Reports and cases collected by the learned, Sir John Popham, knight ... ; written with his own hand in French, and now faithfully translated into English ; to which are added some remarkable cases reported by other learned pens since his death ; with an alphabeticall table, wherein may be found the principall matters contained in this booke.

CASES Reported by S^R. JOHN POPHAM Knight, Lord chief Justice of ENGLAND, In the time of Queen ELIZABETH; and written with his own hand in French, and now faithfully done into En∣glish: to which are added some remarkable CASES, Reported by other Learned, and Judicious Pens, since his death.

Fenner versus Fisher. Mich. 34. and 35. Eliz. Reginae, in the Kings Bench

IN Trespasse brought by Iustice Fenner against An∣drew Fisher, for a Trespasse done in the Parsonage house of Cravfords in the County of Kent, 30. Maij 34. of the Queen, the Defendant pleaded that one 〈…〉〈…〉 was seised of the same Messuage in his Demesne as of see, and being so seised, the 〈…〉〈…〉 day of, in the same year, did demise it to the Defendant for two years, from such a Feast then last past; by virtue of which he entred and was possessed, untill the Plaintiff claiming by colour of a Deed made of the sayd Wrigh•• where nothing passed by the Deed, upon which the Defendant entred, &c. The Plaintiff replies by protestation, that the sayd Wrigh•• was not seised as the Defendant hath alledged: And for Plea saith, that the sayd Wright did not let it to the Defendant, as the Defendant hath alledged; upon which being at Issue, and found for the Plaintif; Ackinson moved, that Iudgment ought not to be given for the plaintiff, because that he hath not made any Ti∣tle by his Replication, for by 9 E. 4. 49. In Trespasse the Defendant pleads in Bar and gives colour to the Plaintiff; it is taken for a Rule that the Plain∣tiff ought to make Title: Cook answered, that he needs not to make Title in this case, but that it sufficeth to traverse the Bar without making a Title, and sayd that in 22 E. 4. Fitzh. Trespass, It is adjudged that in Trespasse the Plain∣tiff may traverse the Bar without making Title in his Replication; and here in as much as it is acknowledged by the Defendant, that Wright did de∣mise it to the Plaintiff, and that this is a Lease ta will at the least not defeated by his own shewing, but by the Lease made to Defendant, this being tra∣versed and found against the Defendant. The Plaintiff by the acknowledg∣ment of the Defendant himself, hath a good Title against him to enter into the Land, and by it the Defendant by his Re-entry is become Trespass•••• to the Plaintiff; and he sayd, that in 2 E. 4. fol. In Trespasse, where the Defendant pleads that he let the Land to the Plaintiff for another mans life, and that he

for whose life it was, was dead, upon which he entred, and it is adjudged that it sufficeth for the Plaintiff to maintain that Cestuy & vie was yet living without making any other Title: And yet these reasons Cleoch and Gawdy held the Re∣plication good, to which Popham sayd, that we as Iustices ought not to adjudge for the Plaintif where a good & formall bar is pleaded as here it is. But wherby the Record it self which is before us, we cannot see that the Plaintiff hath good cause of Action: And therefore I agree that in Trespasse in some cases the Plaintiff may traverse the Bar, or part of it, without making any other Title then that which is acknowledged to the Plaintiff by the Bar, but this alwaies ought to be where a Title is acknowledged to the Plaintiff by the Bar, and by another means destroy by the same Bar, for there it sufficeth the Plaintiff to traverse that part of the Bar which goeth to the destruction of the Title of the Plaintiff comprised in the Bar, without making any other Title, but if hee will traverse any other part of the Bar, he cannot do it without making an es∣peciall Title to himself in his Replication, where by the Bar the first possessi∣on appeareth to be in the Defendant, because that although the Traverse there be found for the Plaintiff, yet notwithstanding by the Record in such a Case the first Possessions will yet appear to be in the Defendant, which sufficeth to maintain his Regresse upon the Plaintiff, and therefore the Court hath no matter before them in such a Case to adjudge for the Plaintiff, unlesse in cases where the Plaintiff shews a speciall Title under the Possession of the Defen∣dant; As for example, In trespasse for breaking of his Close, the Defendant pleads that J. G. was seised of it in his Demesne as of fee, and enfeoffed J. K. by virtue of which he was seised accordingly, and so being seised, enfeoffed the De∣fendant of it, by which he was seised, untill the Plaintiff claiming by calour of a Deed of Feoffment made by the sayd J. G. long before that he enfeoffed J. K. (where nothing passed by the sayd Feoffment) entred, upon which the De∣fendant did re-enter, here the Plaintiff may well traverse the Feoffment sup∣posed to be made by the sayd J. G. to the sayd I. K. without making Title, because that this Feoffment only destroies the Estate at will made by the sayd I. G. to the Plaintiff, which being destroyed he cannot enter upon the De∣fendant, albeit the Defendant cometh to the Land by Disseisin, and not by the Feoffment of the sayd I. K. for the first Possession of the Defendant is a good Title in Trespasse against the Plaintiff, if he cannot shew or maintain a Ti∣tle Paramoun••. But the Feoffment of the sayd I. G. being traversed and found for him, he hath by the acknowledgment of the Defendant himself a good Title against him, by reason of the first Estate at will acknowledged by the Defendant to be to the Plaintiff, and now not defeated: But in the same case he cannot traverse the Feoffment supposed to be made to the sayd I. K. to the Defendant, without an especiall Title made to himself; for albeit that I. K. did not enfeoff the Defendant, but that the Defendant disseised him, or that he cometh to the Land by another means, yet he hath a good Title against the Plaintiff by his first Possession, not destroyed by any Title Paramount, by any matter which appeareth by the Record, upon which the Court is to adjudge; and with this accord the opinion of 31 &. 4. 1. That the materiall matter of the Bar ought alwaies to be traversed, or other wise that which upon the plead∣ing is become to be materiall, and that which the Plaintiff traversed here, to wit, the Lease made by Wright to the Defendant is the materiall point of the Bar which destroyeth the Title Paramount acknowledged to the Plaintiff by the colour given in the Bar which is good without another Title made: So note well the diversity where in pleading in Trespasse the first Possessi∣on is acknowledged in the Plaintiff by the Bar, and where it appeareth by the pleading to be in the Defendant, and where, and by what matter the first Possession acknowledged in the Plaintiff by the Bar is avoided by the same Bar; And upon this, Iudgment was given for the Plaintiff, as appeareth in 34. and 35. Eliz. Rol.

Earl of Bedford, versus Eliz. & Anne Russell. Mich. 34. and 35. Eliz.

2. IN tho Court of Wards, the Case was thus, between the now Earl of Bed∣ford, and Elizabeth and Anne the Daughters and Heirs of John, late Lord Russell, which was put ten times to all the Iustices to be resolved: Francis late Earl of Bedford, was seised of the Mannor of Baruake Chaldon, &c. in Commitatu Dorset, in his Demesne as of see, and so seised the fourth year of Queen Eliz. of it enfeoffed the Lord S. John of Bletsoe, and others in see, to the use of himself for forty years, from the date of the sayd Deed, and after to the use of the sayd John then his second Son, and the Heirs Males of his body; and for default of such Issue, then to the use of the right Heirs of the sayd Earl the Feoffor for e∣ver: Afterwards Edward Lord Russell Son and Heir apparant to the sayd Earl dyed without Issue, and after the sayd John Lord Russell dyed without Is∣sue Male, having Issue the sayd two Daughters, afterwards to wit 27 Eliz. the sayd Francis Earl of Bedford, by Indenture made between him and the Earl of Cumberland and others in consideration of the advancement of the Heirs Males of the body of the sayd Earl, which by course of descent should or might succeed the sayd Earl, in the name and dignity of the Earldome of Bedford, and for the better establishment of his Lordships Mannors and Hereditaments, in the name and blood of the sayd Earl, covenanted and grantes with the sayd Cove∣nantees, that he and his Heirs hereafter shall stand seised of the sayd Mannors (amongst others) to the use of himself for life, without impeachment of Waste, and after his decease to the use of Francis the Lord Russell, and the Heirs Males of his body; & for default of such Issue, to the use of Sir William Russell Knight, his youngest Son, and the Heirs Males of his body, with diverse Remainders over: after which the sayd Francis, Lord Russell tyed, having Issue Edward the now Earl of Bedford, and after this the sayd Franc••s late Earl of Bedford dyed also, and after the Daughters of the sayd John Lord Russell, or the now Earl of Bedford, shall have these Mannors of Barunke, &c. was the question; and upon this it was argued by Cook, Sollinton and others, for the Daughters, that an use at Common-law, was but a confidence put in some to the benefit and behoof of others, and that Conscience was to give remedy, but for those for whose availe the confidence was, and that was in this Case, for the sayd Daughters which were the right Heirs to the sayd Francis late Earl of Bedford, upon the first con∣veyance made 41 Eliz. for the confidence that he put in the Feoffees, as to the profits that he himself was to have, was but for the forty years, and how can any other say that he shall have any other Estate, when he himself saith, that he will have it but for forty years; and therefore in this case his right Heir shall take as a Purchasor, by the intent of the Feoffor which hath power to make a disposi∣tion of the use at his pleasure, and his pleasure (as appeareth) was to have it so, and it is not as if the use had been limitted to be to himself for life with such a Remainder over, in which Case the use of the Fee by the operation of Law ought to execuse in himself for the Free-hold which was in him before: As where Land is given to one for life, the Remainder to his right Heirs, he hath a Fee-simple executed, but here he shall have but an Estate for forty years pre∣cedent, and that the Fee-simple cannot be executed by such a limitation made to the right Heirs; but in case of an Estate for years only precedent such a li∣mitation to his right Heirs afterwards is not good, but in case of an use it is o∣therwise, for it may remain to be executed, to be an use in Esse where the right Heir shall be, and therefore not to be resembled to an Estate made in Possessi∣on. And an Vse is alwaies to be guided according to that which may be colle∣cted to be the purpose and intent of the parties: And therefore if a man make an Estate of his Land without limitation of any Vse or confidence, the Law shall say that it is to his own use, but if it be upon confidence then it shall be to

the Vse of the party to whom it is made, or according to the confidence which sh••ll be absolute, or according to that which is limitted, which may alter that which otherwise shall be taken upon the generall confidence, as 30 H. 6. Fitz. Devise, If a man devise Lands to another in Fee, he hath the use and Title of it, but if it be limitted to his use for his life only, the use of the Fee shall be to the Heir of the Devisor, for by the limitation his intent shall be taken to be o∣therwise, then it should be taken if this limitation had not been; and in as much as in this case the Earl reserves to himself but the use for years, it is evident that his intent never was to have the Fee, to surrender this Term, which per∣haps he intended to be for the benefit of his will, which shall be defeated con∣trary to his purpose, if the Fee shall be also in him by the death of the sayd Iohn, without Issue Male, and therefore the sayd Daughters ought to have the Land. And on the other part it was argued by Glanvil: Serjeant, and Egerton the At∣torney Generall, that this limitation made to the right Heirs, is void in the same manner, as if a man give Lands to another for life, the Remainder to the right Heirs of the Feoffor, in this case the Heir shall take by descent as a Re∣version remaining to the Feoffor, and not as a Remainder devested out of him, for the ancient right priviledge the Estate which he may take, and therfore he shall take it by descent and not by purchase; for the name of right Heir is not a name of purchase betwixt the Ancestor and his heir, because that doth instance that he happeneth to be heir, he takes it by descent, and then it comes too late to take by purchase; And another reason that the Daughters shall not have it is, because that when Sir Iohn Russell dies without Issue Male, which Estate might have preserved the Remainder, if it shall be a Remainder, there was not any right heir of the sayd Francis Earl of Bedford to take this Remainder, because that the sayd Earl survived him: And therefore it is to bee resembled to this Case; Land is given in Tail, the Remainder to the right Heirs of I. G. the Donee dyes without Issue in the life of I. G. in this case, albeit I. G. dyes afterwards having an heir, yet this heir shall never have the Loud, because he was not heir in Esse to take it when the Remainder fell, and for the mean Estate for years this cannot preserve a Remainder, no more then when Land is given for years, the Remainder to the right heirs of I. G. this Remainder can never be good if I. G. be then living, because such a Remain∣der cannot depend but upon a Free-hold precedent at least, and therefore the Inheritance here shall go to the now Earl of Bedford by the second assurance. And upon consideration of the Case and severall Confirmes had upon this a∣mongst the Iudges and Barens, it was at last resolved by all (but Baron Clarke) that the Daughters shall not have the Mannors in the County of Do••set, but the now Earl of Bedford, and principally upon this reason, because there was nor right Heir to take as Purchasor where the mean Estate Taile was determined, which was by the Lord Iohn, without Issue Male, for they a∣greed that the Remainder to the right Heirs if it be a Remainder cannot be preserved by the mean Estate for years, for it ought to be a Free-hold at least which ought to preserve such a Remainder, untill there be one to take it by name of Purchasor as right Heir. And at this day they did not think there was any diversity between the Case of a Remainder in Possession limitted to the right heir of one, and of a Remainder in use so limited over to another.

Mich. 34. and 35. Eliz: In the Kings Bench.

3. IN Ejectione firmae upon speciall verdict the case was thus, A man posses∣sed of a Term of years in right of his wife, made a Lease for years of the same Land to begin after his death which was the Lessor, and afterwards he dy∣ed and his wife survived him, and the question was, whether the wife shall have the Land after the death of the husband, or the Lessee, for if the husband had de∣vised

the same Land to an estranger, yet the Wife shall have it and not the Devisee, as it happened in the Case of Matthew Smith, who made first such a Devise of a Term of his Wife, and yet the Wife had it; because that by the death of the husband (before which the Devise did not take effect) the wife had it in her first Right not altered in the life of her Husband; but it was a∣greed in this case by all the Court, that the Lessee shall have it during his Term, for as the husband during his life might contract for the Land for the whole term which the wife had in it, so might he do for any part of the term at his pleasure, for if he may devise the Land for one and twenty years to be∣gin presently, he also may make it to begin at any time to come after his Death, if the term of the Wife be not expired, but for the Remainder of the term of the husband, made no disposition during his life, the Wife shall have it, which by Popham this Case happened upon a specialll Verdict in the County of Somerset, about 20 Eli. Where he and Sergeant Baber were Pra∣ctisers in the Circuit there, to wit, the Lands were demised to husband and wife for their lives, the Remainder to the Survivor of them for years, the Husband granted over this term of years and dyed, and the question was whether the Wife shall have the term of years or the Grantee, and adjudged that the Wife shall have it, and it was upon this reason, because there was nothing in the one or the other to grant over, untill there was a Survivor: And the same Law had been if the Wife bad dyed after the Grant, and the Husband had survived, yet he shall have the term against his own Grant; as if a Lease were made for Life, the Remainder for years to him which first cometh to Pauls, if A. grant this Term for years to another, and afterwards A. is the first which commeth to Pauls, yet the Grantee shall not have this Term because it was not in A. by any means neither in Interest nor other∣wise untill he came to Pauls: As if a man make a Lease for life, the Re∣mainder to the Right heirs of J. S. J. S. hath Issue a Son which selleth this Remainder, and afterwards I. S. dyed, this Son being his Heir notwithstan∣ding his Sale, he shall have this Remainder & not his Grantee, because it was not in him at the time of his Grant, but by a matter which cometh, Ex post facto, to wit the death of his Father, and afterwards Iudgment was given in the first case, that the Grantee shal have the term granted to him by the Hus∣band, and that the Wife shall not have the term during this Leese

Hunt Versus Gateler. Mich. 34. and 35 Eliz. in Commun. Banco.

IN a Replevin between Hunt Plaintiff, and Gateler Avowant in the Com∣mon Pleas, which was adjorned for difficulty into the Exchequer Chamber, the Case was thus, Tenant in tail, Remainder in Fee, he in Remainder in Fee grants a Rent-charge in Fee out of the same Land, to begin after the E∣state tail determined, Tenant in Tail suffer a common Recovery with a Voucher over, to the use of the sayd Hunt in Fee, and dyed without Issue in∣heritable to the intail, and whether Hunt shall now hold the Land charged with the Rent, was the question; and after that it had long depended, and was many times argued in the Common Pleas, and Exchequer Chamber, at Hertford Term it was at last resolved by all the Iustices and Barons unani∣mously, that the sayd Rent charge wss gone by the Recovery, although the Estate tail was expired, because that he which is in, is in under this Intail: And therefore Popham sayd, suppose th••t the Tenant in tail himself before the Recovery had granted a Rent charge out of the same Land, or had made a Lease for yeers, or had acknowledged a Statute, all those had been good, and to be executed against him which cometh in under the Recovery, notwithstan∣ding that the Estate tayl had been determined for want of an heir inheritable

to the intail, for he which recovereth cannot lay that he against whom he recovered had but an Estate in tail, and if his Lease remain yet good (as all agreed it did) how can the Lease, a Rent granted by him in the Remain∣der, be good also, for the one and the other cannot stand together, and there∣fore all the Leases, Charges, or Statutes acknowledged or made by him in the Remainder, are gon and avoided by the Recovery had against Tenant in tail. To which opinion all the other agreed, and Popham sayd further, That he in the Remainder upon an Estate tail, cannot by any means plead to defend his Remainder, unless the Tenant will as by vouching of him, and therefore shall be bound by the Act of Tenant in Tail, where the Estate it self is bound as here it is by the Voucher, and then they which come in by him in the Remainder by way of Lease, Charge, or Statute, (which are not so much favoured in Law as Tenant in tail himself) be in better con∣dition then he in the Remainder himself is; for he in the Remainder upon an Estate tail cannot put more into the Mouth of the Lessee or Grantee to de∣fend their Estates, then he himself could have to defend his Remainder, and this is the reason that such a Termer or Grantee shall never falsifie the Re∣covery had against Tenant in tail, as the Grantee or Termer shall do which cometh in under Tenant in tail against whom the Recovery was had, for there as the Tenant in tail may plead to defend his Possession and Estate, so may his Termer or Grantee of a Rentcharge do, for by the Demise or Grant made, the Tenant in tail hath put all the Pleas into their mouthes for their Interests which he himself had to defend his Right and Possession, which they may plead for the time to defend their Possessions and Rights as well as the Tenant in tail himself may do, and this is the reason that such may falsifie Recoveries against their Lessors or Grantors, if they be not had upon the meer right Paramount, which he that cometh in by such a Re∣mainder as before cannot do, for such a one in Remainder cannot be received to defend his Right, but his mouth is meerly foreclosed to do it, and by the same reason are all those which come in by such men foreclosed to defend their Interests or Estates, and upon this Audgement was given in the same Tearm in the common Pleas.

Gibbons versus Maltyard and Martin.

IN an Ejectione firmae, brought in the Kings Bench by John Gibbons Plaintiff, upon a Demise made by Edward Peacock the Son, of Lands in Croxton, in the County of Norfolk, against Thomas Maltyard and John Mar∣tin, upon a speciall verdict, the case appeared to be thus, to wit, that Sir Ri∣chard Fulmerston Knight, was seised of the sayd Lands (amongst others) holden in soccage in his Demesne as of Fee, and being so seised by his last Will in Writing, made 9 Eliz. Ordained that a Devise shall be made by his Executors that a Preacher shall be found for ever to preach the Word of God in the Church of Saint Maries in Thetford, four times in the year, and to have for his Labour ten shillings for every Sermon. And further he de∣vised to his Executors and their heirs certaine Lands and Tenements in Thetford aforesaid to this intent; and upon this condition, that they or the Survivor of them within seven years after his decease, should procure of the Queens Highness to erect a free Grammar School in Thetford for ever to be had and kept in a house by them to be erected upon part of the sayd Land, & that they shal assure three of the said ienements for the house and Chamber of the Schoolmaster and Vsher, and their Successors for ever, and for the other to∣nement, that they shall make an assurance of it for the Habitation of font poor people (two men and two women) for ever. And for the better maintenance of the sayd Preacher, Schoolmaster, Vsher, and Poore people,

he devised (amongst others) his sayd tenements in Croxton to his Execu∣tors for ten years for the performance of his Will, and after this he devised them to Sir Edward Cleer, and Frances his Wife (the Daughter and Heir of the sayd Sir Richard, and to the Heirs of the sayd Sir Edward, upon Condition, that if the sayd Sir Edward his Heires or Assignes, before the end of the sayd ten years shall assure Lands or Tenements in possession to the value of five and thirty pounds a year, to the sayd Executors or the Survivor of them, their Heirs and Assignes, or to such persons their heirs or Successors as his sayd Executors or the Survivor of them shall name or assigne for and towards the maintenance of the sayd Preacher, Schoolmaster, and Vsher, in the sayd School house, &c. and for the releif of the sayd poor people in the one of the sayd houses, according to the Ordinance as he himself in the sayd Will had declared, or otherwise as by his Executors or the Survivor of them shall be prescribed. And if the sayd Sir Edward and his Heirs shall make default in the assurance of the sayd Land by him to be assured as aforesayd, then hee will that immediatly upon such default, his Estate, and the Estate of the sayd Frances shall cease in the sayd Lands in Croxton, &c. and then he devise the same Lands to his Executors and their Heirs for ever to the use of them and their heirs upon trust and confidence that they or the Survivor of them and their Heirs shall assure the same, or o∣therwise yearly dispose the profits of them in finding the sayd Preacher and o∣ther charitable works as aforesayd and made Edward Peacock Father to the Lessor, (whose Heir the Lessor is) and others his Executors, and dyed 9. of the Queen, after whose Death all the Executors refuse to be Executors. The seven years passe without the establishing of the School, and other things according to the Will for the first part of it, whereby the Land in Thetford was forfeited to the heir for the Condition broken, and within the ten years Sir Edward Cleer made a Feoffment of Land to the value of 35. l. a year to the surviving Executor, for the use of the School, but with acondition contrary to the Will, and no Livery wa•• made upon the sayd Feoffment, but it was inrolled of Record in the Chancery, whereby the sayd Sir Edward had bro∣ken the Condition annexed to his Estate, and also during all this time neither the Executors nor their Heirs had done any thing in finding the Preacher or the other works of charity with the profits of the sayd Lands in Croxton, or in assuring of it according to the Will, and yet the sayd Edward Peacock the Son in September 32. Eliz. being Heir to the surviving Exe∣cutor, entred into the Land in Croxton, and demised it to the Plaintiff for seven years, upon which the Defendant as Servant, and by the commande∣ment of Sir Edward Cleer, and of Edmund the Son and Heir of the sayd Fran∣ces (who was then dead) entred, upon which entry and Efectment the A∣ction was brought, and it was mooved by Godfrey and others that the entry of the Defendants was lawfull, first in the right of the sayd Sir Edward, be∣cause that his Estate by the Statute of 23. H. 8. cap. was without con∣dition, or determined; because that by this Statute all the uses limited in such a manner are made void, because they are in the nature of a Mortmain, as may appear by a Proviso at the end of the same Statute for a certain person of Norwich who had Devised Lands for the case of the poor Inhabitants of the same Citty, in Taxes and Tallages, and for cleansing of streets there and for discharge of toll, and Custome within the City, all which were good uses, and not tending to Superstition, and yet if it had not been for the Pro∣viso they had been gon by the body of the Statute: And the Statute ordained also, that every penalty and thing which shall be devised to defraud this Sta∣tute shall be void; and if this do not help them, yet the Entry made in the right of the sayd Heir, of Sir Richard Fulmerston, is good; for the estates of the sayd Executors are also bound as with a tacite condition that these things shall be performed which are not done, and therefore the entry in right of the

heir is lawfull, for the words Ad propositum, ea intentione, and the like in a Will are good Conditions which Gaudey agreed, & vouched the case 28. Sess. Pl. but it was after often argument agreed by all the Court that the first exception was to no purpose, for they conceived that this Statute was to be taken to extend only to the uses which tend to Superstition, as might be col∣lected as well by the words of it in the very body of the Act at the beginning, as by the time in which it was made, for at this time they began to have re∣spect to the ruine of the authority of the Pope, and to the dissolution of the Abbies, Chantries, and the like: And by Popham, the Proviso was put in the Statute, but for satisfaction of the Burgesses of the same City at this time, and not for any necessity as oftentimes it happens. And for the other point, he sayd, that it appeareth fully by the Will that it was not the intent of the sayd Sir Richard to have the Land in Croxton bound with any condition in the possession of his Executors, or with any other matter which determine their Estate, for the Words, that they shall have it upon trust and confidence, exclude all constraint which is in every condition, and the Will is, that they shall have it to the use of themselves and their Heirs for ever, which c••nnot be if it shall be abridged by any Limitation or Determination: And he sayd, that the Lord Anderson demanded of him a Case which was adiudged in the Common Pleas 29. Eliz. Rot. 639. which was thus, One Michel made a Lease for years rendring Rent, and for default of payment a re-entry with Covenants on the part of the Lessee to repair the Messuages, &c. and the term continuing the sayd Michel, by his Will in Writing, devised the same Land to the sayd Lessee for more years then hee had to come in it, rendring yearly the like Rent, and under the same Covenants which he now holds it, and dyed, and afterwards the first term expired, the Lessee does not repaire the Houses, and the question was, whether by this he hath forfeited his term, and adjudged that as to this it was not any condition, and a Covenant it could not be, for a Covenant ought alwaies to come on the part of the Lessee him∣self, which cannot be this case, for he doth not speak any thing in the Will to bind him, but they are all the words of the Devisor himself which comprised in a Will, and it never was his intent to have it to be a condition, and therefore void as to the Lessee to bind him either by way of Covenant or Condition, so here, &c. And for the sayd Feoffment enrolled without Live∣ry, it was agreed by all, that it was not of any force to make the Land to passe to the Executors, but the enrolment conclude him to say not his Deed▪ And also that the Executors refuse to be Executors, this shall not hinder them to take by Devise as to the Inheritance, whereupon it was adjudged that the Plaintiff shall recover as appears.

