are holden fraudulent, and therefore by fraud and covin being ſo odious in our Law, we ought not to give and allow unto them ſo much force as is due to unfeigned recoveries; for theſe common recoveries do not go in diſaffirmance of the former poſſeſſion, nor in any eviction of it, but for the moſt part in affirmance; and the Eſtate gained by this recovery is under the Eſtate of him againſt whom the recovery was had, and he is in by him; for common Recoveries are no other but common Aſſurances: And in our Caſe the imagined Recompence cannot come to him who hath by the recovery loſt his rent, and therefore it is not reaſon that the recovery ſhould bind as to this rent. Vide 12 E. 4. 19, 20. Tenant in tail diſcontinueth, and takes back an Eſtate to him in Fee, and afterwards a common recovery is had againſt him, it ſhall not bind the tail, for the preſumed recompence ſhall go to the Eſtate which he hath loſt, ſcil. the Eſtate in Fee, and not to the Eſtate tail, whereof at the time of the recovery he was ſeized: So in our Caſe, the Land which by Fiction of Law is to be yielded in value upon this Voucher, ſhall not extend to the benefit or recompence of the Grantee of the Rent-charge, but only to H. who hath loſt his remainder, and his new remainder, which comes in lieu of the former, ſhall not be charged with this rent: And therefore the remainder, which by this recovery is drawn out of H. tranſit cum ſuo onere, & cum acciderit ſhall anſwer, and ſhall yield the rent according to the purport of the Grant. As 33 H. 6. 4 & 5. two Ioyntenants are, The one grants a Rent-charge, and afterwards releaſes to his Companion, he ſhall hold the Land charged, notwithſtanding that he be now fully in by the Feoffor. And if there be Lord and Tenant, and the Tenant grants a Rent-charge in Fee, and dyeth without Heir, ſo as the Land goes to the Lord in point of Eſcheat, yet the Lord ſhall hold the Land charged. And as to the Statute of Fraudulent Conveyances, 27 Eliz. cap. 4. the ſame cannot extend to this Grant; for here, this Grant is upon conſideration of Nature made to his own Son for his advancement. Popham Attorney General to the contrary: And that neither the Grantee of this Rent, nor he who makes Conuſans in his right ſhall falſifie this recovery. And he put a difference where the party who leaſeth or chargeth a remainder, is bound by the recovery voluntarily, and where involuntarily; for where the recovery is ſuffered voluntarily, there the Grantee or Leſſee ſhall not be bound by that recovery, but they ſhall falſifie: But where as our Caſe is, there the Party who chargeth or leaſeth is bound involuntarily by ſuch recovery, there all Intereſts are bound, and the charge is ſubject to the ſame miſchief as the remainder it ſelf, out of which it is iſſuing, Vide 7 H. 7. 12. He in the remainder in Fee ſhall not ſatisfie a recovery had againſt the Tenant for life, but he is put to his Writ of Entry, ad terminum qui praeteriit, in which he ſhall falſifie, and not by Entry, much leſs he in the remainder upon an Eſtate tail ſhall not falſifie; and falſifier lyes properly where the Party who grants or leaſeth againſt his Grant or Leaſe, practiſeth by ſuch recovery to avoid or defeat his own Eſtate, and by conſequence the Intereſt of his Grantee or Leſſee: But in our Caſe there is not any ſuch matter; for the Grantor H. was not party or privy to this recovery, nor Tenant, nor Vouchee, and therefore no Covin, and then no Voucher; and all the Caſes in our Law of falſifying of recoveries are upon ſuch matter. And he put the Caſe of 19 E. 2. Fitz. Title Aſſiſe 82. where the Conuſee of a Statute Merchant, having ſued Execution, one who had no right impleaded the Conuſor, and by Covin recovered againſt him, and by Execution upon that recovery ouſted the Conuſee, it was holden he ſhould have an Aſſiſe and falſifie; for here he who party to the recovery: Donee in tail, the remainder over in Fee upon condition ſuffers a common recovery, the Condition is gone. And as to the Statute of 21 H. 8. cap. 15. Falſifying is not given in our Caſe by the ſaid Statute, the words of which are, Where divers Men have leaſed their Land to Farm, and afterwards, after ſuch Leaſes made, the Leſſors, their Heirs and Aſſigns have ſuffered Recoveries: Within which words our Caſe is not; for he againſt whom the recovery was had was not our Grantor, his Heir or Aſſign: So if there be Tenant in tail, the remainder over to another in Fee, he in the remainder makes a Leaſe for years, and afterwards Tenant in tail in poſſeſſion ſuffers a common recovery, the Leſſee ſhall not falſifie; for that Leaſe was not made by him againſt whom the recovery was had. And it is clear, that by the Common Law, the Grantee of a Rent-charge cannot falſifie againſt the Grantor, his Heirs or Aſſigns: But it was a doubt as it appeareth. 7 H. 7.11. If upon a faint pleader, the Leſſee for years might be received, for the Statute of Glouceſter extends but to default or re-diſſeiſin; but now by the Statute of 21 H. 8. cap. 11. in three Caſes, Default, Reddition, and Faint pleading, ſuch Reſceipt lyes, which proves that in caſe of rent, as the Statute of 11 H. 8. hath ordained in caſe of a Leaſe for years, where the Leſſor, his Heirs or Aſſigns, have ſuffered the recovery and not otherwiſe. And afterwards he argued very much upon the reputation and dignity of common Recoveries, that they are the ſtrongeſt and moſt effectual Aſſurances in the Law, and therefore they ought to be countenanced rather by the Iudges, than in any part diminiſhed or diſabled, and we ought to conſider of them Non ex rigore juris, rigida diſquiſitione, but according to the common uſe and practice, what is the ground and foundation of theſe Recoveries: And ſo Iudges have uſed heretofore to examine Matters, which peradventure, according to the ſtrict Rules of the Common Law, drew them away. But they perceiving that a dangerous Conſequence thereby would follow to an infinite number of the Kings Subjects the Law having been otherwiſe practiſed before have framed their Iudgments, not according to the exact Rules of Law, but to avoid the Inconvenience aforeſaid according to the common and received practice, &c. Nam communis Error facit jus; and to that purpoſe he cited a Caſe very lately adjudged in B.R. viz. A Writ of Error was brought in B. R. upon a Iudgment given in Wales, and the Error was in this, That the Writ was returnable co • am Juſticiariis Domini Regis Comitatus, &c. where it ſhould have been coram Juſticiariis Magnae Seſſionis Dominae Reginae, &c and ſuch are the words of the Statute of 34 H. 8. cap 26. the which Seſſions ſhall be called the Kings great Seſſions in Wales; and notwithſtanding that the Iuſtices in ſtrict conſideration of the Law thought the ſame to be Error (for the ſaid Statute had given to the ſaid Court ſuch name; yet becauſe it was well known to the Iuſtices, That that was the common courſe in the ſaid Court ever after the erection thereof; And alſo, if the ſaid Iudgment ſhould be reverſed, for that cauſe many Iudgments ſhould be alſo reverſed, which ſhould be a great diſquietneſs and vexation to the whole Country there, they in their diſcretion thought it convenient to qualifie the Law in that point, and ſo to avoid the ſaid Inconvenience, affirmed the ſaid Iudgment: So in the caſe at Bar, If this Rent-charge ſhould ſtand againſt the ſaid recovery, no inconvenience ſhould be ſo firm, but it ſhould be impeached, no Title ſo clear, but ſhould be incumbred, & therefore for the common repulſe of many the ſtrict rules of the Law ought to yield to common practice for the avoiding of a common inconvenience; it hath been holden for Law when Tenant in tail maketh a feoffment in fee, the Feoffee is impleaded, & voucheth the Tenant in tail, now foraſmuch as he cometh in as Vouchee, it is now ſaid that he cometh in of all his eſtates, I do not ſee any reaſon for that, but common allowance, practice, and experience, &c. It was adjourned, &c.

Mich. 27 Eliz. In the Kings Bench. CCLXIV. Baxter and Bartlets Caſe.

IN Aſſiſe of Freſhforce by Baxter againſt Bartlet upon Null tort, Null Diſſeiſin pleaded, it was found for the Plaintiff who had Iudgment; upon which the Tenant brought Error, for that the Aſſize have generally found the Diſſeiſin, but have not enquired of the force: And after many motions the Iudgment was affirmed.