Thomson Versus Trafford. Hillary Term 35 of Queen E••izabeth.

IN an Ejectione firmae, between John Thomson Plaintiff▪ and Thoma•• Trafford Defendant, the case was thus, The President and Schollers of Magdelen Colledge in Oxford, 20 Decemb. 8. Eliz Did let a Messuage u•• the Burrough of Southwark, to which no Land appertained to William Sta••∣dish for twenty years, from the Feast of Saint Michael next ensuing, ren∣dring the ancient Rent, and 25. Octob. 21. Eliz: they did let the same Mes∣suage to the same Standish for twenty years from the Feast of Saint Michae•• then next ensuing, rendring also the ancient Rent, and 31 August 30. Eliz. The President and Schollers made a new Lease of the same Messuage to Sir George Carew Knight, for twenty years from making of the Lease ren∣dring the ancient Rent, which Lease was conveyed by mean Assignments to the Plaintiff, upon which the Action was brought against the sayd Trafford

which had the Interest of the sayd Standish by mean Assignments: Popham said, that Ipso facto upon the last Lease made, and annexed by Standish, the first Leass was determined and gone, for this last contract dissolves the first when the one and the other cannot stand together, as they cannot here, be∣cause the one intermix with the other, and so was the opinion in the Com∣mon Bench about 1 Eliz. in the case of the Abby of Barking, of which I have seen a Report.

And here Standish before Michaelmas, next after the second Lease made to him could not grant over his first term to be good to the Grantee, for if this should be, the second term shall not be good to Standish; but for the remnant of the years after, the first term finished, which cannot be be∣cause it standeth in the power of the Grantor with the assent and acceptance of the Grantee to make the second Grant good, for the whole term, to wit, from Michaelmas, and this cannot be but by a determination in Law of the first term immediatly, which is made by his own acceptance, and therefore a prejudice to none but himself, and Volenti non fit injuria, and the first Term cannot have his continuance untill Mich. but is gone presently by the accep∣tance of the second Lease in the whole, for the first contract which was entyre cannot be so dissolved in part, but in the whole, as to that which the party hath, and therefore the first Term (as the case is here) is gone in the whole, to which Clench and Gaudy agreed: And if so then this last Lease to Standish was but as a Lease made to begin at a time to come, which is made good by the Stat. of 14 Eliz. if it do not exceed the time of 40 years from the making of the Lease; for the purpose of this Act was, that Colledges and the like shall not make Grants in Reversion, albeit it be for a year, and the reason was, be∣cause that by such Grants in Reversion they shall be excluded to have their Rent of the particular Tenants for the time: And therfore in the case of the Countesse of Sussex, who had a Ioynture assured to her for her life by Act of Parliament, with a Provise, that the Earle her Husband might demise it for one and twenty yeares, rendring the usuall Rent, where the sayd Earle had made a Lease for one and twentie yeares, according to the Statute, within a yeare before the end of the same Lease, the said Earle made a new Lease of the same Land to Wroth his Servant for one and twentie yeares, to begin after the end of the former Lease, rendring the usuall Rent, and died, the said Countesse avoided this last Lease by Iudgement given in this Court, because it shall be intended to be a Lease in Possession, which he ought to make by the Proviso, from the time of the making of it, otherwise by such perverse construction, the true intent of the Statute shall be utterly defrauded. But here to make a Lease for twentie yeares to one in Possession, and to make another Lease to another for twentie yeares, to begin after the end of the former Lease, is good, because that the one and the other do not exceed the fortie yeares comprised in the Statute.

And the Iustices of the Common Bench the same day at Sergeants Inn agreed to the opinion of Popham for the determination of the whole first Term, by the taking of the second Term by Standish.

Ward versus Downing.

2. IN an Ejectione firmae brought by Miles Word against Robert Downing, the case was thus; O••e Robert Brown was seised of certain Lands in in the County of Norfolk, in his Demesne as of Fee (which were of the nature of Gavelkin••) and had Issue George his eldest Son, Wil∣liam his middlemost Son, and Thomas his youngest Son, and being so seised 6 Decem. 1559. made his Testament in writing, by which he devised the sayd Tenements in these words.

Item, I give unto Alice my wife the use and occupation of all my Houses and Lands, as well free, as copy-hold, during her naturall life.

Item, I will, that George my Son shall have after the decease of his Mo∣ther all those my Houses and Lands, wherof the use was given to his sayd Mother for the term of her life, To have and to hold to him and his Heirs for ever, and if the sayd George dye without Issue of his body lawfully be∣gotten, then I will my sayd Lands shall in like manner remain unto Willi∣am my Son and his Heirs for ever. And I will that all such money as shall be payd of any Legacy by the sayd George, shall be allowed by the sayd Wil∣liam, to whom the sayd George shall appoint.

Item, I will, that if the sayd George and William depart the world before they have Issue of their bodies lawfully: Then I will that all my sayd Houses and Lands shall remain unto Thomas my Son and to his Heirs for e∣ver.

Item, That if the sayd George shall enjoy my sayd Houses and Lands, then I will the sayd George shall pay out of the sayd Lands to William and Tho∣mas his Brother 26 l. 13 s. 4 d. that is to say, at his first entry into the sayd Lands, to pay unto the sayd William his Brother 40 s. and so to pay yearly untill the summ of 13 l 6 s. 8 d. be fully answered and payd, and then im∣mediatly to pay unto Thomas his Brother 13 l 6 s. 8 d. to be payd unto the sayd Thomas, when the sayd William shall be fully answered by 40 s. a year, in like proportion as is aforesayd: And if my sayd Son George sh••ll refuse to pay unto William and Thomas his Brother the summs of 26 l 13 s. 4 d in manner and form as is before limitted; Then I will that all my Houses Lands and Tenements with the Appurtenances remain to Will••am my Son and his Heirs for ever, paying therfore 26 l. 13 s. 4 d. viz. 13 l. 6 s. 8 d. to George my Son, and 13 l. 6 s. 8 d. to Thomas my Son, in such manner and sort as the sayd George shall pay if he should enjoy the sayd Lands: And if it fortune the sayd William to enjoy the sayd Lands, then the sayd William sh••ll pay unto Thomas his Brother the whole summ of 26 l. 13 s. 4 d. as is ••fore∣sayd. After which the sayd Robert dyed seised of the s••yd Tenements in que∣stion, and his sayd wife entred into them for her life by virtue of the sayd Will, in whose life time the sayd George dyed without Issue, after which the sayd Thomas also, to wit, 9 Dec. 1576. made his Testament in writing, and of this made Mary his wife his Executrix, and dyed, having Issue Mar∣tha by the s••yd Mary: Afterwards the sayd Alice the wife of the D••visor, t••e l••st of March. ••2 Eliz. dyed, and after her death, to wit, the first of May 32 Eliz. the sayd William entred into the sayd Tenements, and was therof seised in his Demesne as of Fee-tail, and the sayd Mary in the life-time of the sayd Alice proved the Testament of the sayd Thomas Brown, and the sayd William did not pay the sayd 26 l 13 s. 4 d. to the sayd Mary, nor any part therof according to the Will, and the sayd Martha being Daughter and Heir of the said Thomas therupon entred into the sayd Tenements, and did let the sayd Moyety of which the sayd Action was brought to the sayd Ward for two years, upon which the sayd Downing in the right and by the command∣ment of the sayd William re-entred, and expelled the sayd Plaintiff bu•• the

conclusion of the Verdict was not upon the expulsion, but only if the entry of the sayd Downing shall be adjudged lawfull, then they find the Defendant not guilty, and if it were not lawfull, then they find him guilty.

Fennor, the Estate of the sayd William is conditional by the Will, to wit, that he shall pay to Thomas the 40 Marks, according to the Will, because the Will is, that the sayd money shall be payd as is aforesaid, or before the sayd moneys which were to be payd, was expresly limitted to be payd upon the forfeiture of his Estate: And further if it shall not be taken for a Condi∣tion, then Thomas hath no remedy for the money to be payd to him; and al∣though it be limitted to be payd but to Thomas, who was dead before the day of payment of it, yet it shall be taken as a duty limited to him which shall be paid to his Executors, because that a time certain is limited for the payment of it, to wit, when the Land is come to the sayd William, which is, by the death of the sayd Alice, but if no time had been limitted for the payment of it, and they had died before the payment of it, it had been otherwise; And it be∣ing a condition in William, albeit it descend upon him, as well upon him as upon the Heir of the sayd Thomas, yet it remains a good Condition for the part of the Heir of the sayd Thomas, not determined by the descent of the other part upon the Heir of the sayd William.

And further he sayd, that here the Condition shall not be sayd to be broken, but upon refusall of payment by the sayd William, as in the case of George to whom it refers by the words (as is aforesaid) which refusall is not found, and therfore the Plaintiff shall be barred.

Clench, The Executors of the said Thomas know not when, nor at what place to demand it, and therfore he thinks that the said William ought to have tendred the money to the said Executrix at his perill.

Popham, The payment limited to be made by the said George is at his first entry after the death of Alice, and then to pay 40 s. and so yearly untill 40 Marks are paid to the sayd William, and therupon 40 s. yearly to the sayd Thomas, untill other twenty Marks are paid to him; so that this is the form of the payment, to wit, at his entry, as well for the place as the time, for it cannot be made at his entry, unless upon the Land it self, and therfore by the purport of the Wil, the Land shall be taken for the place where the payment ought to be made, for avoiding the inconvenience which otherwise will en∣sue; As if I am bound to pay to you 20 l. upon your first coming to such a place, this place shall be taken for the place where the payment shall be made. And wheras it is said further in the Will, and so to pay yearly 40 s. untill the twenty Marks are paid to William, this payment also by the words (and so to pay yearly, &c.) shall be at the same place at the end of every year, up∣on the next day after the end of it, or otherwise there will be no certainty when it shall be paid, and therfore the first day of every year shall be the very day of payment, and this also by virtue of the said words (and so yearly) And at the last day of payment by George to William, or Thomas there ought to be paid but 26 s. 8 d. because that then there remains no more to be paid of the summs limited to be paid to them; And when the Will here hath finish∣ed with George for that which he is to pay, it goes further, and if he refuseth to pay the said summs to William and Thomas, in manner and form aforesaid, then he wils that all the said Lands shall remain to the said William and his Heirs for ever, paying yearly, &c. and so there is an express penalty to George if he refuse to make payment, to wit, that he shall loose the Land for default of payment made by George by the word (paying) annexed to the Estate which is a Condition, but he conceived that this last payment to be made to Thomas, is not to be made upon any penalty, nor that a Condition is to be implyed in it, although Thomas hath no remedy for it, but in consci∣ence, because it is a meer confidence put in William to pay it: And he said, that he was the rather moved to be of this opinion, because every one of the

precedent Limitations was with an expresse Condition annexed to them, as to George, if he refuse, &c. But when William is to have but an Estate-tail upon the determination of the Estate made to George, for default of Issue there he saith nothing, but that the said William shall pay to the said Tho∣mas fortie Marks, as is aforesaid, which is but a declaration of his intent, that he put confidence in him for the payment of it, and did not bind himself upon condition, as in the other cases, which he might have done by expresse words of condition, if his intent had been so, as well as he did in the other cases, if his purpose had been so; and the words, that he shall pay, as is afore∣said, is to be understood for the place and time when it shall be paid, accord∣ing as George ought to pay it: And it doth not seem to stand with reason, to expound it, for a Condition to destroy the Remainder limited to the said Thomas; but if it shall be a Condition upon a relation, because of the words, that he shall pay it, as aforesaid mentioned, that the payment ought to be paid to the Executor of the said Thomas, albeit he died before the day of pay∣ment, because this was a summ in grosse limited to be paid to the said Tho∣mas at a certain time. But if it shall be taken for a Condition in William, he thinks cleerly that the said William ought to have given notice to the Exe∣cutrix of the said Thomas before he had made his first entry into the Land of the Ten. when he intended to make his entry, so that the Executrix might be there at the same time to have made demand of the money, which ought to have been done, or otherwise there cannot be a refusall in the said William, and without his refusall or other default in him, the Condition cannot be bro∣ken, if it had such a relation as to make the payment as George ought to do it: And so the Executor of Thomas cannot have notice when William will make his first entry into the Land, if he do not give him notice of it, and therfore if it shall be a Condition it had been broken on the part of William, for want of giving notice to the Executor of the time of his first entry, wher∣by the Executor might have notice of the time to make his demand, because without a demand refusall cannot be, and the Executor is excused to make demand when he had no notice of the time, and therfore the default of Wil∣liam in not giving notice of it shall be taken against him as strongly as if he had made a refusall to pay upon demand; for if notice had been given to the Executor, and he had demanded the money, and William had said nothing to it, but omitted to pay it, yet this shall be a refusall in Law.

But of this nothing appeareth in the Verdict, whether the Executor had no∣tice given to him or not, nor nothing mentioned in the Verdict whether any demand or refusall was made of the money or not, and therfore the Verdict as to these points is incertain to judge upon, whether it shall be taken to be a Condition in William: But it seems as the Verdict is, that Iudgment ought to be given against the Plaintiff, for the conclusion of the Verdict is upon the entry of the Defendant, whether this be lawfull or not, and not upon the expulsion, or whether upon the other Moyetie his entry was lawfull in right of the said William, because they were Tenants in Common.

3. IN Trespasse of Assault, Battery, and Imprisonment, made such a day at in the Countie of Cornwall, brought by against: The Defendant saith, that he was Constable of the same Town, and that the Plaintiff the said day, year, and place, brought an Infant not above the age of ten daies in his armes, and left him upon the ground to the great disturuance of the people there being, and that he com∣manded the Plaintiff to take up the said Infant, and to carry it from them with him, which the Plaintiff refused to do, for which cause he quietly laid his hands upon the Plaintiff and committed him to the Stocks in the same Town, where he continued for such a time, untill he agreed to take up the In∣fant again, which is the same Assault, Battery, and Imprisonment, of

which the Plaintiff complains, upon which the Plaintiff demurred. Fennor was of opinion that that, which the Constable did was lawfull, and that it is hard that an Officer shall be so drawn in question for it, for this shall be an utter discouragement to good Officers to execute their Offices as they ought to do. Popham, A Constable is one of the most ancient Officers in the Realm for the conservation of the Peace, and by his Office he is a Conservator of the Peace; and if he sees any breaking of the Peace, he may take and im∣prisen him untill he find surety by obligation to keep the Peace: And if a man in fury be purposed to kill, maime, or beat another; the Constable see∣ing it, may arrest and imprison him untill his rage be passed, for the conser∣vation of the Peace. And if a man layes an Infant which cannot help it self upon a Dunghill, or openly in the field, so that the Beasts or Fouls may destroy it, the Constable seeing it may commit the party so doing, to Pri∣son, for what greater breach of the Peace can there be then to put such an Infant by such means in danger of its life? And what diversity is there be∣tween this case and the case in question, for no body was bound by the Law to take up the Infant but he which brought it thither, and by such means the Infant might perish, the default therof was in the Plaintiff, and therfore the Action will not lye: And therupon it was agreed that the Plaintiff take nothing by his Writ.

Hayes versus Allen.

4. TErm. Pasch. 33 Eliz. Rot. 1308. A Cui in vita was brought in the Com∣mon Pleas, by Ralph Hayes against William Allen, of a Messuage with the Appurtenances in St. Dunstans in the East, London, in which it was sup∣posed that the said Wil. had no entry, but after the demise which John Bradley, late husband to Anne Bradley, Aunt of the said Ralph (whose heir the said Ral: was) made to Tho. Allen and Jo. Allen, and counts accordingly, & shews how Cosin and Heir, to wit, Son of Wil. brother of the said Anne, Wil. Allen tra∣verse the Demise made to the said Tho. and Jo. Allen, and at Nisi prius it was found, that the said Jo. Bradley and Anne his wife was seised in their demesn as of fee, in right of the said Ann, of a Messuage in S. Dunstans aforesaid, con∣taining from the North to the South 18 foot, and from East to West 12 foot and a half, and being so seised during their Marriage, by their Deed, sealed with their Seals, enfeoffed the said Tho. Allen and Jo. Allen therof, to hold to them and their heirs, to the use of the said Jo. Bradley and Anne his wife for their lives, and afterwards to the use of the Church-wardens of S. Dunstans, Lond. and of their successors for ever, to the use of the poor of the same place, and that Livery was made accordingly, and that the said Deed was inrolled in the Chancery at Westm. and that afterwards the said Anne died, and that Jo. Bradley survived her & died, and that the right of the said Mess. descended to the said Ra. as cosin and heir of the said A. And that Sir W. Allen K. was sei∣sed of a peece of land in S. Dunst. aforesaid, containing 6 foot 4 inches contigi∣ous and adjacent to the said Mess. late the said Jo. Bradleys and A. his wife, in his demesn as of fee; And that the said Sir Wil. after the said feoffment, and before this Writ purchased, utterly drew away the said Messuage, late the said John Bradleys and Ann his wife, and drected a new house upon the Land of the said Sir William, and upon part of the Land upon which the other house stood, containing from the North to the South thirteen foot, & from the East to the West eighteen foot ten inches, which Messuage so newly built, stood the day of the Writ purchased, and yet stands. &c. And if upon the whole mat∣ter the said Demise of the said John Bradley and Anne be, and in Law ought to be adjudged the Demise of the said Messuage, newly built upon the said part of land, where the Messuage of the said John Bradley and Anne stood, then, the Iury find that the said John Bradley demised to the said Thomas and Iohn Allen the said house newly erected as aforesaid, as the Plaintiff hath al∣ledged, and if not, then they find that he did not demise.

And upon this Verdict Iudgment was given there, and an especiall Writ of Habere facias seisinam awarded of the said Messuage, with the Appurte∣nances; viz. 18 foot of it from the North to the South, and 12 foot and an half of it from the East to the West; upon which a Writ of Error being brought in the Kings Bench, it was alledged for Eror by Coke Sollicitor that upon this Verdict Iudgment ought to have been given for the Tenant, and not for the Demandant, for what was remaining of that which was of the house, is not a house, but only a peece of a house, and therfore it ought to have been demanded by the name of a peece of Land, containing so much one way, and so much another; for a house wasted and utterly drawn away, can∣not be demanded by a Messuage, but by the name of a Curtilage, or so much Land of such contents; for a Praecipe lies of a peece of Land containing so many feet in length, and so many in breadth: And also Land built during the possession of him which hath it by Tort, cannot be demanded by the name of Land by him which hath right, but by the name of a house, nor e contra, for every demand of Land ought to be made according to the nature of which it is at the time of the Action brought, be it a Messuage, Land, Meadow, Pasture, Wood, &c. And if the Walls of a house be made upon the Land without any covering, yet it shall be demanded but by the name of Land; for he said, that it cannot be a house without its perfection to be habitable, which he said is not here, because it stands upon the Land of the said Anne, which hath not the perfection of a house habitable without the remnant. But this notwithstanding the first Iudgment, was affirmed; for it was said by Pop∣ham, and other Iustices, that, that which is erected upon the Land of the said Anne, shal be said a house as to the right of the Heir of the said Anne, for a house may be such to be demanded by the name of a house, albeit it hath not all the perfection of a house, as if it hath no doors, so if it hath part of the side wals not made, drawn away, or fallen, yet the remainder continues to be demand∣ed by the name of an house; so if part of the covering be decayed, yet it shall be demanded by the name of an house, and the rather here, because with that which is upon the other Land it is a perfect house; And I may have a perfect house although the side Walls belong to another: as in London, where a man joynes his house to the side walls of his Neighbours, he hath a perfect house, and yet the side walls belong to another, and this commonly happens in London, but it is otherwise if it were never covered, or if the covering be utterly fallen, or drawn away, for without a covering a house cannot be said to be a house, for the covering to keep a man from the Storms and Tempests over head, is the principall thing belonging to a house.