CCLXV. Sir Henry Gilfords Caſe.

IT was found upon a Special Verdict, That Henry Gilford Citizen and Freeman of London, 7 Feb. 6 E. 2. ſeized of a Capital Meſſuage, Deviſed the ſame by theſe words: Lego, & volo, Quod omnes Domus & reddit' quae habeo in Villa de London, ordinentur & aſſignentur per Executores meos ad ſuſtentationem trium Capellanorum qui pro vita celebrabunt in Eccleſia Sancti Pauli, London: Et ad hoc faciend' Do eis plenam poteſtatem; and made his Executors William Staunton and others, and dyed, the Will was Proved and Inrolled according to the Cuſtom. Afterwards the Executors by their Deed bearing date 7 E. 2 granted and aſſigned the ſaid Capital Meſſuage, and his other Tenements in London to the Dean and Chapter of Pauls in London, and their Succeſſors, Habend' & tenend' in forma ſequenti. Haec eſt finalis Concordia, &c. That the Dean and Chapter ſhall have the ſaid Lands for ever, to find yearly a competent Suſtenance of 10 Marks to a Prieſt to celebrate Maſs for the ſaid Henry Gilford, and all Souls, and that the ſaid Prieſt at all hours of Divine obſequies ſhould give his attendance in the ſaid Church and faithfully do his Office to ſay Maſs and Prayers according to the Degrees and Cuſtoms of the ſaid Church, and that the Dean and Chapter ſhould find Bread and Wine, and Maſſing-cloaths, and Torch-light, and granted the reſidue of the profits of the Lands to celebrate an yearly Obit, and for the perpetual ſecurity of the ſaid Chauntry, the ſaid Executors granted to the Mayor and Commonalty of London 20 s yearly rent for ever: Ita quod, the Mayor and Chamberlain for the time being preſented a meet and convenient Chaplain to the ſaid Chauntry, to the ſaid Dean and Chapter, within 15 days after the Avoidance, the which Chaplain the Dean and Chap • er are bound to admit. And the form of the ſaid Conveyance was ſuch; We the Executors H. G. do grant and aſſign to the Dean and Chapter of Pauls all the Lands, Tenements, and Rents aforeſaid, to have and to hold to them and their Succeſſors for the ſuſtentation of a Chaplain perpetual, and his Clark for the ſaid H. G. and all Souls, receiving from the ſaid Dean and Chapter 10 Marks for the celebrating of the ſaid Obit of the ſaid H. G. And that the Grant and Aſſignment of the ſaid 20 s. to the Commonalty in the relief of the ſaid Chauntry, is ſuch, ſcil. To have and receive of one Shop in Cheap maintenance of the ſaid Chauntry aforeſaid: And that the ſaid Dean and Chapter oblige themſelves and their Succeſſors, and the Church, to pay the ſame to the ſaid Prieſt and Clark and that it ſhall be lawful for the Mayor and Commonalty aforeſaid to diſtrain for the ſaid Rents: By virtue of which Will and Indenture the Dean and Chapter enter, and were thereof ſeized in their demeſne, &c. and that at all times after they had taken the profits thereof until 2 E. 6. and that the Dean and Chapter of the profits of the premiſes had yearly paid 10 Marks for the ſtipend of the ſaid Prieſt. And further, the 27 July 16 H. 8. the Dean and Chapter demiſed the ſame to F. Cole for 40 years; and that afterwards 15 Maij 36 H. 8. the ſaid Dean and Chapter leaſed the ſame to Nicholas Wilford for 50 years rendring 9 l. Rent with Clauſe of Diſtreſs if the Rent was behind by half a year, being demanded the Leaſe ſhould be void, which N. W. 1 E. 6. deviſed the ſame to his Wife who deviſed the ſame to Tho. Wilford the Defendant: And further found, That as it appeared by an Exemplification out of the Exchequer, That it was a Chauntry of H. G. and that Tho. was then a Chauntry Prieſt there, and that the ſaid Chauntry, with all the Profits and Obits were 6 l. 13 s. 4 d. the tenth of which is a Mark, which was payable to the King 26 H. 8 And that by another Exemplification in 2 E. 6. it appeared that the Dean and Chapter of Pauls certified to the Commiſſioners of the ſaid King, Cantaria H. G. A. & B. Executores Teſtamenti H. Gilford by force of the ſaid Will 7 E 2. granted and aſſigned to the Dean and Chapter aforeſaid, and their Succeſſors, the ſaid Lands and Tenements, to the intent that they ſhould maintain for ever a Chaplain to pray for the Soul of the ſaid H. G. and all Souls: And the Incumbent of the ſaid Chauntry is one G. and that the ſaid Executors granted to the Mayor and Commonalty of London the Rent of 20 s. out of a Shop in Cheap, with the Patronage of the ſaid Chauntry, to the intent that they ſhould maintain the Chauntry accordingly; and recited all the ſaid Lands and Rents aſſigned, and that the Rent of them was 14 l. 1 s. (the Salary of the Prieſt, 6 l. 13 s. 4 d. for Bread and Wine 3 s. 4 d. the Chamberlain of London 20 s. being deducted) and ſo there remaineth 4 l. 3 s 4 d. And that the ſaid Chaplain received above his Wages yearly by reaſon of the ſaid Obit, other Profits, as Proceſſion pence, and Feeding days 33 s. 4 d. And found further, the Act of 1 E. 6. and further ſaid, That the Church of St. Paul at the time of the ſaid act was a Cathedral Church, and the Fee of the Biſhop of London, and that the profits and rents deviſed and ordained to the ſaid Dean and Chapter were in the ſaid Certificate of 2 E. 6. and that the ſaid Lands, at the time of the making of the ſaid Act, and for five years before, were not in the actual poſſeſſion of the ſaid King H. 8 nor E. 6. and that by force of the Statute of 1 E. 6. the ſaid Lands came to the poſſeſſion of the ſaid King as Chauntry Land, and that the ſaid King granted it to Tho. Butcher in Fee, who bargained and ſold the ſame to Dobſon, who thereof enfeoffed Thoragill, upon whom the ſaid Nicholas Wilford entred, claiming his Leaſe: And further found, That 45 s. parcel of the ſaid rent of 9 l. due at the Feaſt of St. John Baptiſt 11 Eliz. for the ſaid Capital Meſſuage was arrear by half a year after the ſaid Feaſt, and was lawfully demanded by the ſaid Rich. Thoragill, and for not payment he re-entred, and let the ſame to Tho. Buttell, &c. Bell. The Executors by this Deviſe have not a bare authority, but an intereſt; for if one ſeized of Lands in Fee deviſeth. That his Executors grant a Rent-charge to one in Fee out of his ſaid Lands, by that Deviſe the Executors have a Fee-ſimple in the Land, otherwiſe they could not make ſuch a Grant: So here in the Caſe in queſtion: and alſo by the ſame reaſon the Executors have a Fee-ſimple in the Land, for otherwiſe they could not grant a Rent in Fee, nor the Land to the Dean and Chapter in Fee, by which the Chaplain in perpetuity ought to be found: And although but one Chauntry was erected where three were intended, but the Land deviſed was not ſufficient for all three, ſo that now by the erecting of one Chauntry only, the Executors performed the truſt as near to the intent of the Deviſor as it could be, and as the Land deviſed might extend unto; it is not material, if here be a Condition, or a Confidence in the words of the Grant to the Dean and Chapter ad inveniendum, &c. for if it be a Condition, and broken, no advantage ſhall be taken of it, for it is out of the Statute; and if it be a Confidence, then it is performed as near the intent of the Deviſor as it might be, and the Condition being performed, although not exactly, yet ſo near as it may be, it is well enough performed: As a Feoffment upon Condition, that the Feoffee ſhall make a Gift in tail to Husband and Wife, and the Heirs of the Body of the Husband, the Husband dyeth, now the Gift cannot be modo & forma, and therefore if it be, it may be, ſcil. as near the intent of the parties as it may be, it is good; and therefore if the Land be given to the wife for life without impeachment of waſte, the remainder over, it is ſufficient in caſe of a Truſt and Confidence. 1. It was moved, If here be any Chauntry in the Caſe: And a Chauntry is nothing elſe but a Suſtentation for a Prieſt that chaunts in a place certain for the Souls of the dead: And Chauntries are in two ſorts; the one incorporated, as by the King by his Letters Patents; the other not incorporated, as our caſe is: And truly the greateſt number of Chauntries were not corporal, but were Chauntries but in reputation, and not Revera; but yet ſuch Chauntries in reputation are within the Statute, which ſee by the words of it, accepted, taken or reputed, as Part or Member of any Chauntry. It hath been Objected, That nothing paſſeth to the King by that Statute, but that which is parcel or belonging to the Chauntry but this Land is not parcel nor belonging to any Chauntry, for all the Land is in the Dean and Chapter. As to that, we ought to have regard unto the intent of the Deviſor, which was to make the Land a Chauntry: And ſo in the time of Hen. 8. it was retorned in the Exchequer for the Firſt-fruits of the Chauntry of Hen. Gilford, and we ought not to reſpect the Conveyance it ſelf, which was made by the Executors to the Dean and Chapter, but alſo the diſpoſition of the Deviſor, ſo as both ought to be put together, if they be not contrary one to the other; and if they be, then the laſt ſhall be taken. And when the intent of the Deviſor may ſtand with the act of the Executors, to conſtrue, That the Land ſhall make the Chauntry according to the intent of the Deviſor; for the Executors have given all the Land to the Dean and Chapter to find a Prieſt, and things belonging to a Chauntry; and the Executors have given the ſaid Land to the ſaid intent, and the aſſignment of the ſpecial portion out of it, is but a ſhewing how the profits of the Lands ſhall be beſtowed: For I conceive, That the Land at the time of the diſpoſition aforeſaid, was not of any better value, than it was appointed to be imployed as aforeſaid; and if the Dean and Chapter by their induſtry have made and improved it to a greater value, they ſhall take advantage thereof till it be given to the King by the Statute, and it ſhall not be ſaid properly a Rent, but rather a portion of the profits, &c. and therefore the Land ſhall be ſaid the Chauntry, and not the Sum; and here the intent of the Statute extends to the intent of the Founder: So that if the intent of the Founder was to give the Land to Superſtitious Vſes, the ſame is within the Statute: If Ceſtuy que uſe wills that his Feoffees have the profits of his Lands ut ſupra, to the Suſtentation of a Chauntry Prieſt, and the Feoffees imploy but 20 l. per Annum, whereas the Land is of the value of 100 l. per Annum, by this Statute the King ſhall have all; for the intent of the Founder was, That all ſhould be imployed: And ſo here; for upon the Matter, the Dean and Chapter are but as Feoffees; and ſee that this Statute of Chauntries makes a great difference between Obits and Lights, and Chauntries; for in the Caſe of Obits and Lights, the King ſhall not have but that which was imployed. Whetſtones Caſe was, That Whetſtone ſeized of the Manor of Cocke, made a Feoffment thereof to certain Feoffees to find two Obits in ſuch a Chappel, and with the reſidue of the profits to maintain the Chappel; and Iudgment was given for the Queen. Here the Condition knit to the Reverſion upon a Leaſe made by the Dean and Chapter to Nicholas Wilford paſſeth to the King by the Act of Parliament: for a Condition is an Hereditament, and when the King grants over the reverſion to Butcher, the Condition alſo paſſeth by 32 H. 8. Bromley Solicitor, The Statute extends to Chauntries in exiſtence only, and not to Chauntries in reputation. Chauntry hath divers ſignifications in Law; 1. For the Service which the Chauntry Prieſt is to do, as ceſſavit de Cantaria. 2 Sometimes for the Advowſon of the Chauntry, ſcil. Quod permittat praeſentare ad Cantariam. 3. Sometimes for the Body of the Chauntry, ſcil. the Land of which it is endowed, and in that ſenſe it is taken by the Statute. I will agree, if the ſame had been an ancient Chauntry time out of mind &c. and the Incumbents thereof had taken the profits, and made Leaſes of it, that then it ſhould be a Chaunt • y within this Statute, for it might be corporated by preſcription: But the Chauntry here in queſtion is not a Chauntry by preſcription, for the beginning of it is known, ſo it is a Chauntry in reputation only and not in facto. And he ſaid, That in that caſe the rent limited to the ſuſtentation of the Prieſt ſhall go to the King and not to the Land for the Land was not given for the ſuſtentation of a Prieſt, but the rent only; ſo as the Land was not immediately imployed for the finding of the Prieſt: And he reſembled this caſe to the caſe lately in queſtion upon the Statute of 31 H. 8. An Abbot was ſeized of a great Wood, which was never imployed in kind to the uſe of the Houſe, being ſeven Miles diſtant from the Houſe, but was never in Leaſe, but was yearly ſold by parcels, and the Woodward rendred an Account of the ſame to the Auditor: And the Opinion was, That a Leaſe for years made of it within a year before the Diſſolution, was not within the ſaid Statute, for it was not immediately imployed for Hoſpitality. But ſee the ſame reported by the Lord Dyer to the contrary, 3 & 4 Eliz. 207. that ſuch a Demiſe was void although that the Wood was not immediately imployed, &c. And ſee alſo the words of the Statute. ſcil. That the Land ſhall be in the actual Poſſeſſion of the King in as ample manner as the Prieſt had it, and the Prieſt had nothing in the Land but only in the Rent: It was adjorned to be further argued, &c.

Temps Roign Eliz. CCLXVI. Harveys Caſe.

HArvey ſeized of a Manor, made a Feoffment thereof to divers perſons to the uſe of himſelf for life, and after to the uſe of his Son and the Heirs Males of his Body, and if the ſaid Son, or any of the Heirs males of his Body diſcontinue or alien (otherwiſe than for 21 years, or three lives) that then his Feoffees ſhould be ſeized to the uſe of Nic. Harvey his Brother in Fee: the Feoffor dyed, the Son made a Leaſe for 21 years and afterwards diſcontinued againſt the Proviſo, if that leaſe ſhould bind Nic. Harvey who came in by the latter uſe, &c. Dyer, It is hard to avoid the leaſe, for at the time of the making of it, the leſſor had a good intereſt and authority to make the leaſe, and the act which impeacheth the Eſtate of the leſſor commenceth after the leaſe by the diſcontinuance, and therefore ſhall not avoid the leaſe. Manwood, The ſecond uſe doth determine the firſt uſe, and all Eſtates derived out of it. Mounſon contr', For here this word (Otherwiſe than for 21 years, &c) ſo as ſuch a leaſe is excepted: As if a man man makes a Feoffment in Fee to the uſe of J. S. and his Heirs, until J. D. ſhall pay to him 20 l. and then to the uſe of J. D. and his Heirs, here if J. S. makes a a leaſe for years, and afterwards the Monies are paid to J. D. now J. D. ſhall hold the Land diſcharged of the leaſe, for there is no word (Otherwiſe) &c. for theſe words (Otherwiſe) qualifie the ſecond uſe. Dyer, The word (Otherwiſe) amounts to an Exception. Manwood doubted of it, and moved and demanded if the wife of the Ceſtuy que uſe ſhould have Dower or not. Barham conceived that ſhe ſhould, &c.

CCLXVII. Mich. 31 Eliz. In the Common Pleas.

TEnant in Socage made a leaſe for four years, and dyed, his Heir within age of 8 years, the Mother being Guardian in Socage, leaſed by Indenture to the ſame leſſee for 14 years; It was holden, that in this Caſe the firſt leaſe is ſurrendred, but otherwiſe it is of a leaſe made by Guardian in Nurture.

CCLXVIII. Mich. 29 Eliz. In the Common Pleas.

IN Debt it was found for the Plaintiff 20 Eliz. and 21 Eliz. the Plaintiff releaſed to the Defendant, and the continuance was made until this Term, ſcil. Mich 29 Eliz. per Curiam adviſare vult: And now the Plaintiff againſt his own Releaſe prayed, and had Iudgment,A Releaſe pleaded after Judgment and Verdict. without any knowledge to the Defendant, and Proceſs of Execution iſſued; and now Walter, a Clerk of the Court, on the behalf of the Defendant ſhewed the Releaſe to the Court and alſo the whole ſpecial matter, and prayed the Releaſe of the Court againſt this practice. Anderſon preſently granted a Superſedeas: But afterwards, before the Proceſs iſſued forth, he and the other Iuſtices were of Opinion, That the Defendant could not plead the ſaid Releaſe, nor any further matter after Verdict, and demanded the queſtion of Nelſon chief Prothonatory who advertiſed the Court, That he could ſhew a Preſident where an Arbitrement had been pleaded after a Verdict, and Iſſue joyned upon it, and that was 100 years ſince: Quod mirum videbatur Curiae hic: Audita Querela pleaded. And afterwards the Court ſaid to Walter, Sue your Audita Querela, and upon that you ſhall have a Superſedeas.

Mich. 29 Eliz. In the Common Pleas. CCLXIX. Sir Richard Lewknors Caſe.