And further, suppose that a man hath a Kitchin, or a Hall upon Land, to which another hath right, he which hath right ought to demand it by the name of a house: suppose then that there is adjoyning to this upon other land a Parlor, a Buttery, a Shop, a Closet, and the like, with Chambers over them, this doth not change the form of the Writ that he is to have which hath right, although before it was built by the name of a house, and yet as to the rent both the one and the other was but a house, but as to the demandant it is otherwise, for they are severall, so here: And the Demise which before was made of the house drawn away, shall be now upon the matter a Demise, as to this part of it a new Messuage; for if a man make a Lease for years of a house, and the Tetmor pull it down, and erect there a new house, or if land be demised, and the Lessee build a house upon it, in an Action of Wast, for Wast done in this new house, the Writ shall suppose that he did wast in the Houses, &c. which were demised to him, and yet in the one case it is not the Messuage which was demised to him, and in the other the house was not de∣mised, but the Land only; But he hath no term in the house but by the De∣mise before made: And it seems to Popham, that Allen the Defendant can∣not pull down this part of the house erect upon his own land to the prejudice

of the house which Hayes demands, if this which is erected upon the land of Allen be of such a necessity, that without it the house of Hayes cannot stand for a house; but if he dies after that Hayes hath built it, then Hayes shall have an Action upon the case against him for the damages which he sustained by it: As if a man agree with me that I shall set the outer wall of my house up∣on his land, and I do it accordingly, and afterwards the party which grants me this licence, breaketh it down, if the Grant were by Deed I shall have an Action of Covenant for it, and if but by Paroll, yet I shall have an Action up∣on the case against him. And here this being done by him which was then Owner and Possessor of the one and the other land, it shall be taken as a li∣cence in Law, to the benefit of him which hath right, which he cannot pull down after it is once made, but he shall be subject to Hayes his Action for it, or otherwise Hayes shall be at great mischief and prejudice by the Act of him which did the wrong, which the Law will not suffer, but rather shall turn this to the prejudice of him which did the wrong, then to the prejudice of the other which shall have wrong by the doing of it; for Volenti non fit injuria, As if I am to inclose between my Neighbour and my self, and my Neigh∣bour pull down this inclosure or part of it, wherby my Cattell escape into the land adjoyning, and depasture there, I shall be excused of this Trespasse in the same manner as if he had licenced me to have occupied it, and whatsoe∣ver hapneth to this Land adjoyning by my Neighbours means, shall be in the same degree as my Neighbours Act, for what he does shall be to his own pre∣judice.

And upon the Iudgment affirmed, the Attorney of the said Hayes made the like Writ of Habere facias seisinam, directed to the Sheriffs of London, as was done in the Common Pleas, wherupon it was affirmed to the Court in Hillary Term next ensuing, that the Sheriffs had made their execution by the quantity of the feet comprised in the writ, and that in the doing of it there was pulled down the part of another house of the said Allen which was erect∣ed two feet upon the land of the said Anne, and prayed remedy for it, and that this Habere facias seisinam varying from the thing recovered, might not be filed; To which it was said, that this quantity of feet was but a Surplu∣sage in the Writ, and that the Writ before this was sufficient and warran∣ted by the Verdict and judgment.

Sherrey versus Richardson.

5. IN Debt upon an Obligation of 50 l. by Lawrence Sherrey against Ar∣nold Richardson, the case was this; 16 Martii 33 Eliz. the said Ri∣chardson was bound to Sherrey in 50 l. with condition to stand to and observe the Arbitrement, Award, order, rule, finall end and judgment of one Walter Bolton and Edward Price Arbitrators, indifferently elected to arbitrate, a∣ward, and judge of and for all Actions, Suits, Quarrels, and Demands whatsoever betwixt them, untill the date of the Obligation, so that it be made and done in writing under their hands and Seals, ready to be delivered to the parties, at, or before the last day of this instant month of April, and the said Arbitrators the last day of April, 33 Eliz. made an Arbitrement in writing under their hands and Seals, that within four daies next ensuing the award, either of the said parties shall release each to other all Actions, Suits, and Demands before the date of the said Obligation, with this Pro∣viso, that if either of the said parties shall be discontented with the said A∣ward, or any part of it, within twenty daies after the Award, that then upon the payment of 10 s. by the party which thinks himself agrieved with the A∣ward, to the other, within the twenty daies the Award shall be void, & either of them to be at liberty against the other as before the Award; and by the whole Court, if the Award shall be said made within the time comprised in

the O••ligation, where the Proviso had been to be performed after the four daies, it had been good, and a finall Award, because that the Proviso to make the Award void after the time limited for making of Releases, is repugnant to that which was to be executed before, to wit, that either of them shall re∣lease each to other vvithin four daies, for every Avvard ought to be reasona∣ble and indifferent betvvixt the parties in all appearance, and so that the one part of it ought not to impugn or encounter the other, and here to what purpose shall it be to make the Award void, and to put out at liberty against the o∣ther, when they have made Releases each to other, and vvhat indifferenty or reason should there be, that vvhen one hath released, the other may dissolve the Arbitrement by the Proviso, and hovv may the Obligation vvhich had been once forfeited by the not making of the Release vvithin the four daies be hel∣ped and become not forfeited by dissolving of the Arbitrement by the Pro∣viso. But by Popham, Gawdy, and Clench. if the Releases had been limi∣ted to have deen made at a day to come, as ten daies after, and that the Provi∣so had been to have been performed in the mean time before these ten daies, then the Avvard had been void, because they had not pursued the submission, for it vvas no finall end of the controversie, in as much as it is not certain by reason of the Condition, whether it shall be an end or not: But it seems to Popham, that the Award here is not made within the time that it ought to have been made by the Condition, for the Obligation is alledged to be made the 16 of March, 33 Eliz. and then no month can be the instant month but March, and therfore this word April is but a meer negation, and if it should not be so, to what April shall it refer? for there is no matter to guide it more to one April then another, but the generall intendment which happily shall guide it to the next April, for avaiding of incertainty, if it had not been for the words (this instant moneth) and the words (within this moneth) shall not be said to be frivolous & vain, where they may have a good and plain in∣tendment, but rather the word (April) which is repugnant to it shall be said to be void and a meer negation; but it seems to him that as the Award is, the case being that at any time within 20 daies after the Award made, the one or the other disliking the Award, might have been defeated upon the payment of 10 s. if the 10 s. had been paid within four daies, as it might have been, and before the Releases made the party by the intent of the A∣ward had not been bound to have made the Releases, because that by it with∣in the time before the Releases made, the Arbitrement shall be defeated by the Condition if it had been a good Award, and therfore it shall not be said to be a finall Award at the time of the Award made, because that instantly upon it, before the four daies are passed, there was power in the said par∣ties to have defeated the Award upon the payment of the said 10 s. and ther∣fore it seems to himself also that the Award was void, and by consequence the Plaintiff shall be barred.

6. KIng Richard the 3. by his Letters Patents granted to the Burgesses of Glocester and to their Successors, that the Town of Glocester, &c. shall be a County of it self, several and distinct from the County of Glo∣cester for ever, and no part of that County, and shall be called the County of the Town of Glocester; neverthelesse saving and reserving to himself and his Heirs, that the Iustices of Assise in the County of Glocester, the Iustices of Goal-delivery, and of the Peace, in holding of their Sessions, and also the Sheriff of the County of Glocester in holding of his County-Courts, and every of them may freely enter into the said Town, and keep the said Ses∣sions and County-Courts, of, and for any thing and matter arising out of the said County of the Town aforesaid, and within the said County of Glocester, as before time they had accustomed to hold them there, the said Grant or a∣ny other thing notwithstanding. And grants further, that they shall have a

Major, two Sheriffs, and one Recorder, within the same County of the Town of Glocester, and that the Ministers of the Sheriff of the County shall not afterwards enter to do or execute any thing there which to their Office of Sheriff appertaineth, or any waies to intermeddle with it, except only for the Sheriff of the County of Glocester, to hold their County-Courts as is aforesaid: And that the Major & Aldermen of the said Town for the time being, & their Successors, having power and authority to enquire here & deter∣mine all things which Iustices of P. or Iustices assigned, to hear & determine Trespasses and Misdemeanors within the County of Glocest. before this time have made or exercised: And that the Iustices of Peace, of him, his Heirs, or Successors within the said County of Glocester, should not intermeddle with the things or causes which belong to the Iustices of Peace within the said Town, &c. And upon this Charter divers things were moved by Sir William Periam Knight, now chief Baron of the Exchequer; before his go∣ing into the Circuit.

1. Whether, by the saving of the Charter they have sufficient power re∣served to them to fit within the Town, being now exempted from the said Town of Glocester, to enquire there of the Felonies done in the said Coun∣ty of Glocester; And so for the Assises and Nisi prius taken there of things made in the County of Glocester. Then if the the Sheriffs may execute their Warrants made there at the time of the Assises or Goal-delivery, notwith∣standing the exemption given to them by the Patent.

And it was agreed by all the Justices that the saving in the Patent is suf∣ficient for the Iustices of Assise and Goal-delivery to sit there for the things which happen within the County of Glocester, for as the King may by his Letters Patents make a County, and exempt this from any other County, so may he in the making of it save and except to him and his Successors such part of the Iurisdiction or priviledge which the other County from which it is exempted, had in it before; As in divers places of the Realm, the Goal of a Town which is a County of it self, or which is a place priviledged from the County, is the Goal of the County, and the place where the Assises or Goal-delivery is holden, is within the County of the Town, and yet serve also for the County at large; as in the Sessions Hall at Newgate, which serves as well for the County of Middlesex as for London, and yet it stands in Lon∣don, but by usage it hath alwaies been so, and nothing can be well prescribed unto by usage which cannot have a lawfull beginning by Award or Grant, and this by the division of London from Middlesex at the beginning might be so. And so the Goal of Bury, &c. And although that the words are, saving to him and his Heirs, yet by the word (Heirs) it shall be taken for a perpetual saving, which shall go to his Successors, which is the Queen, and the rather because it is a saving for Iustice to be done to the Subjects, which shall be ta∣ken as largely as it can be: And albeit the expresse saving for the Sheriff is but for to hold his turn, yet in as much as the authority of the Iustices of Assise and Goal-delivery in holding their Sessions as before was accustomed is saved, it is Included in it, that all which appertain to the execution of this Service, is also saved, or otherwise the saving shall be to little purpose: And therfore that the Sheriff, or other Minister made by the authority of these Courts, is well made there and warranted by the Charter: And wee ought the rather to make such exposition of the Charter, because it hath been alwaies after the Charter so put in execution by all the Iustices of As∣sise: But it seems that by this Commision for the County a thing which happens in the Town cannot be determined, albeit it be Felony commited in the Hall during the Sessions, but by a Commission for the Towne it may.

7. SIr Francis Englefield Knight, being seised in his Demesne as of Fee, of the Mannor 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, wherby the Queen by her Warrant under her privy Seal required him to return, upon which he was warned, but did not come, wherupon the Queen seised his Land for his contempt; After vvhich the Statute of Fugatives was made 13. year of the Queen, upon which by Commissions found upon this Statute, all his Lands were newly seised, and afterwards 17 Eliz. by Indenture made between him and Francis Englefield 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 other good considerations to raise an use, that he and his Heirs and all others seised of the said Mannor, &c. shall here∣after stand seised of them to the use of himself for term of his life, without impeachment of Wast, 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 said Francis 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 with a Proviso further, that if the said Sir Francis by himself or any other, shall at any time during his life, deliver or tender to his said Nephew a King of Gold, to the intent to make the said Vses and Limitations void, that then the said Vses and Li∣mitations shall be void, and that therafter the said Mannors, &c. shall be as before. Afterwards the said Francis was attainted of Treason supposed to be committed by him, 18 Eliz. A Le umures in partibus transmarinis, & le at∣tainder fuit primerment. utlagary & apres. per act de Par. 28 Eliz. by which the forfeiture of the Condition was given to the Queen, and at the same Par∣liament it was also enacted, that all and every person or persons which had, or claimed to have any Estate of Inheritance, Lease, or Rent then not entred of Record, or certified into the Court of Exchequer, of, in, to, or out of any Mannors, Lands, &c. by or under any Grant, Assurance, or Conveyance what∣soever, had or made at any time after the beginning of the Raign of her Maje∣sty, by any persons attainted of any Treasons mentioned in the said Act after the 8. day of February, 18 Eliz. within two years next ensuing the last day of the Session of the said Parliament, shall openly shew in the said Court of Exchequer, or cause to be openly shewn there the same, his, or their Grant, Conveyance, or Assusance, and there in the Term time in open Court, the same shall offer and exhibit, or 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 therof to be entred and inrolled of Record, or else every such conveyance and assurance should be void and of none effect, to all intents and purposes; saving to every person and persons (other then to parties and pri∣vies to such conveyance & such as shall not exhibit the said conveyance accord∣ing to the true meaning of this Act) all such Rights, &c. wherupon the said Francis the Nephew, the 20. day of Novem. 30 Eliz. in his own person affir∣med 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 then that it was made after the beginning of the Queens Raign, and before the Treason committed by the said Sir Fran∣cis, and before the Statute made 13 Eliz. against Fugatives, and omitting also the last clause of the Condition for the tender of the said King; and this he offered openly in the Court of Exchequer the same day: after which the Queen being moved with the said Condition, made a Warrant per Letters Patens under the great Seal, dated 17. Martii 31 Eliz. to Richard Broughton

and Henry Bourchier Esquires, for her and in her place and stead, to deliver or tender to the said Francis the Nephew a King of Gold, to the intent to make void the Vses and limitations limited by the said Indenture, and to re∣turn their proceedings upon it into the Court of Exchequer, wherupon they made a tender of a King of Gold to the said Francis the Nephew, the 18. day of March, 31 Eliz. which he refused to receive; And the two years after the said Session of Parliament was the 23. day of March, 31 Eliz. And the said Broughton and Bourchier returned all this that they had done as before, with the Commissions into the Exchequer, according to the Commission: And upon this at the Parliament holden 35 Eliz. upon an Act which then was to passe touching the Land and Attainder of the said Sir Francis, diverse questi∣ons were moved amongst all the Iudges and Barons then there; wherof

1. The first was, whether the effect of the Assurance made by Sir Francis was delivered into the Exchequer according to the intent of the Act, because it wanted the time when it was made, and also one of the Proviso's? And upon good deliberation they all did agree that it was not put in according to the purport of the said Act, for the time may be materiall to be known, for the fraud which by the same Statute might be averred to be in the making of this Conveyance, and for the better tryall of the validity of the assurance and of the cause of it, therfore the true effect therof ought to de delivered or shewn in writing to be entred of Record, because the Queens Councell may see and understand by it whether the Queen might have Title to it, or not; and how can this be if it doth not appear when it was done? And for the Con∣dition how can the Queen by presumption come to the notice of it, if it be not shewn to her? And this was one principall matter of the effect of the said assurance which ought to have been shewn, for this shewing ought to be for the benefit and advantage of the Queen, and not so much for the advantage of the party. And here the effect of it which shall shew for the Queen is o∣mitted, and therfore not shewn in writing according to the purport and in∣tent of the Statute, which was, that by it the Queen and her Councell may see what will make for her in the Grant, Conveyance, or Assurance.

2. Whether this Condition were given to the Queen, because that the words in this Indenture precedent to the Condition, are these; viz. Because that the said Francis the Nephew might happen to be of evill behaviour and government; the said Sir Francis provided as before, which (as was alled∣ged) was founded upon a particular regard and respect, which was proper to himself, and therfore cannot be transferred to the Queen; and it doth not appear that he yet had been of ill behaviour: But this notwithstanding, all agreed that this Condition is in the Queen by the attainder of the said Sir Francis, as well by the Act of his Attainder, as by the Act of 33 H. 8. which give the forfeiture of Conditions also expressy in the case of Treason.

3. Whether there ought to be an Office for finding the performance of the Condition according to the Warrant, and all agreed that there need not, because that when any man is to do a thing by Warrant of Letters Pa∣tents for the Queen, to be returned in any Court, it sufficeth for him to re∣turn it, which he hash done according to the Letters Patents, with the War∣rant it self, and then that which is so returned, is as well of Record as if it were found by Office and returned of Record; and so it was agreed in the Exchequer, about 16 Eliz. in the case of Edward Dacres, who had made an Assignment of his Goods and Chattells to Sir Alexander Culpdpper and o∣thers, who afterwards was attainted of Treason by Outlawry, and the Condition adjudged to be forfeited to the Queen by the Statute of 33 H. 8. and a Warrant was made by Letters Patents to Sir Thomas George to perform the Condition, who did it, and returned that he had done it accord∣ingly, wherby the assurance to the said Sir Alexander and his Companions was avoided, and all the Goods and Chattels of the said Edward forfeited to

the Queen, and all this was in the Queen without Office found, for that which the Sheriff or other Minister doth by virtue of any Writ or War∣rant which is to be of Record, when it is returned of Record, it is as well of Record as the Writ or Warrant it self, so here, &c.

4. But the greatest question was (which was not any thing in the case here) whether the Estate made to Francis the Nephew were void, eo instanti upon Hillary Term finished 31 Eliz. although the two year after the Session of Parliament, 28 Eliz. did not end untill the 28. day of March, 31 Eliz. in as much as no Term was or could be within two years after it, in which the assurance or the effect of it might be shewn openly in the Court of Exchequer, or that it shall tarry to be void untill the two years are fully ex∣pired; as if a man make assurance of his Land upon condition, that if he do not go to Rome within two years next ensuing, that it shall be to the use of I. S. and his Heirs, and he stay untill a week within the end of the two years, in so much as it is not possible to perform it within the two years, yet the use doth not change untill the two years are past; but in this case it ought to be shewn a Term within the two years, which is as much as to say, that if the Terms be all past, so as it cannot be done after it within the two years, the Assurance eo instanti upon the finishing of the last Term is become void; as if an Assurance be upon condition, that if in the Term time, within two years he do not levy a Fine to I. S. and his Heirs, &c. now if the last Term passe without the Fine, the Vse change, albeit the two years be not expired; si Parolls fort Plea: And there is great diversity where an Estate is to be defeated, or an Vse is to be raised upon an Act to be done, or not done, within a time certain, within two years, and where within two years ge∣nerally, for in the first case the Vse change upon the Act done, or not done immediatly, and in the other not untill the two years are finished, because that by presumption alwaies within two years the Act may be done for any thing of which the Law takes conusance. But if the Act to be done, or not done, refer to any time certain within the two years, as if he do not pay 10l. to one before the Feast of S. Michael the Arch-angel within the two years, that then the Vse shall change, or the Estate shall be void, in these cases im∣mediatly upon the last Feast of S. Michael the Arch-angel, within the two years the Vse change, or the Estate shall be void, as the case is, and shall not tarry untill the full end of the two years to do it, for in the words themselves the diversity appeareth.

8. AT the same time there was another Indenture shewn to the said Iud∣ges, bearing date the 4. day of May, 1 Eliz. made between the said Sir Francis Englefi••ld of the one part: And Sir Edward Fitton, and Sir Ralph Egerton Knights, of the other part, and inrolled in the Exchequer, accord∣ing to the Statute of the 30. day of October, 30 Eliz by which the said Fran∣cis for him and his Heirs covenanted with them, that as well in considera∣tion of a Marriage had and solemnised between John Englefield, brother of the said Sir Francis, and Margaret Fitton, Sister to the said Sir Edward, and for the augmentation and interest of the Ioynture of the said Margaret, as for other good causes and reasonable considerations, the said Sir Francis especially moving, the said Sir Francis before the Feast of S. John Baptist, then next ensuing, would assure Lands within the County of Warwick, of the value of 60 l. a year to the said Sir Edward and Sir Ralph, and their Heirs, to the use of the said Margaret for her life, and for her Ioynture, for part of it, and for the remainder that it shall also be to the use of the said Margaret for her life, in case that the Lady Anne then the wife of the said Sir Francis. should recover her Dower of the said 60 l. a year.

And the said Sir Francis for him and his Heirs, did further covenant with the said Sir Edward and Sir Ralph, that if it should happen that the said Sir

Francis shall die without Issue Male of his body, the said Iohn or any Is∣sue of his body upon the body of the said Margaret begotten then living, that then after the death of the said Sir Francis, as well the Mannor of Englefield, as all his other Lands (making especiall mention of them) should be and might descend, remain, revert, continue or be in possession or rebersi∣on to the said Iohn Englefield, and to the Heirs Males of his body upon the body of the said Margaret lawfully begotten, if the sayd Iohn were then li∣ving, or to the Heirs Males of the body of the sayd Iohn upon the body of the sayd Margaret lawfully begotten, without any Act or Acts, Thing or Things made, or to be made by the sayd Sir Francis to the contrary therof.

And upon this, it was moved, that there was a variance between this Deed now shewn, and this Inrolement, and that therfore it doth not ap∣peare, whether this Deed was shewn in the Court or delivered there accord∣ing to the Statute therof made, 28 Eliz. for in the Deed it is (for other good causes) and this word (good) is not comprised within the Inrolement.

But as to it, all the Iudges and Barons agreed, that albeit these defeats hapned by the negligence of the Clerk in writing and examining, this In∣rollement remaines good, in as much as the omissions are in matters and words which are of abundance, and not in that which is any substance of the Deed.

But the Lords of Parliament which were Committees of this case in the Parliament, sent for the Record of the sayd Inrolement, and would have had this to have been amended in the Chamber next to the Parliament; but as the Officer was in doing of it, the Iudges advised that it should not be done, as well because this was not the place where it ought to be amended, but the Court of Exchequer if it were, or needed to be amended: And also because that the two years after the Session of Parliament of 28 Eliz. was then past.

Then it was moved whether by the Covenant and considerations afore∣said, the use shall passe or were raised to John Englefield, or now to his Son Francis, Nephew to the said Sir Francis, and begotten upon the body of the sayd Margaret. And all agreed that it is not for divers reasons.

1. Because it is, that if it happen that Sir Francis die without Issue Male, that then it shall be to John as before, if he be then living, or to the Heirs Males of his body as before, which is in the disjunctive, to wit, that it shall remain to John, or to his Heirs Male of his body, which cannot raise any use, but found only in Covenant for the incertainty, and also it is upon a future contingent, to wit, if the said John be then living.

2. Because the Covenant is, that it shall come or descend, &c. in the dis∣junctive, and if he had covenanted that it shall descend to Iohn after his death without Issue Male, it had been cleer that no use had been raised by it, for it shall be but a meer Covenant, to wit, that he shall leave it to de∣scend to him; and here it being in the disjunctive it cannot be any other then a bare Covenant, to wit, that he shall suffer it to descend, or otherwise by conveyance to come to John, after his death without Issue Male, the one, or the other at his pleasure.

And yet further, that it shall descend, come, or remain to John in posses∣sion or reversion, so that he may make the one or the other void at his pleasure, which cannot be, if an Vse shall be raised by it, and therfore also it enures but as a bare Covenant, which he may perform either the one or the other way at his pleasure.

Also it is, that it shall so descend or come to John without any act or thing done or to be done by him to the contrary, wherby also it fully appeareth, that the assurance of the said John shall stand for all this Land upon the Covenant, and not upon any use which was to be altered or changed by it.