Poſt 225.SIr Richard Lewknor ſeized of Willingford Park, leaſed the ſame for years, and dyed the Leſſee aſſigned over his term, excepting the Woods and Vnderwoods ſtanding growing, and being in and upon the premiſes, the Aſſignee committed Waſte, the term expired, the daughters and heir of Sir Rich. and the husband of the third daughter Coparceners, being dead, as tenant by the Curteſie, brought an Action of Waſte againſt the Aſſignee, and the opinion of the Court was, that the huſband ought not to joyn in that Action, for he can recover nothing, for damages he cannot have, for the waſte was not done to his diſinhereſin, and the Land he cannot have, becauſe the term is expired. Snag Serjeant, I conceive that the exception in the Aſſignment is good; for an Exception of Trees by the Leſſor himſelf in his Leaſe is good, and by reaſon thereof the Leſſee ſhall not have Fire-bote, Hey-bote, &c. which otherwiſe he ſhould have, and the property of the Trees is in the Leſſor, and alſo the Soil, 14 H 8. 1 & 2. 28 H. 8. Dyer 19 & vide 46 E. 3. 22 a Leaſe for years was made with ſuch Exception, and the Leſſor brought an Action for the Trees cut. Q • are clauſum tregit, and that proves that the Soil alſo is excepted and then the Action of Waſte lyes againſt the Leſſee, who hath excepted to himſelf the Wood and the Soil, and not againſt his Aſſignee. Walmſley Serjeant to the contrary. And he ſaid, where Land is demiſed the abſolute property of the great Trees is in the Leſſor, and the Leſſee hath in ſuch caſe, a qualified property: And he cited 2 H. 7. 14. the Leſſor commands the Leſſee to dig gravel in the Land demiſed, or licenſeth him ſo to do, ſuch commandment or licence is not good for the leſſor hath nothing to do with the Gravel, nor hath any property in it, but ſuch licence to cut Trees had been good; and Vide 10 H. 7.2 & 3. Waſte is aſſigned in the breaking de uno muro lapideo; the Defendant pleaded the licence of the Plaintiff to break it, and upon that they were at Iſſue: And he ſaid, If the leſſor cutteth trees, upon which the leſſee brings an Action of Treſpaſs he ſhall not recover damages according to the value of the trees cut down; but for the Treſpaſs to the Soil, and for the loſs of the Shadow, and the Acorns, &c. and if the leſſee cutteth down trees, the leſſor cannot take them, becauſe he hath other remedy. Where a reverſion is granted to A. and B. and to the Heirs of B. Waſte is done. A. and B bring an Action of Waſte, B. ſhall recover all the damages, and A. nothing; which proves that all the Intereſt in the Land demiſed is in B and not in A. therefore here in the principal Caſe the Exception is void, for that which the Law allows to the former, is only Houſe-bote, Hedge-bote, Plough-bote, Fire-bote: And he ſaid that the leſſee fells the trees and the vendee cuts them down, that waſte lyeth againſt the leſſee, which proves that in that caſe the Soil doth not paſs with the trees, by the exception of the trees, the Soil is alſo excepted as a ſervant to the trees, viz. to nouriſh the trees; and if he who excepts the trees cuts them down, or roots them up, the leſſee ſhall have the Soil. And he ſaid, that for the property that the leſſor hath in the trees, if he cuts them down, the rent ſhall not be apportioned: And if the leſſor granteth the trees to one, and his heirs, there ſhall be no Attornment, which had been requiſite if the Soil had paſſed. At another day it was argued by Shuttleworth Serjeant, and exception taken, becauſe it is too general, ſcil. Quod fecit vaſtum in terris quas Sir R. Lewknor pater duarum querentium cujus Haeredes ipſae ſunt praefato, Ford dimiſit, &c. And the Plaintiffs counted the Reverſion was entailed by Act of Parliament to the ſaid Sir R. Lewknor; and ſo the Writ ought to be ſpecial, ſcil. Cujus Haeredes de corpore ipſae ſunt; for although there be not any ſuch form in the Regiſter, yet that is to no purpoſe; for in novo caſu novum eſt remedium apponendum. And he compared it to the Caſe in F. N. B. 57. where Land is given to husband and wife, and the heirs of the body of the wife, the wife dyeth, the husband commits waſte, the Writ ſhall be, Idem A. de domibus in B. quas tenet ad vitam ſuam ex dimiſſione quam inde fecit praefato A. & M. quondam uxori ejus, & haeredibus de corpore ipſius M. matris dicti R. cujus haeres ipſe eſt exeuntibus. And Vide 26 H. 8. 6. Ceſtuy que uſe leaſeth for years, the leſſee commits waſte, the Feoffees bring an Action of waſte, the Writ containeth the ſpecial matter, although there was not any ſuch Writ in the Regiſter. Fenner and Walmſley contrary; for there is not any ſuch form in the Regiſter, Cujus haeredes de corpore, &c. and we are not to deviſe a new form in this caſe, but it is ſufficient to ſhew the ſpecial matter in the Count; alſo the words in the Writ are true, for the Plaintiffs are Heirs to Sir R. Lewknor. and the Count is well, purſuant and agreeing to the Writ; for they are Heirs, although they are but Heirs ſpecial of his Body. And the Court awarded the Writ good, and ſaid that the caſe is not like the caſe in Fitz. N. B. 57. nor to 26 H 8. before cited; for in the firſt caſe the Plaintiffs cannot ſhew of whoſe Demiſe the Tenant holdeth, unleſs that he alſo ſhew the ſpecial Conveyance, ſcil. That the Land was given to the Husband and Wife, and to the Heirs of the Body of the Wife, for always the Demiſe to the Tenant ought to be ſhewed certain which cannot be in both theſe caſes if not by diſcloſing alſo the Title to the Inheritance, and the Eſtate in it. Another Exception was taken to the Count, That where the two Defendants were Tenants in Common of the ſaid Lands demiſed, the Writ is tenuerunt, which is intended a Ioynt-tenure. But this Exception was not allowed: And Vide 44 E. 3. in Waſte the Plaintiff counted upon divers Leaſes, and Fitz. N. B. 60. F. and the Writ ſhall ſuppoſe one Tenet, and not divers Tenets. Another Exception was taken to the Writ becauſe the two Coparceners, and the Heir of the third joyned in the Writ, whereas the Husband of the third Siſter being Tenant by the Curteſie, was alive. Vide 22 H. 6 21, 22. But that Exception for the Tenant by the Curteſie joyns to no purpoſe; for he is not to have Damages, becauſe the Waſte was not to his diſinhereſin, and the Land he ſhall not recover againſt the Defendant for the Term is not determined; and ſuch was the Opinion of the Court. As to the matter in • aw, Shuttleworth ſaid, That the Action of Waſte ought to be brought againſt the Leſſee himſelf, and not againſt the Aſſignee for when he grants over his Term, excepting the Trees, it is a good Exception; for when the Land upon which the Trees grow is leaſed to another, the Trees paſs by the Leaſe as well as the Land, and the property of them is in the Leſſee during the Term; by which when he grants his Land, he may well except them, as the firſt Leſſor might have done; and if the Leſſee for years cutteth down the Trees, the Leſſor cannot take them for that he hath other ſufficient remedy, ſcil an Action of Waſte. Fenner and Walmſley contrary: And they conceived that the Leſſee had but a ſpecial Property in the Trees, ſcil. for Fire-bote, Plough bote, Houſe-bote, &c. But if he demiſeth the Land, or granteth his Intereſt in it, he cannot except the Trees, nor his ſpecial Property in them no more than he who hath Common appendant may grant the Land, excepting the Common: And in ſuch caſe, the general Property in the Trees remains in the Leſſor, as parcel of his Inheritance. And this appeareth by many caſes: 27 H. 8. 13. Leſſee for life and he in the remainder joyn in a leaſe for life, the Leſſee commits Waſte, the Tenant for life, and he in the remainder, joyn in an Action of Waſte, the Tenant for life ſhall recover the place waſted, and he in the reverſion all the damages. Vide 2 H. 7. & 10 H. 7. cited before, That the Leſſor may licence the Leſſee to cut the Trees, which proves that the Property is in him. And Vide 40 Aſſ. 22. the Leſſor ſhall have the Windfalls. And as to that which hath been ſaid, That by the Exception of the Trees, the Soil it ſelf is alſo excepted that is true, as to the Trees for nouriſhment, and not otherwiſe; for if the Leſſor cutteth down the Trees, or roots them up he ſhall not after meddle with the Land where &c. but the Soil ſhall be entirely to the Leſſee: The Leſſor during the Term may grant the Trees, ſo cannot the Leſſee; therefore the greater and better Property in the Trees is in the Leſſor and not in the Leſſee, and the Trees proprie loquendo, are not parcel of the thing demiſed. If this Exception of the Trees or Woods ſhould hold place, Inconvenience would follow; for as it is holden in 15 H. 7. 11. If the Termor of Wood commits Waſte in one corner of the Wood, he ſhould not loſe all the Wood, but that place only: But if in the ſaid Wood there are divers Plats of Land in divers places of the Wood, if the Termor commits Waſte in that Wood he ſhall loſe all the ſaid Plats, although he hath not done waſte in them, for they are parcel of the Wood. Vide Temps E. 1. Fitz. Waſte 127. and Vide ibidem Waſte 112. 8 E. 2. Waſte done in parcel of an Houſe, the whole Houſe ſhall be recovered. Vide alſo 30 E. 3. Fitz. Amendment 67. and 4 E. 3. Waſte 10. Now if that be Law, and the Exception be good, how ſhall the place waſted be recovered here, and againſt whom? It ſeemed to the Lord Anderſon, That the Exception was void, and that the Action was brought againſt the Aſſignee; and he ſaid it was a knaviſh and fooliſh Demiſe, and if it ſhould be effectual in Law, ſome Miſchiefs would follow which he would not remember. Windham was of the ſame Opinion, and that the Leſſee could not aſſign his Eſtate with ſuch Exception; for he hath but a ſpecial Intereſt in the Trees, ſcil. for Fire-bote, Plough-bote, &c. which ſhould go with the Land. Periam conceived, That as to ſuch ſpecial Property, that none could have it but he who hath the Land, and therefore the Exception is void; but as to the Fruit-trees, ſuch an Exception might be good; and although that the Trees are not expreſly demiſed, yet quodam modo, and after a ſort, they may be ſaid demiſed, as annexed to the Land, and if waſte be brought againſt him who made the Exception, ſcil. the Leſſee, he cannot ſay they were not let to him; and therefore he doubted of the Exception: And Rhodes doubted alſo of the Exception; and Anderſon ſaid, that he was clear of opinion that the Leſſor ſhould have the Windfalls, and afterwards the Caſe was adjorned to be further argued, &c.

Temps Roign Eliz. CCLXX. Audleys Caſe.

Uſes.THe Lord Audley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Somerſet, and afterwards by Indenture reciting the ſaid Feoffment and the date of it, and alſo that it was to the intent that his Feoffees ſhould perform his Will, as followeth in effect, viz My Will is that my ſaid Feoffees ſhall ſtand ſeized to the uſe that the ſaid Hoddy ſhall receive of the ſaid Lands • 00 l which he had lent to the ſaid Lord Audley, and alſo to ſtand ſeized to pay all his Debts upon Bills ſigned with his hand; and after • he Debts paid, that the Feoffees ſhall make an Eſtate of the ſaid Lands to him the ſaid Lord Audley and Joan his wife, and to the heirs of their Bodies, &c. with divers Remainders over. The ſaid Lord Audley had Iſſue by the ſaid Joan▪ and alſo having Iſſue by a former wife a daughter the Feoffees never made any Eſtate to the ſaid Lord and his wife; and by the opinion of divers Iuſtices and Sages of the Law upon this matter no uſe was changed for it is not a laſt Will, but an Intent; and although that the Feoffees ſhall be ſeized to the uſe of the Feoffor and his Heirs, becauſe no conſideration was wherefore they ſhould be ſeized to their own uſes; yet the ſame could not make a new uſe to the ſaid Lord and his wife in tail, without conveying an Eſtate, &c. for the wife is a ſtranger to the Land, and the ſame cannot be a Will or Teſtament: for the Eſtate mentioned in the ſaid writing ought to be made to the ſaid Lord and his wife, who could not take by his own Will; and this matter was depending in the Chancery. And the adviſe of the Iuſtices being there required, they delivered their Opinions, That by that writing no uſe was changed, nor any uſe veſted in the ſaid Lord and his wife, and a Decree was made accordingly, until proof was made that ſuch an Eſtate was made, &c.

Trin. 29 Eliz. In the Common Pleas. CCLXXI. Walgrave and Somerſets Caſe.

IN Treſpaſs by Walgrave againſt Somerſet, the Caſe was, That tenant at will cut down Trees, and the Leſſor brought Treſpaſs vi & armis: And the Court was clear of opinion, that the Action was well maintainable modo & forma, and Iudgment was given accordingly. Vide Litt. 25. that Treſpaſs lyeth, but he doth not ſpeak of vi & armis. See for that 12 E. 4. 8. by Fairfax and Genny, 22 E. 4. 5.