But if an Vse may change by the Mannor upon the consideration, yet it shall not change to the said John or his Issues, untill the death of the said Sir Francis without Issue Male, because that untill that happen, if the said John had been living, he had not had any Vse, because it is that he shall have the Land then if he be then living, and if it shall not be in him untill this time, it shall not be in his Son untill Sir Francis be dead without Issue; for it is if the said John or any Issue Male of his body, &c. be then living, then it shall descend, come, or remain, &c. so that it doth not come to them untill it may appear whether the said John, or any Issue Male of his body upon the body of the said Margaret, be in rerum natura, when Sir Francis shall be dead without Issue Male, and therfore it yet remains upon a contingent, whe∣ther the use shall be to the Heirs Males of the body of the said John, if it shall be said that it is an Vse, and therfore in the mean time the entire Fee-sim∣ple remains in Sir Francis, not yet changed, but for the Estate tail it self in himself, if any change shall be, as appeareth before that it shall not be, and therfore by the attainder of the said Sir Francis, the whole Fee-simple is now all forfeited to the Queen, before that the use may be to the Heirs Males of the body of the said John: And the Queen shall not come to this Land in a∣ny privity by the said Sir Francis, but in the Post by the Escheat, and ther∣fore the possession of the Queen now, or of her Patentee shall never be chan∣ged with this Vse, which shall never be carried out of any other possession but such which remaineth in privity untill the use is to come in Esse, no more now then as it might at common Law before the Statute of Vses, 27 H. 8. And this as to the future Vse was the opinion of Popham, and some other of the Iustices. And nota 21 H. 7. plito. 30. If a man covenant in conside∣ration of the Marriage of his Son, that immediatly after his death his Land shall evert, remain, or descend to his Son, to him and the Heirs of his body, or to him and his Heirs for ever, that this is but a bare Covenant, and doth not change any Vse; And what diversity then is there in the case of Sir Francis Englefield, who covenants that it shall descend or remain in possessi∣on, or revert. And as it seems the great difficulty which was in the case of Sir Robert Constable, which was put by Gerard Attorney-generall, 6 Eliz. and it appeareth in Dyer 1. Mar. was because that the Covenant was, that it shall be to the Son in possession or use, which for the incertainty in as much as it was in them to leave the one or the other, or perhaps the Estate of their Land was such, that part was in possession and part in use, and therfore according to the intent taken rather for a Covenant then for matter suffici∣ent to change the use: But it was so that it was never helped by any right which he had, but by the grace of the Queen he enjoyed it.

Easter Term, 35 Eliz. Crocker and York, versus Dormer.

1. UPon a Recovery had by John Crocker and George York, against Geffrey Dormer, in a Writ of Entry in the Post, of the Mannor of Farningho, with the Appurtenances, and of 6 Messuages, 6 Cottages, &c. in Farningho, and of a yearly Rent or pension of 4 Marks is∣suing out of the Church or Rectory of Farningho, and of the Advowson of the Church of Farningho, in the County of Northampton, William Dormer Son and Heir of the said Geffrey, brought a Writ of Error, and assigned di∣verse Errors.

1. Because that ••uch a form of Writ doth not lye of an Advowson, but only a Right of Advowson, Darrein presentment and Quare impedit.

2. Because he demands the Advowson of the Rectory, and also a Rent issu∣ing out of the same Rectory.

3. Because the Demand for the Rent is in the Disjunctive, to wit, a Rent or a Pension.

4. Because it is a pension, wheras a Pension is not sutable in our Law, but in the Spirituall Court; To which Gawdy said, that there is a great di∣versity between a common Recovery, which is an assurance between parties and a Recovery which is upon Title, for a common Recovery is to an Vse, to wit, to the use of him against whom it is had, if no other use can be aver∣red, and therfore as to the Vse, it is to be guided according to the intent of the parties, and by a common Recovery had against Tenant for life, he in the Reversion if he be not party or privy to it, may enter for a forfeiture, as it was adjudged very lately in the Exchequer, by the advice of all the Iustices in the case of a Recovery had against Sir William Petham Knight, and in all these things it is otherwise in case of a Recovery upon Title, and therfore in as much as this common Recovery is but a common Assurance between parties, and is alwaies by assent between parties, to the end that they may make assurance from one to another, there shall be and alwaies hath been a contrary exposition to a Recovery which is by pretence of Title, and it hath been common to put in such Recoveries, Advowsons, Commons, Warrens, and the like, and yet alwaies allowed: And if this shall be now drawn in question, infinite Assurances shall by this be indangered, which the Law will not suffer, and therfore the demand of an Advowson and Pension in the Writ of Entry makes not the Writ vitious, as it shall do in another Writ of Entry founded upon a Title and not upon an Assurance. And as to that, that the Rent and the Advowson also is demanded, this is good, be∣cause the Advowson is another thing then the Rectory it self, out of which the Rent is demanded to be issuing: And for the disjunctive demand of the Rent or Pension, it makes no matter in this case, because it is a common Reco∣very in which such a precise form is not necessary to be used as in other Writs, and also a Pension issuing out of a Rectory is the same with the rent: To which Clench and Fennor agreed in all; but Popham moved that the greatest difficulty in this case is the demand made to the disjunctive, to wit, of the annuall Rent or Pension, for if a Pension issuing out of a Rectory shall be said to be a thing meerly spirituall, and not to be demanded by our Law, or meerly of another nature then the Rent it self, with which it is conjoyned by the word (or) then it is erroneous; for albeit a common Recove∣ry, be now a common assurance of Land past by the assent of parties, and therfore hath another conservation, then that which passeth by pretence of Ti∣tle, yet we are not to omit grosse absurdities in such common Recoveries, as to demand an acre of Land or Wood in the Mannor of Sale, or Dale, or black acre, or white acre, these are not good in common Recoveries, because there is no certainty in the demand which of them the party is to recover, which kind of absurdity is not to be admitted in these Recoveries; for this is but a meer ignorance in the Law and the Ministers of it. And to this Gaw∣dy and the other Justices agreed, but they sayd, that a Pension issuing and a Rent shall be taken for all one; for if a man grant a Pension of 20 s. a year, issuing out of the Mannor of D. or of the Rectory of S these are Rents issuing out of them: and if the demand had been of an annuall Rent, or Annuity of 20 s. a year issuing out of the Rectory, this had been good. To which Pop∣ham agreed, and yet sayd, if it had been an annuall Rent of 20 s. &c. or of an Annuity of 20 s. it had nof been good, because that the word (issuing) is not referred to the Annuity, but to the Rent only, and therfore are meerly ge∣nerall, and not as the same, but if the demand were of an annuity, rent, or payment of 20 s. issuing out of a Rectory, it is good, for this is but one and the same. Then it was alledged that notwithstanding that which appears to the Court, it cannot be taken that this was a common Recovery, for upon the assignment of the Error, it is not averred that it was a common Reco∣very,

to which Popham said, that common Recoveries are such common Assurances to all persons that are well known to all, and especially to us that they need not be averred, for they are known by certain Marks, to wit, by the voluntary entry into the Warranty, the common Voucher and the like: And at last they all agreed that the Iudgment shall be affirmed.

2. In Wast, by Thomas Haydock against Richard Warnford, the case was this; One Michael Dennis was seised in his Demesne as of Fee, of the third part of a Messuage, and of certain Lands in Bury Blunsden in the County of Wilts, and being so seised the last of April, 9 ••liz. demised them to Susan Warnford for 41. years, from the Feast of S. Michael the Arch-an∣gel then next ensuing, who assigned this over to Richard Warnford, after which the said Michael Dennis by bargain and sale enrolled, according to the Statute conveyed the Reversion to John Simborn Esquire, and his Heirs, the said Iohn being then seised of another third part therof in his Demesne as of Fee, after which, to wit, the first day of Iune, 17 Eliz. the said Iohn Simborn demised the said third part, which was his before his said purchase to the said Richard Warnford for 21 years then next ensuing, and afterwards the said Iohn Simborn died seised of the Reversion of the said two parts, and this descended to Barnaby Simborn his Son and next Heir, who the 20 of Iune, 28 Eliz. by bargain and sale enrolled, according to the Statute con∣veyed, be Reversion of the said two parts to the said Thomas Haydock and his Heirs, after which the said Richard Warnford committed Wast in the said house, wherupon the said Thomas Haydock brought an action of Wast against him, according to the said two severall Leases, and assigned the Wast in suffering the Hall of the price of 20 l. a Kitchin of the price of 20 l. and so of other things to be uncovered, wherby the great Timber of them became rotten, and so became ruinous, to the disinherison of the Plaintiff, and upon a Nihil dicit, a Writ was awarded to enquire of Damages, in which it was comprised that the Sheriff shall go to the place wasted, and there enquire of the said Damages, who returned an inquisition taken therof at Bury Bluns∣den, without making mention that he went to the place wasted, and that it was taken there, wherupon Iudgment was given in the common Bench, that the said Plaintiff shall recover his Seisin against the Defendant of the said places wasted, with their Appurtenances Per visum Iurator. Inquisitionis predict. & damna sua occasione vast•• in eisdem locis in triplo secun••ū formam statuti, &c. And upon this a Writ of Error was brought in the Kings Bench, and there by all the Iustices it was agreed that it was but Surplusage to comprehend in the Writ of enquiry of Damages, that the Sheriff shall go to the place wasted, and there enquire of the Damages, in as much as by the not denying therof, the Wast is acknowledged, and therfore he need not go to the place wasted: But where a Writ is awarded to enquire of the Wast upon default made at the grand Distresse, there by the Statute of West. 2. cap. 24. the Sheriff ought to go in person to the place Wasted, and enquire of the Wast done, and therfore in that case it is needfull to have the clause in it, that the Sheriff shall go to the place wasted, and there enquire of it: for by the view the Wast may be the better known to them, but where the Wast is acknowledged, as here, that clause need not, and albeit it be comprehended in the Writ, yet the Sheriff is not therby bound to go to the place wasted, and to enquire there, but he may do it at any place within his Bayliwick where he will, and therfore it is no error in this point: And they agreed also that the Wast is well assigned in the entire Hall, &c. al∣though the Action were brought but upon the Demises of two third parts of it, and it cannot be done in these parts, but that it is done in the whole, and also it cannot be done in the whole, but that it is also done in the three parts, but yet the doing therof is not to the disinheritance of the Plaintiff, but in these two third parts; and therfore no error in this manner of assigning of

the Wast. And they also agreed that the Action is well brought upon these severall Demises, because neither the interest of the Term, nor of the Inhe∣ritance was severed nor divided to severall persons at the time of the doing of the Wast, but the two Terms in the one, to wit, in Warnford, and the Inheritance of these immediatly in the other, to wit, in Haydock; And by Popham also, the thing in which the Wast is assigned, is one and the same thing and not diverse, to wit, a Messuage, and therfore by Brudnell and Pollard, 14 H. 8. 10. if severall Demises are made of one and the same Mes∣suage by one and the same person, as one part at one time, and another part at another, an Action of Wast may well lye: Albeit Fitzherbert and Brook seem therin to be of a contrary opinion, and that severall Actions of Wast ought to be in that case.

And the exception was taken, because the Iudgment was entred that he shall recover the place wasted, Per visum Jurator. praedict. wheras they had not the view of it in this case, for this should be where it is given upon a Writ awarded to enquire of the Wast upon default made at the grand Di∣stresse; whereas here the Wast is not denied but acknowledged.

But as to this, severall Presidents were shewn, the one upon Demurrer for part, Hill. 1. Mariae. Rot. 301. and another Tr. 31. H. 8. Rot. 142. in an Information, in both which Cases the Iudgment was entred as here, to wit, Per visum Jur. praedict. and yet in these, the Wast was as acknowledged: Whereupon it was ordered that the Iudgment should be affirmed.

3. In an Ejectione firmae brought by Sir Moyle Finch Knight, Plain∣tiff against John Risley Defendant, for a Messuage and a Mill in Raveston in the County of Buckinghamshire, the case for the matter in Law appear∣ed shortly to be this.

The King and Queen Philip and Mary by their Letters Patents, dated the eight of July, 3. & 4. of their Raign, made a Lease of the Reversion of the Mannor of Raveston (of which this was parcell) to Sir Robert Throg∣morton for seventy years, from such a Feast, after the death of the Coun∣tesse of Ormond, who then had it for her life, rendring yearly 73 l. 13 s. payable at the Feasts of Saint Michael the Arch-angel, and the Annuncia∣tion of our Lady, at the receit of the Exchequer by equall portions, with a Proviso that the Lease shall cease, if the said Rent or any part therof were arrear, and not paid at the said Feast, or a certain time after, the Reversion descend to the now Queen, and the said Countesse died 7 Eliz. part of the Rent then payable, was not paid at the day, nor within the time limited by the Proviso, afterwards Queen Elizabeth by her Letters Patents, dated 30. May, 30 Eliz. granted the said Mannor to the said Sir Moyl, and one Awdeley and their Heirs in Fee, with a clause in it, that the Letters Patents shall be good, notwithstanding there be not any recitall of any Lea∣ses or Grants at any time before that made by her, or any of her Progeni∣tors; after which an Office is found for the Queen, that the Rent was ar∣rear and not paid as before, after which the said Sir Moyl and Awdeley assu∣red the said Mannors by bargain and sale to Sir Thomas Hennage who de∣mised the said Messuage and Mill to the said Sir Moyl, upon whom the said Risley entred in right of the said Lease made by the said King Phillip and Queen Mary, under Thomas Throgmorton, who then pretended to have the term of the said Lease from Sir Robert his Father. The case was well ar∣gued at the Bar, and now at the Bench, where Fennor moved first, Whether it were a Condition. 2. Whether an Office were requisite. 3. Whether this Office found, comes soon enough for time: For the first he conceived that it was a conditional Limitation, for a Limitation is that which limits an Estate certain o•• doubtfull, as Quandiu in manibus nostris fore contige∣rit, quamdiu amicus sit, or dummodo solverit: And there (dummodo)

was a Condition as appeareth, 5 Ass plit. 9. & 2. Ass. a Grant made to J. S. and his Heirs tam di••, as the Grantor and his Heir shall enjoy such a Man∣nor, this is a Limitation, and a Limitation alwaies determines the E∣state, but a Condition albeit it be broken during the Estate, yet it doth not determine the Estate, and so it is of a conditional Limitation, and therfore tis not in the King untill an Office be therof found, for the King submits him∣self to the Law, for Bracton saith, Quod non debet judicare sed secundum legem, and his Prerogative is so excellent, that he cannot take a part with any thing, but by matter of Record, neither can he draw the Right or Posses∣sion of any one in question upon a bare surmise, but by Office or other matter of Record, for a Record alwaies carries credit with it. And there is no di∣versity where two matters are limited in Deed, and where one is limited in a Deed, and the other by the Law: And the contrary objections are easily answered, for when the Tenant in tail of the King dies without Issue, it is in the King without Office, because the Law does not help them which contemn it. But in case of an Office which is forfeited, it is in the King to dispose without Office, because the King is not to have the Office it self but the disposition of it, and yet it is to be defeated by Scire facias in the Chan∣cery.

If a Mill be demised for life, upon condition that he shall not let it but to a Milner, and he breaks the Condition, in case of the King there must be an Office to avoid it, and there the Office entitles the King to the Condition and not to the Entry, for after the Office it is not in the King untill Entry: And here the Rent may be paid to the Kings Bayly in the Country, which is matter in fait, and therfore shall not be defeated without Office; And here the Office comes too late to give any advantage to the Patentee, for the King cannot grant a Title of Entry before Office, no more then the Assignes of a common person can take advantage of a Condition broken in the time of the Grantor, of which the Grantor did not take advantage in his time; And if the Queen makes a Lease durante beneplacito, the Patentee shall not a∣void it, as it appears in the Lord Burgleighs case, and therfore the Office her•• shall not help the Patentee, but the Queen for the mean profits: for although nullum tempus occurrit Regi, yet the Patentee shall not take advantage of this Prerogative.

Clench agreed cleerly, that it was a Limitation, but yet that it is at the Queens liberty to avoid or make it good, for perhaps the Rent is better then the value of the Land, and upon this reason a Lease from the King Probi•• hominibus de dale, or to a Monk rendring rent, is good, which otherwise had been meerly void: And by the Office found, the Election of the Queen ap∣peareth, without which the Lease is to continue, and therfore the Patentee shall not defeat that which happened in the Queens time before.

Popham, to say that the Office helps the Queen for the mean Profits, and that now the Patentee shall not take advantage to avoid the Lease is too absurd; for the Queen cannot take advantage to have the mean Profits, but in respect of the avoidance of the Lease: And if the Lease were made void or determined against the Queen, it shall not remain good and of force against the Patentee, and also to say, that the Lease might have its continuance, af∣ter that it is determined by the Limitation comprehended in the Writing, by reason of a reservation, is also too absurd, for so it may be said, that if the Queen make a Lease for years, if J. S. shall live so long, rendring rent, that this Lease may have continuance after the death of J. S. which cleerly is not Law; And the Patentee here shall take the advantage to avoid the Lease hapned before his Patent made, because that no Office need to be found of the not payment before it passed from the Queen to make it voyd, and the reason is, because this Proviso (as it is penned) is a meer Limitation of the Estate, and not any manner of Condition; And therfore if the Queen

make a Lease for 100. years, if the Lessee shall so long lawfully pay the Rent reserved at the day of payment, if he fail of payment of the Rent reserved at the day limited, the Lease is ipso facto determined, and it need not be found by Office. And what diversity is there where the Limitation is conjoyned to the estate it self, and where it cometh in by a Proviso afterwards, all being in one and the same Deed, and therfore spoken at one and the same time, for the one and the other case manifesteth that the contract and agreement is, that the Lease shall not continue longer then the default of the payment of the Rent.

And in this case, suppose that the Queen had granted over the Land? shall not the Patentee have advantage to avoid the Lease, because that no Office was found before? It is cleer that he shall, or otherwise this is now become to be an absolute Lease for a hundred years, which is not Law, for it is meerly contrary to the Contract, and therfore absurd to be maintained: I agree with the generall rule that nothing shal passe to, or from the Queen but by matter of Record; but this makes nothing against me in this case, for here the same Record which passeth the Estate to the party, to wit, the Patent of the Lease contains the time how long it shall endure, longer then which it cannot continue: And therfore by 9 H. 7. If the King makes a Gift in tail, and the Donce dies without Issue, the Land is in the King without Office, so in every other case where the Estate is determined according to the limita∣tion, for he cannot be put out of possession wrongfully, and now hath right to hold it against him. And I say that no warrant or authority can be found throughout the whole Law where a Lease or Estate made by the King is de∣termined by an expresse limitation comprised in the Patent it self of the Grant, that there need not any Office or other thing to determine it, for that which is comprised in the same Patent may determine it, of it self.

And further, wheras the Proviso is, that the re-entry shall be for default of payment of the Rent, and the like, there the Term continues untill the re-entry be made, notwithstanding the Condition be broken, as appeareth by all the Iustices, 28 H. 8. because it is expresly limited that it shall be defea∣ted by the re-entry, & there before re-entry be made, the Action of Wast shall be, quod tenet: And by 12 H. 7. where a common person is put to his Entry, there the Queen is put to an Office, with which agrees Stamford in his Book of Prerogative: But in this case, if it were between common persons, the Lease shall be determined upon default of payment of the Rent, and before any re-entry, and therfore in the Queens case it shall be determined without Office. But if the case had been, that if the Rent had been arrear and not paid, that then upon re-entry made, it ought to cease, there an Office had been necessary to countervail the Entry in case of the Queen, or otherwise the Lease shall not cease, because the Queen cannot make an Entry but by such means, and therfore it ought to be by matter comprised in the Patent. It hath been said, that this shall be a conditionall Limitation, and that therfore an Office is necessary; but I say, that here is not any matter or quality of a Condition, but meerly of a Limitation, and tis rather a contingent Limita∣tion then any manner of Condition, and this is well proued by 11 H. 7. which is, that the Grantee of a Reversion shal take advantage of it at common Law, the which he cannot do if it savour any way of a Condition, and by 27 H. 8. a Proviso in a Deed ought alwaies to be expounded according to the purport, because that it is placed in a Deed, somtimes for a Condition, as where a Proviso is that the Lessee shall not alien; somtimes for an exception, as where a Proviso is, that the Lease shall not extend to such an acre, or such a thing, somtimes for a Limitation, as here and in the like cases. And in this case the release of the Rent shall make it, that the Lease shall never be de∣termined for the not payment of it, because tha•• ••••terwards there cannot be any such default of payment; and therfore in such a case the Limitation re∣maineth

absolute and discharged of the contingent, which otherwise had deter∣mined it: As if a man make a Lease for a 100. years, if the Lessee in the mean time do not cut such a Tree, a release of all Conditions will not serve, yet if the Lessor himself or any other but the Lessee cut it, the Lease is be∣come absolute for a 100. years: And so upon this point my conceit appeareth. But the most colourable thing which hath been alledged on the other side, was by my Brother Drew, which was, that in counting upon an Ejectione firmae, and pleading in such a Lease as here, it shall be as an absolute Lease for the years comprised in the Habendum, without making any mention of the Prouiso, upon which he enforced it that it shall be taken to be of more ef∣ficacy then if it stood meerly upon the Contingent; for he said, that upon a Lease made for years, if the Lessee shall so long live, and the like, in the count, and also in the pleading mention ought to be made of the life of the Lessee: I agree it to be true that the pleading shall be so, for in count coun∣ting, and in plea pleading, if the matter of the Contingent procede the Li∣mitation, or be anncred to the Limitation, there a man ought to speak to the Contingent, or otherwise it is not good, as by 14 H. 8. it shall be of a Con∣dition where it is precedent; But in case of a Condition it is quite other∣wise, for if •• man make a Lease to another for years, Si tamdiu vixerit, or Dummodo solverit, &c. or the like, which are annexed to the limitation of the Estate; in all these cases in counting and also in pleading, he ought to aver the life of the Lessee, or otherwise the contents of the thing according to the limitation: But where that which was the Limitation cometh by a Pro∣viso, after the Habendum which distinguisheth the sentence as here, there, because it it is a matter distinct and subsequent from the Habendum, and not annered to it, he need not to speak of it, but there it shall alwaies come in to be shewn of the other part, and this is the usuall and common case of diffe∣rence for pleading, but this makes no difference of the Estate; And ther∣fore if an Obligation be made with a Condition endorsed, the Plaintiff in debt upon it doth not speak of the Condition in his Count, but if the Condi∣tion be precedent, or stands comprised within the body of the Obligation, then he ought to speak of it in his Count, as appeareth by 28 H. 8. where a man was bound in twenty quarters of Malt, to be paid at such a day, and if he fail, that he shall pay forty quarters at such a day, if he demand the forty quarters in his count, he ought to shew the default of payment of the twenty quarters at the day limited for it, and yet the Condition that is out of, and that which is comprehended within the Obligation are but as one for the substance, but for the form it differs as to the pleading, which form ought to be observed.