CCLXXII. Mich. 30 Eliz. In the Common Pleas.

IN Debt upon an Obligation, the Defendant ſaid that the Obligation was endorced with a Condition for the performance of Covenants contained in an Indenture, &c. The Plaintiff aſſigned the Breach in this, that the Defendant himſelf by the ſame Indenture, that the ſaid Houſe was diſcharged of all former Eſtates and Incumbrances, &c. And further ſhewed, that the Defendant had made a former Leaſe of the ſaid Houſe to one A. B. in the County of Warwick; to which the Defendant ſaid, that tempore dimiſſionis he was within age; upon which they were at Iſſue, and it was tryed in the County of Warwick, where it ought to be tryed where the Writ was brought: But the whole Court held the contrary,Trial. that the tryal was well enough; as if in an Aſſiſe the Tenant pleadeth a Releaſe of the Plaintiff in a foreign County; to which the Plaintiff pleads, that at the time of the Releaſe he was within age, upon which they are at Iſſue; the Iſſue ſhall be tryed in the County where the Releaſe is pleaded to be made, and not where the Writ is brought.

CCLXXIII. Temps Roign Eliz.

ACtion upon the Caſe was brought for ſtopping a way: The Plaintiff declared that the Duke of Suffolk was ſeized of a Houſe in D. and let the ſame to the Plaintiff for life, and that the ſaid Duke, and all thoſe whoſe Eſtate, &c. had uſed time out of mind, &c. to have a way over the Land of the Defendant to the Park of D. to carry and re-carry neceſſary wood for the ſaid Houſe, from the ſaid Park to the ſaid Houſe: And further declared, That the Defendant Obſtupavit viam: It was moved, that upon the matter no Action upon the Caſe did lye, 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 had had but an Eſtate for years, then an Action upon the Caſe would lye and not an Aſſiſe: And it is not material if the Plaintiff have but an Eſtate for years in the Park, Q • od fuit conceſtum per totam Curiam. It was holden alſo that this word Obſtupavit was good enough without any more, ſcil. without ſhewing any ſpecial matter of diſturbance,Nuſance, Obſtupavit. as the erection of ſome Gate, Hedge, Ditch, &c. for Obſtupavit implyeth a Nuſance continued, and not a perſonal diſturbance, as Foreſtaller, or ſaying upon the Land, &c. that he ſhall not go over, or uſe that way: But as to a local and real Nuſance, the word Obſtupavit amounts to Obſtruxit: And although in the Declaration is ſet down the day and year of the ſtopping, yet it ſhall not be intended that it continued but the ſame day; for the words of the Declaration are further, That he was diſturbed in the way, and yet is; and ſo the continuance of the diſturbance is alledged; and of that Opinion was the whole Court.Action upon the C • ſe. Preſcription. Leonard Prothonotary, He hath declared of a Preſcription habere viam tam pedeſtrem, quam equeſtrem pro omnibus & omni • odis cariagiis; and by that Preſcription he cannot 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 cariagus, without ſpeaking of Horſe or Foot-way.

16 Eliz. In the Common Pleas. CCLXXIV. The Archbiſhop of Yorks Caſe.

TollTHe King granted to the Archbiſhop of York the Toll of Corn ſold in the Market of Rippon: And afterwards the King granted to the Mayor and Citizens of York to be diſcharged of Toll through all the Realm; and afterwards the Archbiſhop exchanged his Manor of Rippon with the King for another Manor: It was moved, If now the Citizens of York ſhould be diſcharged of Toll within the Mannor of Rippon Dyer ſaid that they are not diſcharged of Toll, for the Grant to the Archbiſhop was eigne to the Grant made to the Citizens, and by the exchange the King had new Right: And when the King grants over the Manor of Rippon, the Grantee ſhall have the Toll, notwithſtanding the Grant made to the Citizens, for the Grant made to them was void as to diſcharge them of Toll at Rippon, and the Grant of the King to the Citizens ſhall not take effect after the exchange; for the Grant was void ab initio. But if the Grant of the King to the Archbiſhop had been made for life, then the Grant of the King made to the Citizens ſhould take effect after the Eſtate for life determined: And the better Opinion was, That Toll ſhould be paid.

Hil. 16 Eliz. In the Common Pleas. CCLXXV. William Wallers Caſe.

WIlliam Waller ſeized in Fee 26 H. 8. made a Feoffment to the uſe of his laſt Will, and by that deviſed his Manor of Ruſſels to Rich. Waller his Son in Tail, and dyed. Rich. Waller entred, and was ſeized by force of the Statute 27 H. 8. and afterwards 2 E. 6. by his Deed in conſideration of a Marriage to be had between him and one Eliz. A. enfeoffed Worſley and others to the uſe of himſelf and the ſaid Eliz. for their lives, and after the uſe of the ſaid Rich. Waller, and his Heirs, and dyed; Eliz. took to Wife Clavell, they both by Fine granted the ſaid Mannor to Tho. Lamb: Habend' eidem Thomae & haeredibus ſuis tota vita ipſius Eliz. Tho. Lamb entred, and dyed ſeized, Tho. his Son and Heir entred, againſt whom Thomas Waller, Son and Heir of Rich. brought a Formedon, the ſaid Eliz. being alive, the Tenant ſaid, he is within age, and prayed that the paroll might demur; but Non allocatur, for he was but as an Occupant during the life of Eliz.

CCLXXVI. Reſiduum of Sir Francis Englefields Caſe.

THe Caſe of Sir Francis Englefield was argued by Popham; and he ſaid, That this Condition was not ſuch a private Condition, or ſo running in privity, but that it might be transferred by 33 H. 8. or 29 Eliz. to the Queen; for although that the conſideration which moved and induced Sir Francis to create the Condition be private and particular, yet that notwithſtanding the Condition it ſelf is general; for the private cauſe of the Condition doth not make the Condition private, but as in other Caſes, and he put the Caſes before of Ranſom: But if the Condition had been conceived in theſe Terms, ſcil. If my Nephew ſhall be given to intollerable Vices, then if I tender, &c. there it had been otherwiſe. Vide the Statute of 33 H. 8. cap. 20. by which it is enacted, That if any Subject is attainted of High Treaſon by the courſe of the Common Law, the King by ſuch Attainder ſhall have ſuch benefit and advantage as well of Vſes, Rights, Entries, Conditions, &c. as of Poſſeſſions, Reverſions, &c. as if it had been done and declared by Authority of Parliament, that is as much as to ſay, as if the Condition in its proper terms had been given to the King by Act of Parliament, &c. and vouched Dacres caſe 17 Eliz. cited by him before, where, upon a Grant of all his Goods and Chattels revokable upon tender of 5 s. it was reſolved, That ſuch a Condition was given to the King, and by ſpecial Grace of the Queen Sir Tho. Gorge had the benefit of it: And here, although the cauſe of the Proviſo be private and ſpecial, yet the Condition is not tyed in the cauſe, and the Statute gives to the Queen all Conditions which are uſual, and for the benefit of the Queen; and at the time of the making of this Statute ſuch Conditions were uſual, & tunc temporis, the Condition was pen'd, not by way of re-entry, but that the uſe ſhould be void; and that ſuch Conditions were uſual at the time of the making of the Statute of 29 Eliz. appeareth by the Statute made two years before, ſcil. 27 Eliz. for the repreſſing of fraudulent Conveyances: By which it is provided by an expreſs branch of it againſt ſuch Conditions containing power of Revocation; and Laws are for the moſt part made to give order for things which may happen: And I conceive, That this tender for the Queen is well enough for the time, notwithſtanding all the terms are paſt, yet the two years are not incurred: I covenant within a year to ſuffer a common Recovery, all the terms are paſt without any Recovery ſuffered, yet no Action lyeth upon that covenant before the year be fully expired, although that the terms be paſt, it being impoſſible to ſuffer a Recovery within the time prefixed: A. covenants with B. in conſideration of Marriage to ſuffer a Recovery before the Feaſt of St. Michael, and if A. before the ſaid Feaſt doth not ſuffer ſuch Recovery, that then he ſhall be ſeized to the uſe of C. Trinity Term paſſeth without any Recovery had, yet no uſe ſhall riſe before the ſaid Feaſt: And I conceive that there needs not here any Office; but if the Condition be to be performed on the part of the Patentee, then the breaking of the Condition ought to be found by Office; contrary where the condition is to be performed on the part of the King: For acts which Subjects do, are matters in pa • s, therefore an Office is requiſite to make them of Record; but where the Queen doth any thing, there needs not any Office to make it of Record: The Queen herſelf might tender the King, but by commiſſion under the Great Seal ſhe hath authorized another to do it, and ſhe hath taken ſufficient notice that there was ſuch a condition: And when the Certificate is made and retorned, the ſame is ſufficient to inform her that the condition is performed, for the Certificate being retorned, is of record as well as the Commiſſion, as the retorn of the Writ: And he cited the Caſe before cited, Bartues Caſe, 2 Eliz. Dyer. The King leaſed the Manor of D. for years to A. upon condition, that if the King at any time during the term ſhall make a Leaſe to the ſaid A. of the Manor of S. for life, then the Leaſe for years ſhall ceaſe and be void; the King makes the Leaſe for life, the leaſe for years is void without any Office, for the Leaſe for life is upon record: The caſe of Auditor, 3 Eliz. Dyer 197. where the Forfeiture of the Office appears of record: And Baron Plags Caſe 15 H. 8. ibidem, the determination of the Office of Remembrancer by acceptance of the Baron ſhall bind in the Exchequer, void without a Scire Facias or Office. Vide etiam Dyer (5 Ma. 159.) he being Iuſtice of the Common Pleas, was made Iuſtice of the Kings Bench his firſt Office was gone and determined: Alſo he ſaid, That the Condition (being performed ut ſupra) ſua vi & virtute, without any Office ſhall make void the Conveyance to which it was annexed. And if Sir Francis, being attainted, had tendred the King, ipſo facto as it worked to him, ſo ipſo facto it ſhould work to the Queen. When the Act of 29 Eliz. had made the Aſſurance void, the Land is in the Queen preſently, by means of Sir Francis, to whom the Land returned, and from him in the ſame inſtant veſted in the Queen. Cook to the contrary: The Condition is not given to the Queen: Words make the Plea; therefore the words of the Condition are to be conſidered, in which it is to be ſeen if this Condition be annexed to the privity of Nature, or be general. The Form of the Condition is, Sir Francis being a man of great Living, and having a great Manor of his own Name, in conſideration of the preſervation of his Name and Blood, &c. covenanted to ſtand ſeized, &c. And further, pro eo quod, his ſaid Nephew was of tender age, and his proof could not now appear, and it might be that in time to come he might be given to intolerable Vices; therefore the ſaid Sir Francis did not think it convenient to ſettle the ſaid Inheritance in his ſaid Nephew abſolutely without a bridle to reſtrain him, therefore it was provided, That if the Vncle delivered a King of Gold to his Nephew, to the intent to make void, &c. And this is a ſpecial Condition, private and peculiar to the perſon of Sir Francis incident to him, and to no other, and incommunicable; and therefore it is not given to the Queen: But ſuch Conditions which the Heir▪ Lord by Eſcheat, or Executors may have, the Queen ſhall have by the Statute 10 H. 7. 18. Leſſee for years of a Houſe covenants to repair it within ſix years, within which term he dyeth, no reparation being made, covenant lyeth againſt the Executors; contrary if the covenant had been that he ſhould repair during his life. It hath been ſaid, That the things which are matters of privity are the conſiderations which cauſed Sir Francis to make this Proviſo, but they are not any part of the condition or Proviſo: Truly the conſideration raiſes the uſe, and precedes the Proviſo which is tyed to the conſideration with an Ideo, and all is but one Sentence knit together with the Ideo. And although conſideration of Blood be not parcel of the Proviſo, yet that which follows is, ſcil. for that his Nephew, &c. And in this Conveyance Sir Francis praeſtitit utrumque munus Nutricis, ubera, & verbera. And Acts of Parliament do not give away things knit to Nature, by the general words All things. Vide the Lord Brays caſe, 2 Eliz. Dyer 90. The Father having the Wardſhip of his Son and Heir apparent, if he Outlawed ſhall not forfeit the ſame, for it is inſeparable to him, notwithſtanding that the Land be holden of the Queen, and ſo Nature cannot be transferred, therefore neither this Proviſo. And ſo is the Tenure of Frankalmoigne 35 H. 6. 58. and it ſhould be a great rigour to take the bridle out of the hands of the Natural Vncle, into the hands of Iuſtice, which is Manus regia: And he cited the Caſe of the Lord Norris, where it was rul'd, That where the Act of Attainder of Norris gave to the King all Rights, Titles, &c. yet a Writ of Error was not given thereby. (Manwood, Actions are not expreſly given by the ſaid Act of Attainder.) As to the ſecond point, I conceive that the Coveyance is become void when the terms within the two years are paſſed, and ſhall not expect until the two years be expired, for the Inrollment ought to be within the term; ſo that if all the terms of the two years be paſt it is now impoſſible for to inroll the Deed within the time limited by the Statute, and then, by 29 H. 8 the Conveyance is void, and then is the Queen ſeized in Fee at the time of the making of the Leaſe by the Attainder of Sir Francis: As to the Certificate, without Office it is not ſufficient to entitle the Queen to the Land; and I deny the difference put by Popham between a Condition to be performed on the part of the Patentee, and on the part of the King: I confeſs that a Certificate to inform the Queen, or her Councel, of the quantity, quality, value, &c. of the Land, is good without Office, but not to entitle the Queen de novo to the Inheritance of another; I grant that the Commiſſion is of Record, but the tender of the King is matter in pais, and not of Record. Three things ought to be obſerved in every Certificate, to make it a good and lawful Certificate according to the courſe of the common Law, unleſs it be in caſes of neceſſity, as in caſe of Ouſter le mere, &c. 1. It ought not to be in the abſence of the party. 2. It ought to be pendente placito convocatis in ea parte convocandis. 3. It ought to be directed to a known Officer; but a thing certified by a private perſon, being no Officer, cannot be good. Alſo a Certificate according to the courſe of the common Law, being good, is not traverſable. At another day, the Caſe was argued by Egerton Solicitor for the Queen: The Condition is given to the Queen by 33 H. 8. and alſo by 29 Eliz. and this Condition in it ſelf is a general and ordinary Condition, and reſts not in privity, and ſuch an Act as may be made by any ſtranger as well as by Sir Francis himſelf, ſcil. the tender of the King. The reaſons which moved Sir Francis to knit this Condition to the Conveyance were natural, but the Proviſo and the performance of it not tryed to Nature, and therefore all the caſes of privity are here out of Seiſin. As to the Lord Brays Caſe, the ſame was not any Wardſhip, but only an Order for the government or his Son and Heir; for the Wardſhip of the Father in the Son is not a Chattel in him. As to the Caſe of the Lord Norris, the Writ of Error could not accrue to the Queen, for by the Act of Attainder no Actions were given to the King: And here is not any ſuch privity as hath been pretended, for by the words of the Proviſo the Ring might be tendred to his Executors or Adminiſtrators, therefore the Condition might be tendred when he is dead, therefore without privity. Title for alienation in Mortmain of Lands purchaſed by a Villain of the King, or for a Condition broken, are not in the King before Office: But here the Condition is to be performed on the part of the Queen, which her Royal Majeſty cannot perform, and therefore Commiſſioners are appointed to do it, which they have done, and upon the Commiſſion retorned, have informed the Queen of all the performance of it, and all is now upon Record. And there is a great difference between Certificates, as in our caſe, and Certificates which have been cited on the other ſide, which are uſed to make Tryals upon Iſſues joyned betwixt party and party, and in ſuch Certificates I confeſs the Law, as Cook hath argued: The Sheriff is not known to be ſuch an Officer, but by his Commiſſion under the Great Seal, he upon a Writ of the King to him directed, Summons, Diſſeiſins, Attaches, &c. theſe are matters in fait; but when the Sheriff hath retorned his Service, then it is become matter of Record: So in our caſe, the retorn of the tender, &c. where the Queen is to be informed of the Lands of the Subject which ſhe is to have, there ought to be an Office; but here the Queen is to do an act, and that ſhe hath done under the Great Seal by Commiſſion, by the Retorn of which ſhe is in the whole matter, therefore there needs not an Office to inform her of that which ſhe her ſelf hath done by another Authorized by her to do it: And he ſaid that the Leaſes made by the Queen, being Tenant pur auter vie, were not void ab initio, but from the time of the two years, but now the Eſtate of the Queen for life is determined, therefore alſo the Leaſes derived out of it. Exception hath been taken to the Information, ſcil. Praedictus Franc' per Indenturam ſuam factam inter, &c. without ſaying ſigillo ſuo ſigillat', that is good enough; for facta eſſe non potuit, niſi etiam ſit ſigillat', therefore facta includes ſigillat': And afterwards Trin. 33. Eliz. this Caſe was argued by the Barons. Clark puiſne Baron ſaid, That Iudgment ought to be given for the Queen. And firſt he ſaid, I conceive that here upon this Indenture is no uſe created in Sir Francis, for he ſhall pay for a Licence of Alienation if the Lands be holden in chief; and they themſelves in pleading the uſes, ſay Virtute cujus the ſaid Sir Francis was ſeized in his Demeſne as of Freehold for his life the remainder thereof, &c. Although this Condition be tyed to Nature, and reſts in privity, as hath been objected and ſo inſeparable, yet by Act of Parliament it may be transferred. Impropriations, Frankalmoign, Frankmarriage, Guardianſhip