Another reason is in this case, because that the payment of the Rent is li∣mited to •••• made at the receit of the Exchequer, in which case if it had been 〈…〉〈…〉 had been entred of Record, and not being so, the default ap∣peareth o•• Record, and where the default appeareth of Record, there needs no Office, for •••• shall be in vain to make that to appear upon Record by Office, which 〈◊〉〈◊〉 appeareth of it self by Record, and therfore in 4. and 5. 〈…〉〈…〉 & Mary it appeareth, where Sir John Savage was Sheriff of the 〈…〉〈…〉 Fee, and that he was indited of two severall voluntary 〈…〉〈…〉, and for not keeping of his Turn in loco consueto upon two 〈…〉〈…〉 removed into the Kings Bench in 8 H. 8. upon the motion of the 〈…〉〈…〉-generall the Office was seised into the Kings hand without Scire facias, or any Inquisition found therof, and as appeareth 3 Eliz. One B••ake who by Patent was the Kings Remembrancer in the Exchequer being made one of the B••rons of the same Exchequer, the other Office was ipso fa∣cto ••one and determined, & there need no inquisition to be made of it, nor Sci∣re facias to avoid it, because the taking of the Office of a Baron is of Record; And a man cannot be a Iudge and a Minister in one and the same Court, and therfore the first Office is determined by taking of the second, and there need

no Office to be found of it, the matter it self being apparant upon Record, and therfore as it appeareth it was adjudged in 13 H. 8. that a new Patent of the same Office of Remembrancer making recitall of the former Patent (which appeared as before upon Record to be void) with a clause Quod post mortem sive determinationem, &c. therof, the new Grant shall take effect, was void. And Englefields case was lately adjudged in the Exchequer (and at the Parliament 35 Eliz. allowed to be good Law by all the Iustices there being) where the Queen had a Condition given to her by forfeiture upon an Attain∣der of Treason to be performed by the payment of a summ of money, or the like: If the Queen makes a Warrant by Patent to one to perform the Condition, and to return his proceedings therupon into the Exchequer, who performs it accordingly, and therupon returns all that he hath done with his Warrant into the Exchequer, no Office need to be found of the performance of the Condition, because that by the return (which is warranted by the Patent) the Condition appeareth sufficiently upon Record to be performed, and therfore no Office need to be found, no more of the not-payment in this case. It hath been said by some, that it may be that the Patentee hath ten∣dred the Rent at the receit, and that they would not receive or record the re∣ceit of it, and that then it should be hard that he should loose his Lease, no de∣fault being in him: to which I say, suppose a man be bound to make his ap∣pearance in any of the Kings Courts, may he say, that he appeared there accor∣ding to the Obligation, & excuse himself by such bare averment therof, unlesse his appearance be entred of Record? It is cleer that he cannot, as appeareth by 18 E. 4. for appearance in a Court of Record, is not unlesse it be of Record, yet it may be said, that then the case may be had to the party: as if the Offi∣cer will not record his appearance, which is the same mischief as in this case, but this will not help him, for first the Law presumes that every Officer wil be indifferent betwixt party and party; and upon this opinion had of him he is admitted to his Office, wherupon the Law presumes that if the party would have appeared, that the Officer would have recorded it, and in as much as he did not do it, it shall be taken that he did not appear. But the strongest reason in the case is this, to wit, if default be not in the party to do that which he ought to do, but in the Officer to do that which belongeth to his Office, as to record that which he ought to record, there the Officer shall be chargable to the party in an Action upon the case, to answer him so much in Damages as he hath sustained by such default of the Officer, and the Law will put the party rather to such a recovery then to answer it by a bare mat∣ter of averment which ought to be of Record. And further such a voluntary default may be a forfeiture of his Office, and so a sufficient penalty in case of an Officer. And to say, that the Office of Receit is not an Office of Record, is too absurd, for it is a principall member and part of the Court of Exche∣quer, and as wel of Record, for the matters belonging to it, as the Offices of the Pipe and Remembrancers are for those things which belong to them; and the Records of Receit as well inrolled in Rolls of Parchment as any other Records of the Queen in this, or any other Court, & it is commonly used now to convey Reversions & Remainders to the Queen, with a Proviso to be void upon payment of a certain sum of mony to the Queen at the receit of the Ex∣chequer, & it is as usual upon payment made there to have it back again with∣out office found of this paym. and what is the reason of it? now, but because the paym. there is alwaies entred upon Record, & therfore no Office needs make this paym. to appear upon Record. And for the case of Sir Rob. Chester. 4 Eliz. there is great diversity between that & this case, for it is ordained by the Act that upon the default of paym. (which is not limited there to be made at the receit) the office shal be forfeited, & not that the estate in the office shall cease: And of a thing forfeited it is at the election of him who is to take advantage of the forfeiture, whether he will take it or not, and till the advantage taken therof the party still remains an Officer.

And therfore if the Queen make a Lease for years, and the Termer makes a Feoffment in Fee, the Term by this is extinct, as was agreed upon an E∣vidence in the Exchequer 28 El. in the case of Drayton Basset, and before that, in the same case in the Kings Bench, and yet no reversion is drawn therby out of the Queen. Suppose then that the Queen before any Office found therof, grant the Land over in Fee, shall not the Patentee take advantage therof by extinguishing the Term? It is cleer that he shall, and albeit a Termer holdeth over his Term, yet the Patentee of the Queen, and also the Bargainee of a common person after the Inrolement of the Bargain shall take advantage of this determination of the Term.

And for the not reciting of Throgmortons Lease in the Letters Patents made to Finch and Audeley, it is to no purpose to speak to it, because the E∣state was finished before the Grant; And further, because there was a Non obstante in the Patent, that it shall be effectuall, notwithstanding any not recitall of any Lease being of Record, or not being of Record, mis-recitall, &c. which was by all at the Bonch admitted to be good, and not contradicted by any.

And for the Office found after the Grant made, I did not speak to it, be∣cause it is of no purpose to help the Patentee, but yet shall serve the Queen for the mean profits, as hath been said: See more of this case, Trin. 36 Eliz. pl. 2.

Trinity Term 35 Eliz. Hughes versus Robotham.

1. MEredith Hughes brought an Action upon the Case against William Robotham Executor to Ja. Robotham, for that the Plaintiff in the life time of the sayd Testator, to wit, the 12th. of Ap••il, 28 E∣liz. at London, in such a Parish and Ward, was possessed of a Messuage, with the Appurtenances, in the same Parish and Ward, for divers years then to come; And whereas also the said Testator was then possessed of the reversion therof after divers years then also to come, and so possessed the said Testator the said 12th. day of April, at London, in the Parish and Ward a∣foresaid, in consideration that the Plaintiff at the instance and request of the Testator in his life time would surrender all his Estate and Term of years which he then had to come in the said Messuage, with the Appurtenances, and procure one Thomas Thornell to give to the said Testator a 100. marks for a Lease therof to be made by the said Testator to the said Thornell, he as∣sumed and promised to pay to the Plaintiff 30 l. of the said 100. marks, when he should be therunto required by the Plaintiff.

And the Plaintiff alledged in facto, that he at the instance and request of the said Testator in his life time afterwards, to wit, the 20th. day of April, 28 Eliz. at London, in the Parish and Ward aforesaid, surrendred to the said Testator all the Estate and term of years which he then had to come in the said Messuage, &c. and that he, the same 20th. day of April, in the same Pa∣rish and Ward, procured the sayd Thornell to give to the said Testator 100. marks for a Lease of the said Messuage, &c. by the Testator to the said Thornell, then and there made for 19 years, from the Feast of the Annuncia∣tion of our Lady then last past, and that yet the said Testator in his life time, nor the said Defendant after his death, have not paid to him the said 30 l. al∣beit the said Testator in his life time, to wit, the 24. day of April aforesaid, at London, in the Parish and Ward aforesaid, as therunto required by the said Plaintiff, and albeit the Defendant after the death of the said Testator, to wit, the 10th. day of April, 32 Eliz. in the Parish and Ward aforesaid, was

also therunto required by the said Plaintiff: And albeit there were suffici∣ent Goods and Chattels of the said Testator at the time of his death, to pay as well the said 30 l. as all other Debts of the said Testator, and also to dis∣charge the Funerals of the said Testator, which Goods and Chattels came to the said hand of the said Defendant, &c.

And after Non assumpsit pleaded, and a Verdict for the Plaintiff, excepti∣on was taken in arrest of Iudgment, that the Declaration was not good.

1. Because it is, that the Plaintiff the 20th. day of April, 28 Eliz. surren∣dred all the Estate and term which he had then to come, and this (for any thing shewn) may be another Term then he had the 12th. day before, for it is not said, and so being possessed the 20th. day he surrendred, but generally as before.

And further the consideration was, that he ought to surrender all the Term which he had the 12th. day of April, which cannot be made the 20th. day, for in the mean time, part of the Term is incurred, and therfore the pur∣pose was that the surrender should have been made immediatly as soon as might be, so as by the delay therof the ••••d Robotham should not loose any part of the Term to come.

And it was further alledged, that a term for years cannot be surrendred to another Termer for years.

Gawdy, The consideration is, that the Plaintiff at the request of the Te∣stator in his life time should surrender, so that it is not to be done untill he be required by the Testator, and not instantly at his perill without request precedent; and here it is alledged that the Plaintiff at the request of the said Testator, the 20th. day of April surrendred, which is well done, and accord∣ing to the agreement, and albeit it had been more formall to have said that the said Plaintiff so being possessed afterwards, to wit, the 20th. day of April, surrendres, &c. yet it shall not be intended that he had any other term then that which he had before, if it be not shewn on the other side in his Bar, and especially here, where the Action is not grounded upon the Term, but up∣on the Assumpsit, and the consideration is nothing but an inducement to the Assumption, which is not so formall to be made as if the Action had been grounded upon the Term it self. And therfore in an Action upon the case upon an Assumpsit, it sufficeth to say, that wheras the Defendant was indebt∣ed to the Plaintiff in divers summs of money amounting in all to a 100 l. the Defendant assumed to pay him the 100 l. at such a day, without saying, how or in what manner these Debts accrued, or when, because the Action is nor meerly founded upon the Debt but upon the promise, and the Debts are but inducements to it: But if it were to recover the Debts themselves in an Action of Debt there ought to be made a certainty therof, to wit, when, and how it comes.

And further here, in as much as the Assumpsit is found for the Plaintiff, it shall be implyed that the consideration was duly performed, for without due proof of the consideration the Plaintiff hath failed of his assumption, and therfore also it shall be now taken that the Testator hath such a term of years in reversion, to which the term for years in possession may be surrendred, for he said, that he who hath ten years in possession may well surrender to him who hath more years, as twenty in reversion; for the lesser may sur∣render to the greater term. To all which Popham and Fennor agreed: And Popham said further, although it shall be taken most strongly against Hughes, to wit, that Robotham had a lesser term in the reversion then Hughes had in the possession, yet the surrender shall be good, for in Law it is greater and more beneficiall for him to have a lesser term to be a term in possession, then to have it to be in reversion: ••••nd by him, if a Lessee for twenty years make a Lease for ten years, then he w••ich makes the Lease for ten years hath a re∣version upon these ten years, so that if Rent be reserved upon it, he may di∣strain

for it and have Fealty of the Termor: And if he grant the Reversion over for ten years, with attornment of the Termor in possession, the Grantee hath the Reversion and shall have the Rent for the time, and yet the Remain∣der for years remains alwaies to the Grantor, and therfore before the Rever∣sion granted ever, the Termor for ten years in possession might have surren∣dred to his Lessor, and therby the said Lessor shall have so many of the said years which were then to come of his former term of twenty years; And after the Reversion granted, he, which hath the ten years may surrender to the Grantee of ten years in Reversion, and there he shall have so many years in possession which were to come of his Reversion, Quod nota bene: And if he had had a lesser term in the Reversi••n then the Less••r himself had in the Possession, it shall go to the benefit of the first Termor for twenty years, who was his Grantor, for the Term in possession is quite gone and drowned in the Reversion to the benefit of those who have the R••version therupon, ha∣ving regard to their Estate in the Reversion, and not otherwise; to all which Fennor agreed, wherupon Gawdy gave the rule that Iudgment shall be en∣tred for the Plaintiff: But Popham said, that if the consideration for the surrender had not been sufficiently alledged, that the Plaintiff sh••uld not be helped by the other consideration of 100. marks given by Thornel, for if such an Assumption as this is be founded upon two more considerations, and such which by possibility may be performed, then the party hath failed of his Suit: As if a man in consideration of 5 s. paid, and of other 5 s. to be paid at a day to come, assume to do a thing, or to pay money, if the one 5 s. be not paid, or if it be not averred that the other 5 s. was paid at the day limited for the pay∣ment of it, the party hath failed in his assumption in the one case, and the de∣claration is insufficient in the other case, for he hath made a departure from his consideration: But if one of the considerations be impossible, or against Law, there the other considerations which are possible, or stand with the Law suffice if they he well alledged. And he said, that the Executor shall be charged with the contract of the Testator by common course of the Court, which stands upon reason, for if an Action of Debt upon a bare contract be brought against an Executor, if he do not demur upon it but plead to the Pa••s, that he owes him nothing, and it is found against him, he shall be the•• by char∣ged of the Goods of the dead; and the cause why he may be helped by demur∣ring upon the declaration in that case, is, bec••use the Testator might have waged his Law in that case of debt, which the Executor could not do of other contracts, and therfore shall not be charged with it by such an act, if he will help himself by demurrer; but in ••he assumption of his Testator, he could not have waged his Law: and it is founded upon the death of the Testator, to wit, his debt, with which the Executor by a mean may be charged as be∣fore, and therfore the assumption in such a c••se maint••inable against the Exe∣cutor. But if the Testator upon good consideration assume to make assu∣rance of Land, or to do any other such collaterall thing which doth not sound in a duty of a thing payable, there the Executor sh••ll never be charged with such an assumption to render recompence for it. And to this agreed all the Iu∣stices •••• the common Bench, and Barons of the Exchequer; And such an as∣su••••••ion hath not been allowed in the Kings Bench but of late time, and th•••• but 〈…〉〈…〉 or two cases. But in the other case it hath been common and of 〈…〉〈…〉, and therfore now too late to be drawn in question; and if it should ••••, it may be maintained with good reason in this case of a duty of ••••ing payable, in as much as the Testator cannot wage his Law in the A∣ction, but in the other case there is no reason nor course of the Court to main∣tai•• it: But the Iudges in the Exchequer Chamber reversed all these Iud∣ments in both cases.

2. Nota, that this Term was adjourned to Octob. Trin. and because the Writ was, that Adjournment shall be made in Octob. Trin. of all cases, un∣till Tres Trinitat. the Adjournment was made in every of the Courts of Kings Bench, Common Bench, and the Exchequer, the very first day of Octob. Trin. then it was holden by the Iustices, that the Adjournment ought not to have been made untill the sitting of the Court the fourth day from Octabis.

And because that the Writs were, that at the said Tres Tr. the Term shall be holden therafter, as if no Adjournment had been, the Iustices held that they ought to sit the first day of the said Tres Trin. and so from thence every day untill the end of the Term, and for all causes, as if no adjournment had been; and so they did accordingly, saving by assent some of the Iustices did not come thither by reason of their far distance from London, at the end of the Term upon the last Adjournment: But they held, that if it had not been for the especiall words in the Writ, which were, that it shall be then holden as if no Adjournment had been, the Ess••ines had been the first day of Tres Trin. and the full Term had not been untill the fourth day, which was the last day of the Term, quod nota, and so it was of the Adjournment which hap∣ned first at Westminster, and afterwards at Hertford from Michaelmas Term now last past.

Michaelmas Term 35 and 36 Eliz. Gravenor versus Brook and others.

1. IN an Ejectione firmae by Edward Gravenor Plaintiff, against Richard Brook and others Defendants, the case appeared to be this; Henry Hall was seised in his Demesne as of Fee, according to the custom of the Mannor of A. in the County of D. of certain customary Tenements holden of the said Mannor called Fairchildes and Preachers, &c. In the third year of Henry the 8th. (before which time the customary Tenements of the said Mannor had alwaies been used to be granted by Copy of Court Roll of the said Mannor in Fee-simple, or for life or years, but never in Fee-tail but then) the said Henry Hall surrendred his said Copy-hold Land, to the use of Joane his eldest Daughter for her life, the remainder to John Gravenor the eldest Son of the said Joane, and to the Heirs of his body, the Remainder to Henry Gravenor her other Son, and the Heirs of his body, the Remainder to the right Heirs of the said Henry Hall for ever; wherupon in 3 H. 8. at the Court then there holden, a grant was made by Copy of Court Roll accord∣ingly, and Seisin given to the said Joane by the Lord accordingly.

Henry Hall died, having Issue the said Joane and one Elizabeth, and at the Court holden within the said Mannor, 4 H. 8. the death of the said Henry Hall was presented by the Homage, and that the said Daughters were his Heirs, and that the Surrender made as before was void, because it was not used within the said Mannor to make Surrenders of Estates tails, and ther∣upon the said Homage made division of the said Land, and limited Fairchilds for the purparty of the said Joane, and Preachers for the purparty of the said Elizabeth, and Seisin was granted to them accordingly.

Elizabeth died seised of her said part, after which 33 H. 8. Marga∣ret her Daughter was found Heir to her, and admitted Tenant to this part; after which Joane dyed seised of the said Tenements as the Law will.

And after the said Margaret takes to Husband one John Adye, who with his said wife surrendred his said part to the use of the said John Adye and of his said wife, and of their Heirs; and afterwards the said Margaret died without Issue, and the said John Adye held the part of his said wife, and surrendred it to the use of the said Richard Brook, and of one John North, and their Heirs who were admitted accordingly, after which, the said John Gra∣venor died without Issue, and now the said Henry Gravenor was sole Heirs to him, and also to the said Henry Hall who had Issue Edward Gravenor, and dyed, the said Edward entred into the said Lands called Preachers, and did let it to the Plaintiff, upon whom the said Richard Brook and the other Defen∣dants did re-enter and eject him. And all this appeareth upon a speciall Verdict.

And by Clench and Gawdy, an Estate tail cannot be of Copyhold Land, unlesse it be in case where it hath been used, for the Statute of Donis con∣ditionalibus shall not enure to such customary Lands, but to Lands which are at common Law, and therfore an Estate tail cannot be of these customary Lands, but in case where it hath been used time out of mind, and they said, that so it hath been lately taken in the Common Bench; But they said, that the first remainder limited to the said John Gravenor here upon the death of the said John, was a good Fee-simple conditional, which is well warrantes by the custom to demise in Fee, for that which by custom may be demised of an Estate in Fee absolute, may also be demised of a Fee-simple conditio∣nall, or upon any other limitation, as if I. S. hath so long Issue of his body, and the like, but in such a case no Remainder can be limited over, for one Fee cannot remain over upon another, and therfore the Remainder to the said Henry was void: But they said, that for all the life of the said John Gra∣venor, nothing was in the said Elizabeth which could descend from her to the said Margaret her Daughter, or that might be surrendred by the said Marga∣ret and her Husband, and therfore the said Margaret dying without Issue, in the life time of the said John Gravenor who had the Fee-simple conditio∣nall, nothing was done which might hinder the said Edward, Son to the said Henry Gravenor of his Entry, and therfore the said Plaintiff ought to have his Iudgment to recover, for they took no regard to that which the Ho∣mage did, 4th. year of Hen. 8.

But Fennor and Popham held, that an Estate tail is wrought out of Copy∣hold Land by the equity of the Statute of Donis conditionalibus, for other∣wise it cannot be that there can be any Estate tail of Copyhold Land, for by usage it cannot be maintained, because that no Estate tail was known in Law before this Statute, but all were Fee-simple, and after this Statute it cannot be by usage, because this is within the time of limitation, after which an usage cannot make a prescription, as appeareth 22 & 23 Eliz. in Dyer: And by 8 Eliz. a Custom cannot be made after Westm. 2. And what E∣states are of Copyhold land, appeareth expresly by Littleton, in his Chapter of Tenant by Copyhold, &c. And in Brook Title, Tenant by Copyhold, &c. 15 H. 8. In both which it appeareth that a Plaint lyeth in Copyhold Land in the nature of a Formedon in the Descender at common Law, and this could not be before the Statute of Donis conditionalibus for such Land, because that before that Statute there was not any Formedon in the Descender at common Law, and therfore the Statute helps them for their remedy for in∣tailed Land which is customary by equity: Add if the Action shall be given by equity for this Land, why shall not the Statute by the same equity work to make an Estate intail also of this nature of the Land? We see no reason to the contrary; and if a man will well mark the words of the Statute of Westm. 2. cap. 1. he shall well perceive that the Formedon in Descender was not before this Statute, which wills that in a new case a new remedy may be given, and therupon sets the form of a Formedon in Descender: But as to

the Formedon in the Reverter, it is then said, that it is used enough in Chan∣cery, and by Fitzherbert in his Natura brevium, the Formedon in the Des∣cender is founded upon this Statute, and was not at Common Law before; And the reason is, because these Copyholds are now become by usage to be such Estates that the Law allows them to be good against the Lords them∣selves, they performing their Customs and Services, and therfore are more commonly guided by the guides and rules of the common Law, and therfore as appeareth in Dyer, Tr. 12. Eliz. Possessio fratris, of such an Estate, facit so∣rorem esse haeredem. And to say that Estates of Copyhold Land are not war∣ranted but by custom, and every Custom lies in Vsage; and without Vsage a Custom cannot be, is true, but in the Vsage of the greater the lesser is al∣waies implyed: As by Vsage, three lives have been alwaies granted by Copy of Court Roll, but never within memory, two, or one alone, yet the grant of one or two lives only is warranted by this Custom, for the use of the greater number warrants the lesser number of lives, but not è converso: And so Fee-simples upon a Limitation. or Estates in tail are warranted by the equity of the Statute, because they are lesser Estates then are warran∣ted by the Custom, and these lesser are implyed as before in the greater, and none will doubt but that in this case the Lord may make a Demise for life, the Remainder over in Fee, and it is well warranted by the Custom, and therfore it seems to them that it is a good Estate tail to John Gravenor, and a good Remainder over to Henry his Brother, and if so, it follows that the Plaintiff hath a good Title to the Land, and that Iudgment ought to be gi∣ven for him. And for the dying seised of Elizabeth, they did not regard it, for she cannot dye seised of it as a Copyholder, for she had no right to be Co∣pyholder of it: And by the dying seised of a Copyholder at common Law, it shall be no prejudice to him who hath right, for he may enter; But here in as much as she cometh in by admittance of the Lord at the Court, her Occu∣pation cannot be fortious to him, and therfore no descent at common Law by her dying seised, for it was but as an Occupation at Will. But if it shall not be an Estate tail in John Gravenor, as they conceive strongly it is, yet for the other causes alledged by Gawdy and Clench, Iudgment ought to be gi∣ven for the Plaintiff, and the Remainder which is not good shall not preju∣dice the Fee-simple conditionall granted to John, which is no more then if the Surrender had been to the use of Iohn Gravenor and his Heirs, the Re∣mainder over, because that we as Iudges see that this cannot be good by Law, and therfore not to be compared to the case where the Custom war∣rants but one life, and the Lord grants two joyntly or successively, there both the one and the other is void: And this is true, because the custom is the cause that it was void, and not the Law, and also it is a larger Estate then the Custom warrants, which is not here, and upon this Iudgment was gi∣ven that the Plaintiff shall recover.