in Socage cannot be given away regularly, but by Act of Parliament they may; which vide for Impropriations by the Statute of 31 H. 8. Impropriations of Abbies and Priories diſſolved, nam Parliamentum omnia poteſt: It may alter the nature of Lands, make Gavelkind diſcendable according to the courſe of the common Law, and ſo of Borough-Engliſh: Attaint, Error, Diſceit, &c. are Actions which lye in privity, yet by Act of Parliament they may be transferred: And in the caſe of the Lord Norris, If the Act of Attainder had given to the Queen all Actions, ſhe might have had a Writ of Error: And we ſee by experience, That the King and his Aſſigns have advantage of conditions annexed by Abbots to their Leaſes, and that by 31 H. 8. and our condition is not ſo proper or peculiar to Sir Francis, for by the words of it any other perſon might have tendred the King for Sir Francis, ſo as it is not tyed to his perſon. If the Provi • o had been. Becauſe it may be my Son will marry without my conſent Or it may be I ſhall have more Children Provided therefore, that if I tender, &c. that pretence of Marriage without aſſent, or plurality of children, is not any parcel of the condition. And he vouched the caſe between Clovell and Moulton; A. ſold Lands to B. and it was covenanted betwixt them, That A. upon requeſt made unto him, or his Heirs, ſhould make further aſſurance to B. of the ſaid Land; A. is attainted, now the covenant is ſuſpended, for A. hath not any Heir, afterwards the Heir of A. is reſtored by Parliament, with a ſaving to others of all their rights, &c. B is not aided by that ſaving ſo as he can make requeſt to the Heir of A. &c. And he ſaid, That the tender of the King is well enough for time; for although all the Terms were paſt, yet the two years were not expired: A. covenants with B. That if A. doth not levy a Fine to B. of the Manor of C. within two years, that then A. ſhall be ſeized of the Manor of D. to the uſe of the ſaid B. Now although that all the Terms be paſt ſo that no Fine can be levied according to the Covenant, yet no uſe ſhall riſe out of the ſaid Mannor of D. before that the two years are fully expired: And here needs not any Office by which the tender ought to be found, the Commiſſion authorizing the tender, and the retorn of the Certificate by the Commiſſioners is ſufficient; for the whole matter in fait is become matter of Record; as the Execution of a Writ once by the Sheriff being retorned, and the party grieved by the Certificate ſhall have a traverſe to it; but where a Certificate is in lieu of a Tryal, as of Baſtardy by the Biſhop; in Caſe of Seddition or Diminution certified in a Writ of Error, there no traverſe lyeth to it; but upon Certificate of not payment of Tythes, the party grieved may have a Traverſe: In our Caſe here If the Subject continues poſſeſſion after ſuch Certificate made, he is an Intruder. The Queen when ſhe made the Leaſe was Tenant for the life of another, and afterwards by the tender of the King according to the Provilo all the Conveyance, and the Eſtates limited by it, are diſſolved, and the Fee-ſimple veſted in Sir Francis, Quaſi ab initio, and immediately alſo in the Queen by the Attainder, whoſe Eſtate is paramount the Conveyance made by Sir Francis, which is now, as if it had never been made, and ſo are all the Eſtates created by it, and then the Leaſe made ut ſupra is void. As to the Exception which hath been taken to the Information, (Indentura ſua) without ſaying, Sigillo ſuo ſigillat, it is well enough, for ſo much is ſaid in effect; for Non eſt Indentura ſua, if it be not ſealed, and all neceſſary circumſtances are not to be pleaded, as the delivery of the Deed, or livery upon a Feoffment, for a Feoffment includes livery, and a Deed delivery. Gent, Baron to the ſame intent: Here the words of the Proviſo are, Tender to Sir Francis, his Executors or Aſſigns, no words of Heirs, and on the part of Sir Francis, If he, or any for him: But in Dacres caſe, If the ſaid John Dacres himſelf, and yet the Queen took advantage of ſuch a Tender. Manwood chief Baron to the ſame intent. As to the Exception to the Information, ſcil. Per Indenturam ſuam, without ſaying Sigillo ſuo ſigillat'; for if the Indenture was not Sealed, then it was not any Deed, and then no Covenant, and then no Vſe, and then no Condition, &c. But I conceive, That the Information is good enough, for Covenants by Indenture include Sealing and Delivery, and other things which are of the Eſſence of an Indenture, which need not to be pleaded, becauſe in Law preſumed: But for a clear Anſwer to it, Sealing and Delivery are matters in pais, therefore confeſſed by the Demurrer: And here the Defendants have pleaded Quod bene & verum eſt, That the ſaid Sir Francis by the ſaid Indenture, &c. covenanted, &c. and if any imperfection be in the pleading, it is now ſaved by the Demurrer. An Exception hath been taken to the bar, becauſe the Defendants have pleaded three ſeveral Leaſes of ſeveral parcels of the Lands in queſtion, and concluded, Virtute quarum quidem conceſſionum, they were poſſeſſed and entred, &c. which cannot be good, becauſe ſeveral Intereſts and Eſtates, but ought to have pleaded ſeverally, ſcil. One Leaſe of ſuch Land in which the Intruſion is ſuppoſed, and ſo concluded Virtute cujus. they were poſſeſſed, & ſic de caeteris. and ſo to each Intereſt one ſeveral Concluſion: A. hath an Annual Rent of 10 l. out of Bl. Acre, and another Rent of 20 l. out of, &c. and another Rent of 30 l out of the ſame Acre and takes a Diſtreſs in Bl. Acre aforeſaid, and avows for all the Rents together, the Avowry is not good, for how can the Avowant have a Retorn? when Non conſtat Curiae, how many of the Cattel he took for one Rent, and how many for another: As to the matter in Law, firſt, If this Condition doth extend to the Eſtate of Sir Francis, Nihil habet quaeſtionis; for by the performance of the Condition Sir Francis is in ſtatu quo prius, and ſo all the Eſtates limited by the ſaid Indenture quite plucked up by the root. As to the Condition, I conceive that it is not knit in privity to Sir Francis, and doth not depend upon his liking or diſliking: The Act it ſelf, in which is the performance of the Condition, doth conſiſt in the tender of the Ring, the words preceding purporting the doubt of the proof of his Son, and the bridle, &c. are his Motives by which he was induced to make the Condition, not to perform the Condition. nor any part or parcel of the Condition, or word of Condition. The words of the Condition are, If he himſelf, or any other by his appointment ſhall tender, &c. What privity is here? who knows who ſhall be his Deputy to make the tender? It may be any perſon in the World, therefore no privity in the perſon who is to tender; and as to the perſon to whom the tender is to be made, there is no privity there, for it may be made to the Nephew, his Executors or Adminiſtrators. Alſo no preciſe place is ſet down in the Condition where the tender ſhall be, it may be in Ireland, Scotland, or in any other Country, therefore the Condition in all points general, and ſo free as an ordinary Condition: But if the Condition was to be performed by Sir Francis in his proper perſon, or by ſubſcribing his name with his hand, or ſuch like act, then it had been otherwiſe. The caſe of Littleton 76. A Feoffment in Fee is made upon Condition, that if the Feoffee pay to the Feoffor ſuch a day 10 l. then the Feoffee ſhall have the Land to him and his Heirs for ever, and before the day the Feoffee makes a Feoffment over upon a Condition, the ſecond Feoffee tenders the Mony, it is a good tender, and yet the words of the Condition do not extend ſo far, but only to the firſt Feoffee, who was privy to the Condition; ſo where the payment is to be made on the part of the Feoffor, and he dyes before the day, tender by the Heir is good; and here, this is a general Condition, and therefore may be performed generally without being reſtrained to any perſon for the performance of it: And here, we are in an Act of Parliament, Quod omnia poteſt, 32 H. 8. gave to Aſſigns of the Reverſion which always before were fixed in privity. Monks dead perſons in Law, by Act of Parliament made capable of Purchaſe and Inheritance; Gavelkind and Borough-Engliſh made diſcendable at the common Law, which the King could not do: An Alien born is made Denizen by the King, by which he may Purchaſe, but yet not inherit: But an Act of Parliament may make him heritable; Corruption of Blood the King cannot take off, but it ought to be purged by Act of Parliament. As to the Statute of 29 Eliz. it hath made the Conveyance void, as hath been objected; for the Terms within the two years limited by the Statute are paſt, and then the Condition is gone, as againſt Intail upon Condition, if the Intail be ſpent the Condition is gone: But I conceive, that until the two years be fully expired, the Eſtates limited by the Conveyance continue, and the Condition alſo. The words of the ſaid Statute are, (Shall within two years after the laſt day of this Seſſion, &c. openly ſhew and bring forth into the Queens Court of Exchequer, his Conveyance, and there in the Term time in open Court, ſhall offer and exhibit the ſame;) Theſe words ſhew that the parties ought to ſhew the Conveyance within two years, but doth not ſpeak of any term and in the other Clauſe it ſpeaks of term, but not of two years; ſo the time in which it ought to be ſhewed is two years, but the time of the Inrollment might be in the term after the two years well enough; for there are two two times in the Statute, the one to ſhew the Conveyance, the other for the Inrollment of it, and two things are to be done, Shewing and Inrollment, and two times anſwerable to them, two years, and Term-time. And he took it for a general Rule, that time once expreſſed, ſhall not be afterwards by implication abridged. And if by your conſtruction you make the time to end with the Term, you abridge the time by a Month at leaſt, which was expreſſed before, two years. And for the reaſonable conſtruction of times, Vide 28 H. 8. Dyer 44 Boulds Caſe. If it fortune Joan Moll' to deceaſe before the Feaſt of &c. without Iſſue Male of her Body then living, &c. this word (then) ſhall be referred to the Feaſt, and not to the time of the death of the party; for (as the reaſon of the Caſe is) where the intent of the parties is to have continuance in the thing, the thing which they would have continue to the moſt extream time as may be: And if Lands be given to one and the Heirs Males of his Body begotten, and if he dye without Heirs of his Body, then it ſhall remain over; by this Implication (if he dyes without Heirs of his Body) the Donee ſhall not have general Tail, but it ſhall be intended ſuch Heirs to whom it was limited before. And in our Caſe here, there are ſome weeks between the ends of the Terms, and the end of the two years, and thoſe weeks ſhall not be utterly void, for in theſe weeks after the end of the Terms thoſe of the Chancery ſhall take Conuſance of Deeds: And here in our Caſe, the party was only to ſhew the Deed, which might have been done at any time after the Terms, ſo as it be within the two years; if one be bound with Condition, That if within two years he pay the Queens Silver upon a Fine to be levied, and then and there in Term time ingroſs the ſame, if he pay the Queens Silver within the two years, he hath ſaved his Bond, although that the Fine be not ingroſſed until a Term after the two years: So if one be bound to acknowledge a Deed in the Chancery within two years, and there in the Term-time to Inroll the ſame, if he do acknowledge it within two years, it is ſufficient, and he may inroll it afterwards: So in our Caſe, the Eſtates continuing, and the Condition alſo till the two years are fully expired, therefore the Condition is well performed; for the Eſtate continues defeazable by the Condition, becauſe within the two years, and to abridge time is a violent thing. And now Sir Francis is alive, ſo as the power of the tender of the power of the King continueth: And I conceive, That the Certificate is ſufficent without any Office, and the party grieved may have traverſe to it: And I hold clearly, that as this Caſe is Office cannot be found. Office properly is to be found of things in pa • s which happen before the Office, as the Nonage of an Heir, or of an Alien born or of a Villain; here to entitle the King an Office is neceſſary to find things which have hapned before; and without doubt this Certificate is traverſable, as the Certificate of the Biſhop of Recuſancy; and alſo the Certificate of the Commiſſioners of Sewers, and here thoſe who are to certifie, are to certifie a thing done by themſelves and therefore there needs not any Office, becauſe they do it virtute Commiſſionis. If a Commiſſion be awarded to take a Surrender of the Biſhoprick of N. or of a Pentioner &c. there needs not any Office to find it; and in the time of King Hen. 8 divers Abbots ſurrendred their Poſſeſſions to him, of which no Office was found. And now for concluſion; The Queen comes in paramount her firſt Eſtate which ſhe had pur auter voy, ſcil. by Attainder, and now ſhe hath it by the Condition, and ſo paramount the Title under which the Defendants claim: And afterwards Iudgment was given for the Queen.