And by Popham, it hath been used, and that upon good advice in some Ma••∣nors, to bar such Estates tails by a common Recovery prosecuted in the Lords Court, upon a Plaint in nature of a Writ of Entry in the Post.

2. JUlius Cesar Iudge of the Admiralty Court, brought an Action upon the Case for a Slander against Philip Curtine a Merchant-stranger, for say∣ing, that the said Cesar had given a corrupt Sentence; And upon not guilty pleaded, and 200. marks Damages given, it was alledged in arrest of Iudg∣ment, where it was tryed, by Nisi prius at the Guildhall by a partiall Inquest, because that upon the default of strangers, one being challenged and tryed out, a Tales was awarded De circumstantibus by the Iustice of Nisi prius; wheras (as was alledged) a Tale could not have been granted in this case, for the Statute of 35 H. 8 cap. 6. which give the Tales is to be intended but of commontryals of English, for the Statute speaks at the beginning but of such

Iuries, which by the Law eught to have 40 s. of Free-hold, and wills that in such cases the Venire facias ought to have this clause, Quorum quilibet ha∣beat 40 s. in terris, &c. which cannot be intended of Aliens which cannot have Free-hold: And it goes further that upon default of Iurors, the Iustices have authority at the Prayer of the Plaintiff or Defendant, to command the She∣riff or other Minister to whom it appertaineth to make a return of such other able persons of the said County, then present at the same Assises or Nisi prius which shall make a full Iury, &c. which cannot be intended of Aliens but of Subjects, and therfore shall be of tryals which are onely of English, and not of this Inquest which was part of Aliens.

And further the Tales was awarded only of Aliens, as was alledged on the Defendants part, but in this point it was a mistake, for the Tales was a∣warded generally de circumstantibus, which ought alwaies to be of such as the principall Pannell was. But Per Curiam the exceptions were disallow∣ed, for albeit the Statute is, as hath been said, yet when the Statute comes to this clause, which gives that a Tales may be granted by the Iustices of Nisi prius, and is generally referred to the former part of the Act, for it is ad∣ded; Furthermore be it enacted, that upon every first Writ of Habeas Cor∣pora, or Distringas with a Nisi prius, &c. the Sheriff, &c. shall return upon every Juror 5 s. Issues at the least, &c, which is generall of all: And then it goes further, And wills, that in every such Writ o•• Habeas Corpora, or Di∣stringas with a Nisi prius where a full Jury doth not appear before the Ju∣stices of Assise, or Nisi prius, that they have power to command the Sheriff, or other Minister to whom it appertains, to nominate such other persons as before, which is generall in all places where a Nisi prius is granted, and ther∣fore this is not excepted neither by the Letter nor intent of the Law. And where it is said (such persons) by it, is to be intended such as the first, which shall be of Aliens, as well as English, where the case requires it, for expe∣dition was as requisite in cases for, or against them, as if it were between other persons. And Aliens may well be of the County or place where the Nisi prius is to be taken, and may be there: for although an Alien cannot purch••se Land of an Estate of Free-hold within the Realm, yet he may have a house for habitation within it, for the time that he is there, albeit he be no Denison, but be to remain there for Merchandise, or the like: And by Gawdy, where the default was only of strangers, the Tales might have been awarded only of Aliens, as where a thing is to be tryed by Inquest within two Counties, and those of the one County appear, but not those of the other, the Tales might be of the other County only.

Davies versus Gardiner.

3. AN Action upon the case for a Slander was brought by Anne Davies a∣gainst Iohn Gardiner; That wheras there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock, the Defendant to the intent to hinder the said Marriage, said, and published, that there was a Grocer in London that did get her with Child, and that she had the Child by the said Grocer, wherby she lost her Marriage. To which the Defendant pleaded not guilty, and was found guilty at the Assises at Ayles∣bury to the Damages of 200. marks: And now it was alledged in Arrest of Iudgment, that this matter appeareth to be meerly spirituall, and therfore not determinable at common Law, but to be prosecuted in the spirituall Court. But per Curiam the Action lies here, for a woman not maried can∣dot by intendment have so great advancement as by her Marriage, wherby she is sure of maintenance for her life, or during her Marriage, and Dower and other benefits which the temporall Laws gives by reason of her Marri∣age,

and therfore by this slander she is greatly prejudiced in that which is to be her temporall advancement, for which it is reason to give her remedy by way of Action at common Law: As if a woman keep a Victualling house, to which divers of great credit repair, wherby she hath her livelyhood, and one will say to her Guests, that as they respect their credits, they take care how they they use such a house, for there the woman is known to be a Bawd, wher∣by the Guests avoid her house, to the losse of her husband, shall not she in this case have an Action at common Law for such a slander? It is cleer that shee will. So, if one saith, that a woman is a common Strumpet, and that it is a slander to them to come to her house, wherby she looseth the ad••antage which she was wont to have by her Guests, she shall have her Action ••or this at com∣mon Law.

So here upon these collaterall circumstances, wherby it may appear that she hath more prejudice then can be by calling of one Harlot, and the like.

And Iudgment was given for the Plaintiff.

Hillary Term, 36 Eliz. in the Kings Bench.

IN Michaelmas Term, 33, & 34 Eliz. Rot. 181. William and Joane his wife, Administratrir of Andrew Stock, brought an Action upon the Case upon an Assumpsit, made to the Intestate for the payment of 5 l. to William Stock, who imparled untill Tuesday next after, Octa. Hillary next, which was the 24th. day of January, and then the Defend••nt demanded Oyer of the Letters of Administration which were entred, in haec verba.

Wherby it appeareth that the Letters of Administration were committed to the said Joane by Thomas Taylor Batchelor of Law, Commissary to the Bi∣shop of London, &c. wherby the Defendant pleaded, that after the last con∣tinuance, ••he said Letters Patents of Administ••ation, sealed with the Seal of the Vicar Generall of the said Bishop, which he useth in this behalf, and brought here into Court, bearing date the 27th. day of January 1591. which was three daies after the continuance, committed the Administration to the said Defendant. And pleaded further the Act of 37 H. 8. which sayes, that it shall be lawfull hereafter for any person, being a Doctor of the Law, to be Chancellor, Commissary, or to exercise Ecclesiasticall Iurisdiction, albeit he were a meer Lay person, so that such a person be a Doctor as aforesaid, and avers, that at the time of the committing of the Administration to the said Joane, the said Thomas Taylor was a meer Lay person, and not Doctor Legis civilis nec minister allocatus, according to the Laws of the Church of England, wherby he had no lawfull power to commit the Administration.

Vpon which it was demurred generally, and by all the Court the Plain∣tiff had Iudgment to recover; for we are to consider what our Law was in this case before this Statute of 37 H. 8. And albeit a Doctor then affirmed, that the Canon Law was, that there was a meer nullity in such Administra∣tion, so although the party that did it, not being a Clark nor Doctor, accord∣ing to the Stat. of 37 H. 8. yet all the Iustices agreed, that the Administra∣tion so committed will be adjudged in our Law to be of force and effect, being shewn under the Seal of the Officer and committed by him, who is reputed the Officer, who ought to do it, and is invested in the Office untill it be a∣voided by sentence, and yet such an avoidance shall not make a mans act to be made void, no more then if a meer Lay-man be presented to a benefice, albeit this be a meer nullity in our Law, and void, yet we adjudge the Church full, according to the publike admission, constitution and induction, and not according to the capacity of the person, which is a thing secret, untill such a one be deprived for it by sentence in the spirituall Court, and yet the Church shall be in our Law void but from the time of deprivation, of which notice ought to be given to the Patron.

So here, he remains as to our Law an Officer untill his authority be defea∣ted by sentence of the spirituall Court, otherwise great mischief will happen; for an infinite number of Administrations may be drawn in question by A∣verment, that he, who granted them was a meer lay person, and so make such Garboils in the Common-wealth, which is not to be suffered for the in∣conveniency which will happen by it; and therfore our Law which is foun∣ded upon reason shall judge of it according to the open appearance of the Of∣ficer, to wit, that he hath a grant made to him, and not according to the private capacity of the person, and this is not altered by the said Statuts which is made in affirmation of it, and makes the authority of a Doctor of Law absolute, not to be defeated by the Civill or Canon Law, which is not in the other case: But yet it doth not make this case of worse condition then it was at Common Law. And by all the pleading of the Administration com∣mitted to the Defendant, is not good, because it appeareth by the date of it, that it was made after the day of the last continuance, and therfore could not have been pleaded untill a new continuance after: And by the Doctor the last Administration does not avoid the first, but in case where there is an espe∣cial revecation of the first: But they did not speak of the doublenesse because the Demurrer was generall and not speciall, and also because the other mat∣ters were so cleer.

2. IN Trespasse for carrying away certain Loads of Hay, the case hapned to be this; The Plaintiff pretending Title to certain Hay which the de∣fend▪ had standing in certain Land, to be more sure to have the Action passe for him, took other Hay of his own (to wit, the Plaintiff) and mixed it with the Defendants Hay, after which the Defendant took and carried away both the one and the other that was intermired, upon which the Action was bought, and by all the Court cleerly the Defendant shall not be guilty for any part of the Hay, for by the intermirture (which was his own act) the Defendant shall not be prejudiced as the case is, in taking the Hay. And now the Plaintiff cannot say which part of the Hay is his, because the one cannot be known from the other, and therfore the whole shall go to him who hath the property in it with which it is intermired, as if a man take my Garment and Em∣broider it with Silk, or Gold, or the like, I may take back my Garment, But if I take the Silk from you, and with this, face or embroider my Gar∣ment, you shall not take my Garment for your Silk which is in it, but are put to she Action for taking of the Silk from you.

So here, if the Plaintiff had taken the Defendants Hay and carried it to his house, or otherwise, and there intermired it with the Plaintiffs Hay, there the Desendant cannot take back his Hay, but is put to his Action a∣gainst the Plaintiff for taking his Hay. The difference appeareth, and at the same day at Serjeants Inne in Fleetstreet, the difference was agreed by Anderson. Pe••iam, and other Iustices there, and this case was put by Ander∣son: It a Goldsmith be melting of Gold in a Pot, and as he is melting it, I will cast Gold of mine into the Pot, which is melted together with the other Gold, I have no remedy for my Gold, but have lost it.

Bullock versus Dibler.

3. IN an Ejectione firmae between Edward Bullock Plaintiff, and John Dib∣ler De••endant, the case appeared to be this; A man was seised of a Co∣pyhold Ten••••ent, p••rcell of the Mannor of Stratfield Mortimer, the County of Berks, in right of his wife, in his Demesne as of Fee, and surrendred this Copy bold Tenement by himself without his wife, to the use of a stranger in Fee, who was 〈◊〉〈◊〉 by the Lo•••• accordingly, the Husband dies, the wife

dies, the Heir of the wife without any admittance enters upon the stranger, and makes a Lease for a year to the Plaintiff, upon whom the Defendant in right of him to whom the Surrender was made, re-enters, and adiudged that the Plaintiff ought to recover, and that the surrender of the Husband was not as a discontinuance against the wise, to put the Heir to his Plaint in nature of a Sur Cui in vita, for a Discontinuance shall not be by a Deed of Feement only, but by it with the Livery ensuing, wherby the entire Fee-simple is given, what Estate so ever the Feoffor had by reason of the Livery, where by Deed of Grant nothing passed but that which the party might law∣fully grant: And here it shall be taken as if the Grant had been made by the Husband which passed but his Estate, to wit, that which he might lawfully grant without prejudice to his wife. But yet there is this diversity be∣tween a surrender of an Estate for life, and a surrender of an Estate in Fee to the use of a scranger, to wit, that by the one the Estate drowned in the Lord by the surrender, and by the other it is not drowned in the Lord, but is transferred to him to whom it was made, upon which he is admitted to it; otherwise, in the last case it returns to him who surrendred, and then upon the admittance he is in the Per by him who surrendred, and not by the Lord, or by the Surrender made by Tenant for life, he to whose use it is made ought to take it of the Lord, and he is there in by him, and not by him who surrendred.

And this is the common difference betwixt Customary Estates for lives, and Customary Estates of Inheritance.

And the Plaint of Cui in vita is given where recovery by default is against the husband and wife, and not upon the surrender of the husband; for suppose the husband had surrendred meerly to the Lord himself, yet the wife might have entred after the death of the husband, because the surrender goes but to the Estate which the husband might lawfully part with, and therfore ra∣ther to be resembled to a Grant then to a Feoffment.

And notwithstanding that he was not admitted, yet he might enter and take the profits, and make a Lease according to the custom, or bring an A∣ction of Trespasse against him who disturbes him? But if the Lord require his Fine or his Services, and the Heir refuse to do them, this may be a for∣feiture of his Copyhold; But untill lawfull Seisin made by the Lord (be∣cause it belongeth to him) the Heir may intermeddle with the Possession, albeit he be not admitted by the Lord where it is an Estate of Iuheritance by the Custom.

And in this Term also in another case, in the same Court it was adjud∣ged. that an Infant who surrenders his Copyhold Land within age, may enter at his full age, without being put any Suit for it.

And the first case was very well argued by one Brock, a Puny utter Barister of the Inner-Temple, this Term for the Plaintiff. And it was the first De∣mur that he argued in Court.

Forth versus Holborough.

4. IN an Action of Debt upon an Obligation of 200. marks brought by Ro∣bert Forth Doctor of Law, and Mary his Wife, as Executrix to Doctor Drewry, against Richard Holborough, the Case upon Demurrer appeared to be this; to wit, That the said Dr. Drewry was seised in his Demesne as of Fee, of the Suit of the Mannor of Goldingham Hall in the County of Es∣sex, and so seised the last day of Novemb. 27 Eliz. demised it to the said Richard Holborough for 17. years from the said last day of Novemb. wherby the De∣fend••nt antred into it the next day, and was therof possessed accordingly, and so possessed the last day of Novemb. 28 Eliz. entred into an Obligation to the said Dr. Drewry, with condition, that if he, his Heirs, Executors, Admini∣strators

and Assignes, or any of them should well and truly pay or cause to be paid to Dorothy Goldingham widow, or her Assigns, at the Mannor-house of Goldingham Hall in the County of Essex, for the Term of 17. years, from the Feast of S. Michael the Arch-angel then last past, or an Annuity or annu∣all Rent of 20. marks of lawfull English money, at the Feast of the Annun∣ciation of our Lady, and S. Michael the Arch-angel, by equall portions, if the said Dororhy shall so long live, and the said Richard Holborough, or his As∣signs, or any other claiming by, or under the said Richard, or his Assigns, shal or may so long occupy or enjoy the said Scite of the Mannor of Goldingham Hall, that then the Obligation shall be void; after which untill the 9th. day of May, 29 Eliz. the Defendant enjoyed the said Scite, and paid duly the said Annuity, and then he surrendred his Estate in the said Scite to the said Dr. Drewry, and after this did not pay the Annuity over, and yet continued the possession of the said Scite.

And by all the Iustices the Defendant notwithstanding the Surrender made to the Obligee himself, ought to have continued the payment of the Annuity to the said Dorothy, for albeit the Term be drowned, and merged in the Reversion, and so hath no continuance as to him in the Reversion, yet as to any thing heretofore done by the Defendant who was the Termor in Iudgment of Law, it is to be said to have continuance: As if he had granted a Rent-charge out of it to have continuance during the said Term, although he surrender his Term to him in the Reversion, yet the charge con∣tinues, and as to it, the Reversion shall be said to be in the Termor, and albeit the Obligee himself shall not take advantage of his own, or to have the advantage of the forfeiture of an Obligation there, where his own act is the cause of his breach.

And if it had been, that the said Dorothy during the said Term shall have the use of a Chamber within the Scite, without the interruption of him, or his Assigns, there, if after the Surrender, the said Dorothy Drewry had in∣terrupted him of the use of the said Chamber, the forfeiture of the Obliga∣tion shall not be taken against the Defendant for it.

But here the Condition is of a collaterall thing to be done, to wit, the payment of the Annuity to a stranger, with which the Land is not bound, and therfore the breach comes meerly in default of the Obligor, and of the Obli∣gee in no part, to wit, and therfore the Obligation here is forfeited.

And by Popham, the case here is more cleer upon consideration of the words of the Condition, for the words are, I the Defendant shall, or may en∣joy, &c. and this word (may enjoy) shall be alwaies intended reasonably, to wit, if it may without any thing to be done by him to the contrary; and here if he had not made the Surrender, he might have enjoyed the Scite un∣till the end of his Term, and therfore because it cometh of his own act, wher∣by he, or his Assigns shall not enjoy it for the Term, if it shall be said, that he in the Reversion shall not be said in, by the Termor of which he himself shall not take any advantage, in as much as if this had not been, he might have enjoyed for the whole Term. To which all the other Iustices also a∣greed, and upon this Iudgment was given for the Plaintiff.

But if any had defeated the said Term by a lawfull entry, by a Title Par∣amount, the Obligation had not been forfeited for any default of payment af∣ter this Entry, but if Rent had been reserved upon the Lease, and for de∣fault of payment, a Re-entry had been made, yet by Popham the payment ought to be continued upon the perill of the forfeiture of the Obligation, for the words (may enjoy) in as much as there it is the meer default of the Defendant himself, there the Lease does not continue, of which he shall not take advantage to save his Obligation. But note the form of the Demur∣rer, and that it might have been been better ioyned, which is to be seen in the Record where it is entred.

Easter Term 36 Eliz. Geilles versus Rigeway.

IN debt for 306. l 6. s. 8 d. by William Geillies, against Thomas Rigeway Esq late Sheriff of Devon; For that wheras John Chaunder alias Chaun∣deler, was in execution with the said Sheriff for the said summ, the said Sheriff afterwards, to wit, the tenth day of December, 34 Eliz. at London, in such a Parish and Ward suffered him to escape, the said Rigeway then being Sheriff of Devon, and having him then in execution, &c. To which the Defendant pleaded, how that he took him in Execution by the Proces at Stockram in the County of Devon, as the Plaintiff hath alledged, and there detained him in safe custody untill the 8th. day of December, 34 Eliz. at which day the said Chaundeler broke the Prison, and escaped out of it contra∣ry to the will of the said Defendant, and that the Defendant did freshly pur∣sue him, and in this fresh pursuit did re-take him the 11th. day of December, then next ensuing at Stockram aforesaid, and detained him in execution for the said 306 l. 6 s. 8 d. during the time of his Office, and delivered him ever to the new Sheriff, &c. To which the Plaintiff replyed by protestation, that he did not make fresh pursuit; And for plea saith, That after the going a∣way of the said Chaundeler, and before his re-taking by the said Defendant as aforesaid, the said Chaundeler for a whole day and night, to wit, at Lon∣don, in the Parish and Ward aforesaid, was out of the view of the said Defen∣dant, &c. Vpon which it was demurred in Law.

And it was moved by Cook Attorney-generall, that Iudgment ought to be given for the Plaintiff; for, in as much as it was alledged, that he was out of the view of the Sheriff for a day and a night together, there it shall be in∣tended to be a default in the Defendant in the making of his pursuit, and ther∣fore chargable to the Plaintiff, and yet he agreed, that if the Sheriff had made his pursuit freshly; although that at the turning of a Lane, end of a house, or the like, the Prisoner had been out of the view of the Sheriff for a small time, as untill the Sheriff commeth to this turning, end of the house, or the like, yet the Sheriff may re-take the Prisoner, and he shall be yet said to be in execution to the party against his will, yet when he is for so long a time out of his view, it shall be otherwise, for the default which the Law presumes to be in him; and therfore in this case the action lies. To which it was answered by Popham, Gawdy, and Clench, That if he makes fresh pur∣suit, so that it doth not appear fully that there was a default in the Sheriff in his pursuit, although he were so long out of his view, yet he shall be said to be in execution for the party against his will upon the retaking of him: As if be be pursued to a house where he is kept for a long time, and the Sheriff set a guard upon the house, and after this re-take him the next, or any other day without departing from thence, the Sheriff in such a case may re-take him up∣on his coming out of the house, and he shall be in execution to the party a∣gainst his own will.

And so in all like Cases; As if he pursues him in the night, so as he can∣not see him, and yet by the tract of the horse, or enquiry he makes diligent pursuit to re-take him, so that it cannot appear that there was any negli∣gence or default in him in making pursuit.

And it is not the form of the pleading to alledge, that he pursued him fresh∣ly, and had him alwaies in his view untill he re-took him, but only that he pursued him freshly and took him in this fresh pursuit, without saying any thing that he was in his view, and therfore his being out of the view of the Sheriff is not materiall in the case, but the fresh pursuit, and the taking of him in this pursuit.

Then Coke moved, that the Bar was not good, because he doth not shew where he made the pursuit, so that he might agres to answer that which is alledged by the Plaintiff, to wit, his being at large at London, and ther∣fore the Bar not being good, Iudgment shall be given against the Defen∣dant for the insufficiency of his Bar: for a Repleader shall not be in case of Demurs, as it hath been adjudged here very lately, and also in the Common Bench.

To which it was answered by the said Iustices, That if the Bar be insuffi∣cient in matter, so that it may appear by it, that the Plaintiff hath sufficient cause of Action, which in matter is not sufficiently avoided by the Bar, Judg∣ment shall be given for the Plaintiff upon the Bar, if the Replication be suffi∣cient, and no Repleader; but if the Bar be sufficient for the matter and insuf∣ficient for the form only, as it is here, there before the Statute of Eliz. for pleading there shall be a Repleader, but now because no Demurrer was upon the Bar, but a Replication made to it, therfore by Popham no advan∣tage shall be taken of the Bar for matter of form, which is admitted by the party, and no advantage taken therof according to the Statute.

And they all agreed, that the Sheriff, albeit he did not make fresh pursuit upon the escape, may yet take, re-take the Prisoner who escaped from him out of Execution, for the Prisoner shall not take advantage to avoid the Exe∣cution; and therfore in respect of the Plaintiff, who yet may accept the Pri∣soner to be in execution, the Sheriff may re-take the Prisoner. But if the Plai. had recovered against the Sheriff before for the escape, then the She∣riff for his Indempnity cannot re-take him, but is put to his Action upon the Case against the Prisoner, for the Sheriff hath no colour in such a case of es∣cape to retake him, but in respect, and for the advantage of the Plaintiff, who had Iudgment against the Prisoner, and not in respect of the private wrong done to himself, of which he hath no Iudgment, and as it is now, the Repli∣cation not being good (by Popham) Iudgment ought to be given against the Plaintiff. But by assent it was ordered that the Defendant shall put in new Bail, and that upon it, he shall plead anew; But how shall it be if the She∣riff do notmake fresh Suit and re-take him? And afterwards he, at whose Suit he was in Execution recovered against the Sheriff; may the Prisoner have an Audita querela upon the matter?

Vpon an Assembly of all the Iustices at Serjeants-Inn in Fleetstreet, with the Barens of the Exchequer, it was cleerly agreed by them all (but two, who at the beginning made some doubt of it, but at the end assented also.)

If in the night, the house of any be broken, with an intent to steal any thing being in the house, although no person be in the house at this time, yet this is Burglary, for the Law is, that every one shall be in security in the night, as well for their Goods as their persons which be in the house.

And if a Church be broken in the night for the stealing of any thing in it, this is Burglary, though no person be in it at this time. And so hath the Law alwaies been put in execution, and in all the Books which speak of Burgla∣ry, it is not mentioned that any person ought to be in the house, but that it is Burglary, the Messuage being ••eck••n in the night, to the intent to kill any person th••••e, or to the intent to steal any thing out of it.

And the case that of late time it hath been put in the Inditements of Bur∣glary, that some person was then there, &c, hath been, because that in such cases of Burglary, Clergy was taken away, but now by the Statute of 18 Eliz. Clergy is taken away in every case of Burglary.

And the ancient Presidents are, Quod domum of such a one Nectanter Fe∣lonice & burglariter fregit, without making mention that any person was then in it, or making mention that it was Domus mansionalis of any: And it may be a Mansion House, albeit no person then inhabit in it. And agreed

that hereafter it shall be so put in execution by all the Iustices. See this more fully hereafter, Trin. 36 Eliz. Pl. 1. in this Book.

AT Tres Paschae this Term there were made for Serjeants at Law; viz. Lewkenor, Savage and Williams of the Middle-Temple, Heale only of the Inner-Temple, Kingsmill, Warburton, Branthwaite, and Flemming of Lincolns-Inn, and Daniel and Spurling of Grayes-Inn.

And all the Iustices were assembled in the Middle-Temple Hall, the Wed∣nesday past M••nsem Paschae, being the second day of May, where the two chief Iustices, and chief Baron sate upon the Vpper-Bench of the same Hall, in their Scarlet Robes with their Collers of S. S. and every one of the o∣ther Iustices and Barens in their Ancienty, one on the one side, and the o∣ther on the other side in their Scarlet Robes also, and then came the new Serjeants in their black Gowns before the Iustices there, the two eldest be∣ing put in the midst before the chief Iustice of England, and so every one of them, one on the one side, and the other on the other side, according to their Ancienty, and every one of the said Serjeants having one of his Servants behind him at his back, with his Masters Scarlet Hood and Coife upon his arms: And therupon the said chief Iustice made his Speech in this manner.

IF men will enter into a due consideration upon what grounds the Laws of this Realm have their Original Foundation, and what good effects are wrought through the due execution of the same they might say, and that just∣ly, that the profession therof is both an honest, and honourable Profession.

The Laws are derived partly from the law of God and partly from the Law of Nature. From the Law of God, in that it ordaineth means how the people may be truly instructed in the knowledge and fear of God: How they should demean themselves towards their Soveraign and Prince: How they ought to live one with the other, and how to be defended from oppressions and in∣juries. From the Law of Nature, in that it provideth how each man may de∣fend himself, that he may live by his own labours, or otherwise according to his profession or calling; That he may secure his Posterity of that which he hath gathered together by his industry, and that man with man may live to∣gether in such secure and comfortable Society as appertaineth. And what be the effects which grow by the due execution of the Laws? They are these.

By it, God is known, the Soveraign Prince obeyed, the people are kept to live in peace, and that is yeilded to each which is his due: And can there be any better things then these upon the face of the Earth? No, there cannot. The Law therfore being taken from so good a ground, and working such no∣table and honourable effects, who can justly say otherwise, but that the pro∣fession of such a Law in an honourable profession? Are not the Judges of the Law professors of the Law? See then what God himself in his word hath said of Judges in Psal. 82. speaking of Judgment and Justices he saith thus; I have said yee are Gods, and can there be any higher name then this in Heaven or Earth? And why are they so learned? but for that, they in their Offices do re∣semble that which is the Office of God, as to discern so far forth as mans ca∣pacity can reach unto between right and wrong, truth and falshood, the just and the unjust, which is a most high, weighty and honourable charge, and therfore 2 Chro: 196. cha. Jehosophat said to the Judges, Take heed what you do, for you do not execute the Judgments of men, but of the Lord, and He will be with you in Judgment. By which it is evident, that they are either grosly ignorant, or otherwi••e very malignant and con••emptuous persons that may not be in∣duced to be reformed, that do in any wise hold the profession to be either base or contemptible.

And this I may truly say to the encouragement and comfort of such as be∣ing honest do profess the Law: That in the most parts of England there are more Gentlemens houses, and those of continuance raised and advanced by that profession alone, then by all other the professions that can be spoken of, and approved,.

Let any man of Experience in the State, of the generall part of the Realm enter into a due consideration of it, and I am well assured he shall find it so; wherby it may plainly appear, that Gods blessings for worldly benefits have greatly abounded towards such as have walked evenly and justly in that cal∣ling: yet happily there may be some (I mean such as slip in by extraordina∣ry means) that somtime do give scandall to the Profession; as where such are called to the Degrees of Learning, as are either ignorant, or infamous persons, wherby they either cannot advise as they should, or by giving them∣selves over to slights and to shifts, they do not advise as they ought.

A matter abhorred of all good and honest men: But the same being duly weighed, tendeth to the touch of the person, and not of the Profession. Nevertheless to avoid this Scandall, I would advise;

1. Such as have Government in these houses of Court, should be very care∣full and respective in their Calls, not only to the bench as Readers, but of those also whom they call to the Bar, that they may be such as may appear to be both learned, and honest, and such as may not justly be impeached of Ignorance, or Ignominy; for such are not only to advise between parties, but many of them are drawn to Credit and Government also in their Coun∣tries, and therfore behoofull to be free from such Imputations.

And sithence without the knowledge of the Law in some measure, such as govern in their Countries, may often fall to commit such Errors as were to be wished might be otherwise.

It were convenient that Gentlemen, yea, those of best worth would bring up their very heirs in the knowledge of the Laws, as that they might in after ages, when as they shall be called to Government, be so able to govern under her Majesty as might best stand with their Reputations, and the good of their Countries.

And now your selves that are here present, and have been called to this State and Degree of Serjeants at Law (a State and Degree I may well call it, for that her Majesty doth so term it) Since your gravities and your good conver∣sations in your callings hither-to, and the good opinion conceived of your Learnings, Experiences, and Discretions hath moved her Majesty to call you to this Dignity.

I am now to advise you so to demean and govern your selves in your Pro∣fession as those good things thus conceived of you may not henceforth any waies be blemished, but rather encrease, to your further Reputations and Credits. In which you are to have a speciall regard that you be thankfull, first, to God, who hath so guided the course of your lives hither-to, as it hath made you to have been thought to have merited this Advancement. Then to her Majesty, who upon good report made, hath conceived so well of you as to call you to this Degree, wherin it behoveth you so to demean your selves, as in all her Highness Service, both in your Countries and otherwise, as you shall be called therunto, as you may be found to deal therin effectu∣ally, diligently, and justly.

And lastly, to the Country and Common wealth who hath carried so good a report of you, as therby you have been the rather brought to this place: And the most thankfulness you can shew to your Country, is, to Councell your Clients according to your skill honestly, and truly, wherby they may not be encouraged to spend their time and their substance in vain, frivolous, and unjust Suits; to be faithfull and secret to your Clients, not disclosing their Councels to their prejudice, that you expedite your Clients Cause

so far forth with conveniency, and your Clients safety, that both in your pra∣ctice and otherwise, your speech and behaviour towards all men be modest and discreet, yea, such as appertaineth to men of your Gravities and Callings, that without respect of persons, yea, be bold to maintain your Clients honest Cause, so far forth as may stand with knowledge and discretion: And that in all things you respect more your honesties, then your profits.

And touching these points, you have a continuall memory, and that al∣waies about you, in your very Garments: And therfore by the Coif, in respect it is white many things are signified, as Gravity, Wisdom, and Experience, for that these Virtues are proper to the gray haires, and white headed men.

There is also signified therby, that you should be both honest and of an un∣spotted life; And in that it is fashioned like a Helmet, it signifieth, that you should be both bold to utter your knowledge in the Law, in the honest and just cause of your Client, without respect of persons whomsoever it concern∣eth. And by the party colour'd Garments, being both of deep colours, and such as the Judges themselves in ancient time used (for so we receive it by tra∣dition is signified soundness and depth of judgment and ability to discerne of Causes, what colour soever be cast over it, and under, or with what vail or shadow soever it be disguised. For the wholness and closness of your Gar∣ments, they do signifie integrity to be used in your advices, and secrecy in your councels. And in that the Garments being single and unlined, it beto∣keneth that you should be sincere and plain in your advises, and not double, carrying your opinion to your self one way, and you advise it your Client clean another way.

The two Tongues do signifie, that as you should have one Tongue for the Rich for your Fee, as a reward for your long studies and labours, so should you also have another Tongue as ready without reward to defend the Poor and Oppressed; And therin to shew your seves thankfull to God for all that which he hath bestowed upon you.

And for the Rings you give, as Gold is amongst all Mettals the purest, so should you be of all others of your Profession the perfectest both in know∣ledge and in the other Virtues before remembred: And in that it is a Ring, and round without end, it betokeneth that you have made a perpetuall Vow to this your Profession and Calling, and are as it were wedded unto it: And therfore I heartily wish you may alwaies walk therin according as appertain∣eth to your Calling.

And this done, the ancienst Serjeant beginneth to recite his pleading, and so each after other in order.

And that done, the ancientest kneeleth down before the chief Justice of England, and so the rest before the Justices and Barons as they are in anci∣enty, and had severally by the said chief Justice their Coifs put upon their heads, and then their red Hoods upon their shoulders, and then the Serje∣ants return to their Chambers, and put on their party colourd Garments, and so walk on to Westminster the one after the other, as they be in ancienty, bare-headed, with all their Coifs on, and so are in their turn presented the one after the other, by two of the ancientest Serjeants: And after their plea∣dings recited, they give their Rings in the Court by some friends, and so are therupon set in their place at the Bar according to their ancienty.

And all this done, they return to their Chambers, and there put on their black Gowns, and red Hoods, and come into the Hall each standing at his Table according to his ancienty bare-headed, with his Coif on, and after setteth himself upon the Bench, having a whole mess of meat, with two cour∣ses of many Dishes served unto him; And in the afternoon they put on their Purple Gowns, and then go in order to Pauls, where it hath been accustom∣ed that they heard Service, and had a Sermon.

Edwards versus Halinder.

4. IN an Action upon the Case by Rice Edwards against Edward Halinder; The Plaintiff declared by his Bill that one Edward Banister was seised in his Demesne as of Fee, of a Messuage in such a Parish and Ward in London, and being so seised did let to him the Cellar of the same house the 23. day of April, 32 Eliz. for a week, from the same day, and so from week to week, so long as the parties should please, at such a Rent by the week, wherby he was possessed.

And further, that the said Edward Banister being seised of the said house, as is aforesaid, afterwards, to wit, 29. July, in the 32. year aforesaid, gave to the said Defendant Officium, Anglice, the Warehouse of the said Messuage being right over the said Cellar, for a week from thenceforth, and so from week to week, so long as the parties should please, paying such a Rent, wher∣by the Defendant was therof possessed accordingly: And the Plaintiff being possessed of the said Cellar, and the Defendant of the Warehouse, as a∣foresaid, and the Plaintiff then having in the said Cellar three Butts of Sack to the value of 40 l. &c. The Defendant the 30: day of July in the 32. year aforesaid, put such a quantity of weight and burthen of Merchandize in∣to the said Warehouse, and therby did so overburthen the floor of the said Warehouse, so that by the force and weight of the said burthen, the said floor the said 30. day of July was broken, and by force therof did fall, and that ther∣by the Merchandize that were in the said Warehouse did fall out of the said Warehouse into the said Cellar upon the said Vessels of Wine, and by force therof brake the said Vessels of Wine, wherby the said Wine did flye out of the said Vessels, and became of no value, to the Plaintiffs damage of a hun∣dred pound, &c. To which the Defendant saith, That within a small time before the Trespasse committed, the floor of the said Warehouse sustained as great a burthen of Merchandize as this was: And that the Warehouse was demised to him as the Plaintiff hath alledged to lay in it 30. Tun weight, wher∣by he was possessed, and so possessed the said 30. day of July, did put into the said Warehouse but 14. Tun weight of Merchandize, and that the damages which the Plaintiff had by the breaking of the floor, was, because the floor at the time of the laying of the merchandise upon it, & also before the lease made to him therof was so rotten, and a great part of the Wall upon which the said floor lyes, so much decayed, that for default of Reparations and support∣ing therof by those to whom the reparations did belong, before the Lease ther∣of made, it suddainly brake, which matter he is ready to aver; Wherupon the Plaintiff demurred, and Iudgment was given for the Plaintiff in the Exchequer, upon which a Writ of Error was brought in the Exchequer Chamber, and the Error assigned was, that the Iudgment ought to have been given for the Defendant, because that now it appeareth that there was not any default in the Defendant, for he was not to repair that which was so ruinous at the time of his Lease, and therfore if it did bear so much lately be∣fore, it cannot fall by the default of the Defendant in the weight put upon it, but by the ruinousnes of the thing demised; And yet by the advice of the Iusti∣ces the Iudgment was this Term affirmed: for the Plaintiff hath alledged expresly, that the floor brake by the weight of the Merchandize put upon it. which ought to be confessed and avoided, or traversed; wheras here he an∣swers but argumentatively, to wit, that it did bear more before, therfore that he did not break it by this weight, or that it was so ruinous that it brake, Ergo not by the weight: wheras here it is expresly alledged, that it brake by the weight put upon it, and if lesser weight had been put it would not have broken. And he who takes such a ruinous house ought to mind well what weight he put into it at his perill, so that it be not so much that another shall

take any damage by it: But if it had fallen of it self without any weight put upon it, or that it had fallen by the default only of the posts in the Cellar which support the floor, with which the Defendant had nothing to do, there the Defendant shall be excused? But here it is expresly alledged, that it fell by the weight put upon it, which ought to be answered: As if a man take an Estate for life, or years in a ruinous house, if he pull it down he shall be charged in Wast, but if it fall of it self, he shall be excused in Wast; so there is a diversity where default is in the party, and where not, so here, the Defendant ought to have taken good care, that he did not put upon such a ruinous floor more then it might well bear, & if it would not bear any thing, he ought not to put any thing into it, to the prejudice of a third person, and if he does, he shall answer to the party his damages.

Collard versus Collard.

5. IN an Ejectione firmae brought by Constantine Collard against Richard Collard, the case appeared to be this; Thomas Collard was seised in his Demesne as of Fee, of Lands in Winkle in the County of Devon, called the Barton of Southcote: And having two Sons, to wit, Eustace the eldest, and Richard (the now Defendant) the youngest, and the eldest being to be mar∣ried, the said Thomas in consideration of this marriage, being upon the said Barton said these words.

Eustace stand forth, I do here, reserving an Estate for my own life and my wives life, give unto thee and thy Heirs for ever these my Lands, and Barton of Southcote; after which the said Thomas enfeoffed his youngest Son of Barton, with warranty from him and his Heirs, the eldest Son enter, and let it to the Plaintiff, upon whom the Defendant re-enter, upon which re-entry the Action was brought, and upon a speciall Verdict all this matter appear∣ed: But it was not found by the Verdict, that the said Thomas Collard the Father was dead, and therfore the Warranty was not any thing in the Case. And it was moved by Heale that the Plaintiff ought to be barred, because it did not passe by way of Estate, in as much as a man cannot passe a Free∣hold of a Land from himself to begin at a time to come, and by it to create a particular Estate to himself, and in use it cannot passe, because that by a bare parole and Vse cannot be raised, and by giving my Land to my Son, Cosin, and the like, nothing will passe without Livery, for there is not con∣sideration to raise an Vse.

Fennor, The words shall be taken, as if he had said (here I give you this Barton reserving an Estate for my life) although the words of reservation have priority in their time from the speaking of them, because a reservation cannot be but out of a thing granted, and therfore the reservation shall be ut∣terly void, or otherwise ought to be taken according to their proper nature, to wit, to be in their operation subsequent, and so shall not hurt the Grant, and therfore are not to be compared to the case where a man grant that after the death of I. S. or after his own death a stranger shall have his Land, which Popham granted.

And Fennor said further, that these words being spoken upon the Land, as before amount to a Livery.

Gawdy said, That the words as they are spoken amount to a Livery, if the words are sufficient to passe the Estate, but he conceived that the words are not sufficient to make the Estate to passe to the said Eustace, because his intent appeareth, that Eustace was not to have the Land untill after the death of him and his wife, and therfore of the same effect, as if he had granted the Land to the said Eustace after his death; and as an Vse it cannot passe, be∣cause by a bare word an Vse cannot be raised, as appeareth in divers Re∣ports.

Mich. 12, & 13 Eliz. which is a good case to this purpose: But to say ge∣nerally that an Vse cannot be raised or charged upon a perfect Contract by words upon good consideration, cannot be Law; and therfore it is to be consi∣dered what the Law was before the Statute of 27 H. 8. And I thinke that none will deny, but that by grant of Land for money, before this Statute an Vse was raised out of the same Land, for a bargain and sale of Land for money, and a grant of Land for money is all one, and no difference between them: And is not a grant of Land made in consideration of marriage of my Son and Daughter, as valuable as a grant of it for money? It is cleer that it is, and much more valuable, as my blood is more valuable to me then my money; and therfore it is absurd to say, that the consideration of money raise or change an Vse at Common Law, and not such a consideration of mar∣riage.

And in such a case at Common Law there was not any diversity, that the party who so grant or hargain for the one or the other considerations was f••i∣sed of the Land granted, or bargained in use, or possession, but that the Vse by the Contract was transferred according to the bargain in both cases where there is a consideration: And where through all the Law shall it be seen that of any thing which might passe by contract, there need any other thing then the words which make the contract, as writing or the like testifying it? And that the Law was so, it appeareth by the Statute of Inrolements of bar∣gains and sales of Land made 27 H. 8. which enacts, that no Freehold, nor Vse therof shall passe by bargain and sale only, unlesse it be by deed indent∣ed and enrolled according to the Statute; Ergo, if this Statute had not been, it had passed by the bargain and sale by bare words; and in as much as the Statute enacts this in case of bargain and sale only, the other cases, as this case here, are as it was before at Common Law. And by an exception at the end of the same Statute, London is as it was at Common Law, and therfore now Lands may passe there at this day by bargain and sale, by word without deed, for it is out of the Statute: And how can we say, that the Statute of Vses does any thing to alter the Common Law in this point, by any intent of the makers therof, wheras at the same Parliament they made an especiall Law in the case of bargain and sale of Lands. And at this day, for the Lands in London, notwithstanding the Statute of Vses, the Law hath been put in practice, and alwaies holden as to the Lands there to be good, if sold by bare Parole as it were at Common Law. And I have heard it re∣ported by Manwood late chief Baron of the Exchequer, that it was in questi∣on in the time of King Edw. the 6th. whether the use of a Freehold of Land will passe upon a Contract by Parole without Deed in consideration of mar∣riage; upon which all the then Iustices were assembled upon a doubt rising in a case, hapning in the Star-chamber, and then resolved by all the Iusti∣ces (as he said) that it shall passe; and he said, that himself was of this o∣pinion also: And to say, that by grant of Land at Common Law, the use had been raised out of the possessions of the Land which the Grantor then had, and by it passe to the Bargainee, and that it shall not be raised and passed to another by grant of Land in consideration of marriage, which is a more va∣luable consideration then money, is absurd and against all reason.

And for the solemnity, Vses in such cases (in respect of marriage) were the cause that they alwaies were left as they were at Common Law, and not restrained as the case of bargain and sale is, which by Common intend∣ment may be made more easily and secretly, then that which is done in con∣sideration of marriage, which is alwaies a thing publike and notorious, but it is not reasonable that every slight or accidentall speech shall make an alte∣ration of any Vse: As if a man ask of any one what he will give or leave to any of his Sons or Daughters for their advancement in marriage, or other∣wise for their advancement, this shall be but as a bare speech or communi∣cation

which shall not alter or change any Vse: But where there is upon the Speech a conclusion of a Marriage between the friends of the parties them∣selves, and that in consideration therof, they shall have such Lands, and for such an Estate, there the Vse shall be raised by it, and shall passe accordingly to the parties, according to the conclusion which Fennor granted.

But by Popham, If it may be taken upon the words spoken, that the pur∣pose was to have the Estate passe by way of making of an Estate, as by way of Feoffment, &c. then notwithstanding the consideration expressed, the use shall not change, nor no Estate by it but at will, untill the Livery made ther∣upon: And therfore if a man make a Deed of Feoffment, with expresse consi∣deration of marriage, although the Deed hath words in it of Dedi & Concessi, with a Letter of Attorney to make Livery therupon, there untill Livery made nothing passe but at will, because that by the Warrant of Attorney, it appeareth the full intent of the parties was, that it shall passe by way of Fe∣offment, and not otherwise, if it be of Land in possession: And if it be of Land in Lease, not untill Attornment of Tenants, which was granted by all the Iustices.

But if a man in consideration of money makes a Deed of Gift, Grant, Bargain, and Sale of his Lands to another, and his Heirs by Deed indented, with a Letter of Attorny to make Livery, if Livery be therupon made be∣fore Inrolement, there it hath been adjudged to passe by the Livery, and not by the Inrolement.

But by Popham, where Land is to passe in possession by Estate executed, two things are requisite: The one, the grant of the said Land, the other, the Livery to be made therupon, for by the bare Grant without Livery, it doth not passe as by way of making of an Estate: And this is the cause that such solemnity hath been used in Liveries, to wit, if it were of a Messuage, to have the people out of it, and then to give Seisin to the party by the Ring of the door of the House, and of Land by a Turff and a Twig, and the like, which may be notorious: Yet I agree it shall be a good Livery to say to the party, Here is the Land, enter into it, and take it to you and your Heirs for e∣ver, or for life, or in tail, as the case is; And albeit Livery by the View may be made in such manner, yet by the sealing of the Deed of Grant upon the Land, or by grant of it upon the Land without Livery, nothing passe but at will. But if therupon one party saith to the other after the Grant, or upon it, Here is the Land, enter upon it, and take it according to the Grant, this is a good Livery: But he ought to say this, or somthing which amounts to so much, or otherwise it shall not passe by the bare Grant of the Land, al∣though it be made upon the Land. Clench said, That when Thomas said to Eustace, Stand forth, here I do give to thee and thine Heirs these Lands, this amounts to a Grant and a Livery also; and by the words of the Reservation of the Estate to himself, and his wife for their lives, in this the Law shall make an use in the said Thomas and his wife for their lives: so that by such means it shal enure, as if he had reserved the use therof to him and his wife, and so it shall enure to them as it may by the Law according to his intent, without do∣ing prejudice to the Estate passed to the said Eustace: And afterwards Term Mich. 36, & 37 Eliz. the Case was again disputed amongst the Iustices, and then Popham said, That the Case of Ba••gains and Sales of Lands in Cities, as London, &c. as appeareth in Dyer 6. Eliz. are as they were at Common Law; To which all the Iustices agreed, and therfore shall passe by Bargain by pa∣role, without writing. And by Bayntons Case in 6, & 7 Eliz. it is admitted of every side, that an Vse was raised out of a Possession at Common Law by Bargain and Sale by parole, and otherwise, to what purpose was the Statute of Inrolements, and by the same case it is also admitted now to passe by parole upon a full agreement by words in consideration of Marriage, or the continuance of Name, or Blood.