Trin. 31 Eliz. In the Common Pleas. CCLXXVII. The Scholars of All Souls and Tamworths Caſe.

This Caſe is Reported in the firſt Part of Leonard. IN a Writ of Right by the Colledge of All Souls in Oxon againſt Tamworth, the Writ was, Quod clamat tenere de nobis in liberam, puram & perpetuam Elemoſinam. And Exception was taken to it, becauſe it ought to be Liberam Elemoſinam, without puram & perpetuam. Alſo it ought to be with a double ee, and not Elemoſinam, ſed non allocatur • for as to the firſt Exception it is but Surpluſage, and as to the other it is the common courſe. Another Exception was taken to the Writ, becauſe that the words are, Quod clamat eſte jus & haereditat' ſua, without ſaying in jure Collegij. An • er • on, The Writ is good enough. If a Parſon pleads that he is ſeized, he ſhall ſay in jure Eccleſiae, for he hath two Capacities, and without thoſe words he ſhall be intended to be ſeized in his own right: But if an Abbot plead that he was ſeized he needs not ſuch words, for that he hath not any other capacity: And ſo of Dean and Chapter, Mayor and Commonalty, and afterwards the Writ was awarded good, and that the Tenant ſhould anſwer over, Vide Liber Entries, 236, 237. It was alſo moved, If the Colledge ſhould count of his Seiſin within 30 years, becauſe that the Corporation never dyes, and then if he count upon his own poſſeſſion: And it was holden, That if the Warden of the Colledge that now is, was ever Seiſed, he ought to count upon a Seiſin within 30 years: But upon the Seiſin of his Predeceſſor he ought to count of a Seiſin within 60 years, as another common perſon: For the change of the Head, if ſuch Seiſin, is as the dying ſeized, and deſcent of a common perſon.

Mich. 15 Eliz. In the Kings Bench. CCLXXVIII. Wood and Chivers Caſe.

IN Ejectione firmae between Wood and Chivers, the Caſe was, That the Biſhop of Salisbury let the ſame Chivers the Manor of Lanington for 80 years for 40 l. rent, payable at four uſual Feaſts, upon Condition that if the rent be behind by the ſpace of three Months after any of the Feaſts in which, &c, then a re-entry: The Biſhop dyed, after confirmation, J. S. was created Biſhop, who granted to R. the Office of Receiver of all his Revenues, &c. exercend' per ſe vel Deputat. ſuum; and afterwards the Biſhop made a ſpecial Letter of Attorney to the ſaid R. to demand the rent, and if it were behind to re-enter: R. at the laſt day of the three Months came to the Capital Meſſuage of the ſaid Manor, an hour before the ſetting of the Sun; for to demand the rent due at Midſummer then laſt paſt, but none was there on the part of Chivers the Leſſee to pay the rent, for which R. left his Servant in the Hall of the ſaid Meſſuage, commanding him to ſtay there, and if any came to pay the ſaid rent, that he give to him Notice thereof, and afterwards he went out of the ſame Houſe, and walked in a Lane which was within the Gate of the Houſe, and did not return into the Houſe until the Sun was ſet, and then he returned, and becauſe the rent had not been paid, he digged a Clod of the Land in the Name of the Biſhop, and ſo re-entred: And afterwards the Biſhop let the ſaid Manor to W. for three years by Deed, ſigned and Sealed; and becauſe C •• vers continued his poſſeſſion notwithſtanding the re-entry, he made alſo a Letter of Attorney to M. to enter into the ſaid Manor in the Name of the Biſhop, and to deliver the ſaid Deed of the ſaid Leaſe to the ſaid W. upon the Land, as his Deed and theſe two Deeds the Biſhop in his Chamber delivered to the ſaid W. but not as his Deed: But he ſaid unto him, Here is the Leaſe, and a Letter of Attorney to M. and he ſhall enter in my name, and deliver to you the Deed of his upon the Land, as my Deed upon the Land: Whereupon he took the two Deeds, and delivered them over to M. who by force thereof entred upon the Land, &c. An Exception was made, becauſe it doth not appear here that the Biſhop delivered the Letter of Attorney to M. himſelf, nor to the uſe of M. and then it may be taken, that the Deed of Letter of Attorney was delivered to M. to keep only, and not as his Deed. But that Exception was now allowed: For it was holden that the Livery in the Manor was good enough, and ſo the Letter of Attorney ſufficient; for in all Deeds of Feoffments in which Letters of Attorney are contained, the Livery of the Deed is to the Feoffee only and no mention made of any delivery to the Attorney, for by ſuch Letter of Attorney no Intereſt is to paſs, but only an Authority. And note, It was reſolved by all the Iuſtices, That in the computation of theſe three Months there ought to be allowed to every Month 28 days: And now we are to ſee if this Rent be well demanded, becauſe the demand was made an hour before Sun-ſetting, and then the party went out, and walked in the Lane till the ſetting of the Sun, without any other demand: And it was moved that this walking in the Lane, which was not a common High-way, but a private way, and that the Houſe of the ſaid Farm was of the one ſide of the Lane, and the Farm-land on the other, and ſo the Land parcel of the Farm, and then his walking there is a continuance of the demand; quod Catlin conceſſir, was the Lane a High-way, or not, for the Manor is on both ſide. And it was agreed by all the Iuſtices, That if the Leſſor cometh to the Land before the laſt hour, viz. in the Morning, or in the Afternoon, and demands the Rent, and afterwards goes off the Land, and is not there at the laſt inſtant of the day, the ſame is not a ſufficient demand, although that return be preſently after the Sun is ſet: And by Gerrard Attorney General, If the Leſſor cometh upon the Land at the laſt day before the laſt inſtant, as in the morning, &c. and demands the Rent, and continues there upon the Land till the Sun be ſet, without making any other demand, yet the demand for the Manor is good enough, for his preſence there is the continuance of the demand, Quod fuit conceſſum per totam Curiam. And by Catlin, If the Leſſor after his demand in the Morning departeth off the Land, and before the laſt inſtant returneth, and ſtays upon the Land till Sun-ſetting, there is the continuance of a demand, without any further demand, which Wray Chief Iuſtice conceſſit. And it was holden in this caſe, That where R. left his Servant in the Houſe to ſtay there, and to ſignifie to him that if any perſon came to pay the Rent, that that was not any continuance of the demand, for R. himſelf was but a Servant, and he in that buſineſs could not make a Servant: And Catline ſaid, That the Biſhop himſelf might by word command his Servant to demand a Rent, and to make a Re-entry, Quod fuit conceſſum, but in our Caſe R. had not commanded his Servant to make any demand: And ſo here upon the whole matter is not any ſufficient demand; and ſo Wray Chief Iuſtice ſaid.

CCLXXVIII. Trin. 29 Eliz. In the Common Pleas.

ACtion upon the Caſe was brought for theſe words, Thou wouldſt have ſtoln my Cloak if J.S. had not come in the way; and thou art a Thief, and I will prove it. After Verdict it was found for the Plaintiff. It was objected in Arreſt of Iudgment, That theſe words were not actionable: For the firſt words, Thou wouldſt have ſtoln my Cloak, &c. do not by Law give any cauſe of Action, and when the words ſubſequent, Thou art a Thief, are depending apon the ſaid former words, and to be conſtrued as ſpoken in reſpect of them, and upon that intent. But the Opinion of the whole Court was to the contrary. And that the ſaid latter words ſhould be taken and conſtrued in abſtracto by themſelves, as in groſs, and not as dependant upon the former words, and afterwards Iudgment was given that the Plaintiff ſhould recover.

Mich. 26 Eliz. In the Common Pleas. CCLXXIX. Hungerford and Watts Caſe.

HUngerford brought an Action upon the Caſe againts Watts, Words. for that the Defendant had ſaid, That the Plaintiff had cauſed the Defendant to be arreſted with forged Writs. It was objected, That the words were not actionable; for it might be that the Writs were forged by ſtrangers without the privity of the Plaintiff, and that the Plaintiff not knowing them to be forged procured the Arreſt. But the Opinion of the Court was, That the words were actionable; for the word (Cauſed) extends as well to the Forgery as to the Arreſt, and ſo amounts to the ſlander of Forgery.

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

Coſts.IN an Action upon an Eſcape the Plaintiff is Nonſuited: It was holden that the Defendant ſhould not have Coſts. Note, The words of the Statute upon an Action upon the Statute of 23 H. 8. for any offence or tort perſonal to be ſuppoſed to be done immediately to the Plaintiff. Notwithſtanding this Action is quodam modo, an Action upon the Statute 1. by Equity of the Statute of Weſt. 2. cap. 11. which giveth it expreſly againſt the Warden of the Fleet: Yet properly it is not an Action upon the Statute, for in the Declaration in ſuch an Action no mention is made of the Statute which ſee in the Book of Entries, 169, 171. and alſo here 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, and that it doth not here, and yet at the Common Law, before the Statute of Weſtm. 2. an Action upon the Caſe lay for an Eſcape, and ſo by Dyer, Manwood, and Mounſon, Coſts are not given in this Caſe. And by Dyer upon Nonſuit in an Action upon the Statute of 8 H. 6. the Defendant ſhall not have Coſts, for it is not a perſonal wrong; for the Writ is, quod diſſeiſivit, which is a real wrong.