For it is agreed there, that the consideration of nature is the most forcea∣ble consideration which can be, and agreed also that a bare Covenant by writing without consideration, will not change an Vse, therfore the force therof is in the consideration, of which the Law hath great respect: And ther∣fore the Son and Heir apparant ex assensu patris, onely may at the door of the Church endow his wife of his Fathers Land, which he hath in Fee, and this is good by Littleton, although the Son hath nothing in it, wherby an Estate passe to the wife, which is more then an Vse. Nature is of so strong con∣sideration in the Law; And therupon after advice, Iudgment was given for the Plaintiff: the Roll of this appeareth in Banco Regis, 1 Hill 35. Eliz. Rot. 355. And upon this Iudgment, a Writ of Error was brought, and the Iudg∣ment aforesaid reversed in the point of Iudgment in the Exchequer, by the Statute of 27 Eliz.

Kettle versus Mason, and Esterby.

6. IN a second deliverance between Joh. Kettle Plaintiff, and George Mason and Francis Esterby, Avowants, the case appeared to be this: Thomas May was seised of the Mannor of Sawters and Hawlin, in the County of Kent, in his Demesne as of Fee, and being so therof seised, enfeoffed Thomas Scot and John Fremling and their Heirs, to the use of Dennis May his Son and Heir apparant and his Heirs, upon condition, that the said Dennis and his Heirs should pay to one Petronell Martin for his life, an annuall Rent of 10 l. which the said Thomas had before granted to the said Petronell, to begin upon the death of the said Thomas; And upon condition also, that the said Thomas upon the payment of 10 s. by him to the said Feoffees, or any of them &c. might re-enter: After which the said Thomas May and Dennis, by their Deed dated 30. May, 19 Eliz. granted a Rent-charge out of the said Mannor of 20 l. a year to one Anne May for her life, after which the said Thomas May paid the said 10 s. to the said Feoffees in performance of the Condition aforesaid, and therupon re-entred into the Land and enfeoffed a stranger: And whether by this the Rent were defeated, was the question: And it was mooved by Coke Attorney-generall that it was not, but that in respect that he joyned in the part, it shall enure against the said Thomas by way of confirmation, which shall bind him as well against this matter of Condition, as it shall do against any Right which the said Thomas otherwise had. And therfo••e by Littleton, If a Disseisor make a Lease for years, or grant a Rent-charge, and the Disseisor confirm them, and afterwards re-enters; albeit Lit. there makes a Quaere of it, yet Cook said, That the Disseisor should not avoid the Charge, or Lease which was granted by the whole Court. And by him the opinion is in P. 11. H. 7. 21. If Tenant in Tail makes a Feoffment to his own use upon Condition, and afterwards is bound in a Statute, upon which Execution is sued, and afterwards he re-enter for the Condition bro∣ken, he shall not avoid the Execution, no more the Rent here.

Fennor agreed with Cook, and said further, That in as much as every one who hath Title and Interest have joyned in the Grant, it remains perpetually good.

And therfore if a Parson at Common Law had granted a Rent-charge out of his Rectory, being confirmed by the Patron and Ordinary, it shall be good in perpetuity, and yet the Parson alone could not have charged it, and the Patron and Ordinary have no Interest to charge it, but in as much as all who have to intermeddle therin are parties to it, or have given their assent to it, it sufficeth.

Gawdy was of the same opinion, and said, That there is no Land but by some means or other it might be charged, and therfore if Tenant for life grant

a Rent-charge in Fee, and he in the Reversion confirm the Grant, per Little∣ton, the Grant is good in property, so here.

To which Clench also assented, but Popham said, That by the entry for the Condition, the Charge is defeated: And therfore we are to consider upon the ground of Littleton in his Chapter of Confirmation, to what effect a Con∣firmation shall enure, and this is to bind the right of him who makes the Confirmation, but not to alter the nature of the Estate of him to whom the Confirmation is made; And therfore in the case of a grant of a Rent-charge by the Disseisor, which is confirmed by the Demisee: the rea∣son why the Confirmation shall make this good, is, because that as the Dis∣seisee hath right to defeat the right and the Estate of the Disseisor by his Re∣gresse, in the same manner hath he right therby to avoid a Charge, or a Lease granted by the Disseisor, which Right for the time may be bound by his con∣firmation. But when a man hath an Estate upon condition, although the Feoffor, or his Heirs confirm this Estate, yet by this the Estate is not alte∣red as to the Condition, but it alwaies remaineth, and therfore Nihil ope∣ratur by such a confirmation to prejudice the Condition. And so there is a great diversity, when hewho confirmeth, hath right to the Land, and where but a Condition in the Land. And by him, if a Feoffee upon condition make a Feoffment over, or a Lease for life or years, every one of these have their Estates subject to the Condition; and therfore by a Confirmation made to them, none can be excluded from the Condition: And the same reason is in case of a Rent granted by a Feoffor upon Condition, it is also subject to the Condition, and therfore not excluded from it by the Confirmation, as it shall be in case of a Right.

And to prove this diversity, suppose there be Grand-father, Father, and Son, the Father disseise the Grand-father, and makes a Feoffment upon Condition, and dies, after which the Grand-father dies, now the Son con∣firms the Estate of the Feoffee, by this he hath excluded himself from the Right which descended to him by his Grand-father, but not to the Conditi∣on which descended to him from his Father.

And of this opinion were Anderson and other Iustices at Serjeants-Inn in Fleetstreet, for the principall Case upon the Case moved there, by Popham this Term: And as the case is, it would have made a good question upon the Statute of Fraudulent Conveyances, if the Avowry had been made as by the grant of Thomas May, in as much as the Estate made to the use of Dennis, was defeasable at the pleasure of the said Thomas, in as much as it was made by the Tenant of the Land, as well as by him who made the Conveyance, which is to be judged fraudulent upon the Statute. But this as the plea∣ding was, cannot come in question in this case: And afterwards by the opi∣nion of other three Iudges, Iudgment was given that the Grant should bind the said Thomas May, and his Feoffees after him, notwithstanding his re∣gresse made by the Condition, in as much as the Grant of the said Thomas shall enure to the Grantee by way of confirmation.

And by Gawdy, If a Feoffee upon Condition make a Feoffment over, and the first Feoffor confirm the Estate of the last Feoffee, he shall hold the Land discharged of the Condition, because his Feoffment was made absolutely without any Condition expressed in his Feoffment.

But Popham denied this, as it appeareth by Littleton Tit. Descents, be∣cause he hath his Estate subject to the same Condition, and in the same man∣ner as his Feoffor hath it, into whomsoever hands it hapneth to come, and therfore the Confirmation shall not discharge the Condition, but is only to bind the right of him who made it in the possession of him to whom it is made but not upon Condition.

Morgans Case.

7. RObert Morgan Esquire, being seised in his Demesne as of Fee, of certain Lands called Wanster Tenements in Socage, having Issue John his eldest Son, Christopher his second Son, and William his youngest Son; by his last Will in writing, demised to the said Christopher and Wil∣liam thus; viz. Ioyntly and severally for their lives, so that neither of them stall alienate the Lands, and if they do, that they shall remain to his Heirs. Robert the Father dies, and afterwards John his Son and Heir dies without Issue, the reversion by this descends to the said Christopher who dies, leaving Issue. And upon this Case made in the Court of Wards, the two chief Iustices Popham and Anderson agreed first, That upon the devise and death of the Father, the said Christopher and William were Joynt-tenants of the Land, and not Tenants in Common, notwithstanding the word (seve∣rally) because it is coupled with the said word (joyntly.) But yet they a∣greed also, that by the descent from John to Christopher, the Fee-simple was executed in the said Christopher, for the Moyety in the same Mannor, as if he had purchased the Reversion of the whole, or of this Moyety, and that it is not like to the Case where Land is given, and to the Heirs of one of them; in which case for the benefit of the Survivorship, it is not executed to divide the Ioynture, because the Estates are made at one and the same time toge∣ther, and therfore not like to the case where the Inheritance cometh to the particular Estate by severall and divided means: And a Decree was made accordingly.

Trin. 36. Eliz. In the Kings Bench.

1. IT was agreed by all the Iustices and Barons of the Exchequer, upon an Assembly made at Serjeants-Inn, after search made for the ancient Presidents, and upon good deliberation taken.

If a man have two houses, and inhabit somtimes in one, and somtimes in the other, if that House in which he doth not then inhabity be broken in the night, to the intent to steal the Goods then being in his house, that this is Burglary, although no person bee then in the House, and that now by the new Statute made, such an Offender shall not have his Clergy, for before the Statutes were made, which take away Clergy in case of Bur∣glary, where any person was put in fear, no mention was made in the In∣ditements of Burglary, that any person was in the House: But it was ge∣nerall that the house of such a one Noctanter fregit, and such Goods then there Felonice cepit. And the breaking of a Church in the night to steal the Goods, there is Burglary, although no person be in it, because this is the place to keep the Goods of the Parish. And in the same manner the house of every one is the proper place to preserve his Goods, although no person be there: And that the Law was alwaies, so it is to be collected by the course of the Statutes therof made, for first the Statute of 23 H. 8. doth not take Clergy from any in case of Burglary, unlesse some of the same Family be in the house, and put in fear. And in 5 Eliz. 6. The Offendor shall be ousted of his Clergy, if any of the Family be in the house, be they sleeping or waking. And these Statutes were the cause that it was used of late time, to put in the Inditements of Burglary, that some person of the Family was then in the house, to put them from their Clergy. But this doth not prove that it shall not be Burglary, but where some person was in the house, and by 18 Eliz. Clergy is taken away in all cases of Burglary generally, without

making mention of any person to be there, which enforce the resolution a∣foresaid, and according to it, they all agreed hereafter to put it in Exe∣cution.

Finch versus Riseley.

2. IN this Term the case betweeen Finch and Riseley was in question be∣fore all the Iustices and Barons for this, assembled at Serjeants-Inn in Fleetstreet, where after Arguments heard by the Councell of the parties up∣on this point only.

If the Queen make a Lease for years, rendring Rent, with a Proviso, that the Rent be not paid at the day limited, that the Lease shall cease, without making mention that it was to be paid at the receit, whether the Lease shall cease upon the default of payment, before Office found therof?

And by Periam and some of the Iustices, the Lease stall not cease untill an Office be found of the default, because it is a matter in Fait which deter∣mines it, to wit, the not-payment.

And by Gawdy, it shall be taken as if it had been for the not-payment, that the Proviso had been that the Lease shall be forfeited: In which case it is not detennined untill Re-entry made for the forfeiture, which in the Queens case ought alwaies to be by Office, which countervails the re-entry of a common person; As where the Queen makes a Lease, rendring Rent, and for default of payment a Re-entry, albeit the Rent be not paid, yet untill Of∣fice found therof, the Rent continues.

Popham, Anderson, and the greater part of the Iustices and Barons resol∣ved that it was cleer in this case, that Ipso facto upon the default of payment, the Lease was determined, according to the very purport of the contract, be∣yond which it cannot have any beeing, and therfore there needs no Office in the case. But where it is that it shall be forfeited, or that he shall re-enter, there untill advantage taken of the forfeiture in the one case, or untill re-en∣try made in the other case, the Term alwaies continues by the contract: And where in the case of a common person, there is need of a re-entry to undo the Estate, there in the case of the King there needs an Office to determine the Estate, for an Office in the Kings case countervails an entry, for the King in person cannot make the entry: And upon this resolution of the greater part of the Iustices in Mich. Term 31, & 32 Eliz. the same case was in questi∣on in the Office of Pleas in the Exchequer, between the said Moil Finch Plaintiff, and Thomas Throgmorton, and others, Defendants, and there ad∣judged by Manwood late chief Baron, and all the other Barons unanimous∣ly after long argument at the Bar and Bench, that the Lease was void upon default of payment of the Rent according to the Proviso of the Lease, and this immediatly without Office for the reasens before remembred; upon which Iudgment was given, a Writ of Error was brought before the Lord Kee∣per of the great Seal, and the Lord Treasurer of England, where it long de∣pended, and after many arguments, the Iudgment given in the Exchequer by the advice of Popham and Anderson was affirmed, and that upon this reason, for the Proviso shall be taken to be a limitation to determine the Estate, and not a Condition to undo the Estate, which cannot be defeated in case of a Condition, but by entry in case of a common person, and but by Office (which countervails an entry) in the case of the Queen. And this Iudg∣ment was so affirmed in Mich. Term, 36, & 37 Eliz.

Smiths Case.

3 IT was found by Diem clausit extremum, after the death of Richard Smith, that in consideration of a marriage to be had between Margaret Smith, and William Littleton a younger Son to Sir John Littleton Knight,

and of 1300. marks paid by the said Sir John to the said Richard, he made assurance by Fine of his Lands (being 174 l. a year) viz. Of part therof of the value of 123 l. a year, of which part was holden of the Queen by Knights Service in Capite, to the use of himself for his life, and after his decease to the use of the said William and Margaret, and the Heirs of the bo∣dy of the said William, begotten on the body of the said Margaret, and for de∣fault of such Issue, to the use of the right Heirs of the said William. And of the residue therof, being also holden in Capite of the Queen, to the use of himself for his life, and after his decease to the use of the first Issue Male of the said Richard, and to the Heirs Males of his body, and then to other Is∣sues of his body, and for default of such Issue, to the said William and Mar∣garet, and the Heirs of the body of the said William, on the body of the said Margaret lawfully begotten, and for default of such Issue, to the right Heirs of the said William, with this Prouiso, That it shall be lawfull for the said Richard, to make a Joynture to his wife of the Lands limited to his Issue Males, and for making of Leases for 21. years, or three lives, for any part of the said Land, rendring the ancient Rent, except of certain parcels, and that William died without Issue, and that Gilbert Littleton was his Brother and Heir, and that the said Margaret married the said George Littleton youngest brother to the said William, which are yet living: And that the said Richard married Dorothy, and made her a Joynture according to the Pro∣viso: And that the said Richard had Issue Iohn Smith, and died, the said Iohn being his Son and Heir, and within age.

After which, a Melius inquirendum issued, by which it was found, that the said Margaret was the Daughter of the said Richard, and that the said Land was of the value of 12000 l. at the time of the assurance: And how much of the Land shall be in ward, and what Land, and what the Melius inquirendum makes in the case, was the question put to the two chief Iustices, Popham and Anderson, who agreed, that the Queen now shall have the third part, as well of that which was assured to William and Margaret, immediatly after the death of the said Richard, as of that which was limited to Dorothy for the life of the said Margaret, for although money were paid, yet this was not the only consideration why the Lands were assured, but the advancement of the Daughter, and now by the surviving of the said Margaret, shee shall be said to be in the whole, which was assured to her by her Father, and for her ad∣vancement, and the Land (as it appears) was of greater value then the money given, and may as well be thought to be given for the Remainder of the Fee. And agreeable to this was the case of Coffin of Devonshire, about the beginning of the Raign of the now Queen, which was that the said Cof∣fin for moneys paid by one Coffin his Cosin (having but D••ughters himself) conveyed his Land to the use of himself and his wife, and to the Heirs Males of his body, and for default of such Issue to the use of his said Cosin and his Heirs, for which, his said Cosin was to give a certain sum of money to the Daughters for their marriage: Coffin dies, his said Daughters being his Heirs and within age, and were in ward to the Queen, the Lands being hol∣den by Knights Service in Capite: And the third part of the Land was ta∣ken from the wife of Coffin for the life of the said wife, if the Heirs continue so long in Ward.

And it was also agreed by them and the Councell of the Court, that the Melius inquirendum was well awarded, to certifie that the said Margaret was the Daughter of the said Richard, of which the Court could not otherwise well take Conusance, for they thought that it was not matter to come in by the averment of the Attorney-generall, as Dyer hath reported it: But now by the Statute, it ought to be found by Inquisition, and being a thing which stands with the former Inquisition, it ought to be supplied by the Melius in∣quirendum: for the same Statute which gives the Wardship in case where

Land is conveyed for the advancement of the Wife, or Infants, or for the sa∣tisfaction of Debts and Legacies of the party by the implication of the same Statute, this may be found by Inquisitton; and if it be omitted in the In∣quisition, it ought to be found by a Melius inquirendum, but not to come in by a bare surmise. And therfore if in the Inquisition it be found, that the Ancestor had conveyed his Land by the Melius inquirendum, it may be found that it was for the payment of his Debts or Legacies, or that the party to whom, or to whose use it was made, was the Son, or Wife of the party that made it, and that by the very purport of the Statutes 32. & 34 H. 8. as by Fitzherbert, if it be surmised, that the Land is of greater value then it is found, a Melius inquirendum shall issue, and so shall it be if it be found that one is Heir of the part of the Mother, but they know not who is Heir of the part of the Father; so if it be not found what Estate the Tenant had, or of whom the Land was holden: so upon surmise made, that he is seised of some other Estate, or that he held it by other Services, by Fitzherbert a Melius inquirendum shall Issue, and upon this order given, it was decreed accordingly this Term.

Morgan versus Tedcastle.

4. IN the same Term upon matter of Arbitrement between Morgan and Tedcastle, touching certain Lands at Welburn, in the County of L••ncoln, put to Popham, Walmesley, and Ewens Baron of the Exchequer: Wheras Morgan had granted to Tedcastle a 100. acres of Land in such a field, and 60, in such a field, and 20. acres of Meadow in such a Meadow in Welburn and Hanstead, in which the acres are known by estimations or limits, there be shall take the acres as they are known in the same places, be they more or lesse then the Statute, for they passe as they are there known, and not accor∣ding to the measure by the Statute. But if I have a great Close, contain∣ing 20. acres of Land by estimation, which is not 18. And I grant 10. a∣cres of the same Close to another, there he shall have them, according to the measure by the Statute, because the acres of such a Close are not known by parcels, or by meets and bounds, and so it differeth from the first case: And upon the case then put to Anderson, Brian, and Fennor, they were of the same opinion: Quod nota.

Humble versus Oliver.

5. IN Debt by Richard Humble against William Oliver, for a Rent reserved upon a Lease for years, the case was this; Thomas Plain was seised in his Demesne as of Fee, of a Messuage in S. and so seised, did let it to the Defendant for divers years yet to come, rendring Rent, payable at four usu∣all Feasts of the year, the Lessee entred accordingly, after which the said Plain by Bargain and Sale enrolled, conveyed the Reversion therof to the said Humble and his Heirs, and before the Feast of the Annunciation of our Lady, 35 Eliz. to wit, the 1. day of February, in the same year the said O∣liver assigned over his whole Term to one Southmead, who before the same Feast entred accordingly, and for the Rent due at the Feast the Annun∣ciation of our Lady, the Plaintiff brought this Action: And it was agreed by the whole Court that the Action would not lie against him; for although Plain (if he had not aliened the Reversion over) might have had this Action against the said Oliver, notwithstanding that he had assigned over his Term before, for the privity of contract which was between them, in as much as they were parties to it of either part, yet the Grantee of the Reversion shall

not have advantage of the privity, he being a meer stranger to the Contract, and now was but privy in Law by the Bargain, and therfore now he hath no remedy but against him who had the Estate at the time when the Rent hapned to be due; and this is Southmead, and not Oliver. The Roll of this case is in the Kings Bench, Hill. 36. Eliz. Rot. 420.

Mich. 36, & 37 Eliz. In the Kings Bench. Button versus Wrightman.

1. IN an Ejectione firmae, between John Bu••ton Plaintiff, and Etheldred Wrightman Widow, and other Defendants; for a House and certain Lands in Harrow. The Case upon a speciall Verdict was this; The Dean and Chapter of Christs Church in Oxford, were incorporated by K. H. 8, by his Letters Patents, dated 4. Novemb. 38 H. 8. by the name of the Dean and Chapter of the Cathedrall Church of Christ, &c. Oxford, of the Foundation of King Henry the 8th. and so to be called for ever; after which the said Dean and Chapter was seised in their Demesne as of Fee, of the said House and Land, and so being seised by the name of the Dean and Chapter Ecclesiae Cathedralis Christi in Accademia Oxon. ex fundatione Reg. H. 8. enfe∣offed Edward, late Lord North therof, by their Deed, hearing date the 21. day of April, 1. E. 6. who afterwards dyed, and the now Lord North entred, and did let it to the Plaintiff, who was ousted by the Defendant, claiming the said House by a Lease made by the said Dean and Chapter in the time of Queen Elizabeth, for divers years yet to come, and whether his entry were lawfull, or not, was the question, and all depends upon the mis-naming of the Corporation: But it was found that the City of Oxford, and the Vni∣versity of Oxford were all one, and that the Town of Oxford was made a City by the Charter of King H. 8.

And by Fennor, the Feoffment made to Edward Lord North, for the mis∣naming of the Corporation, was void, for he said, that Accademia & villa de Oxford, are divers in name, and divers in nature, for the Vniversity is to the Schollars and learned men there, and the Town for the Inhabitants, and the name of a place is a principal thing in a Corporation, which in a new Corporation ought to be precise, according to the very Letter of the Charter therof: And therfore in the case of Chester it was agreed, that Cestria being omitted, the Charter for the Dean and Chapter there had been void.

But by Popham, Gawdy, and Clench, this is not such a mis-naming as to the place which shall make the Feoffment void: for suppose it had been De∣canus & Capitalis Ecclesiae Cathedralis Christi in Civitate Oxon. it had been good, for Oxon. & Civitas Oxon. are one and the same. So it is if an Hospi∣tall be erected by the name of the Hospitall of S. Johns in S. Clements; and they make a Grant by the name of the Hospitall of S. Johns in the Parish of S. Clements, it is good, for it appeareth to be the same: And here if a man will say, that it shall go to the Vniversity of Oxford, this every one conceives to be the Town of Oxford, and so of Cambridge, and therfore in 8 H. 6. it was a∣greed to be a good addition for the place in an Action personall, against such a one Chancellor of the Vniversity of Oxford, and so it is against J. Rector of the Parish Church of Dale, without any other addition for the place, yet the Statute is, that it ought to be named of what Town, Hamlet, or place the party is. And by Popham, the place in a Corporation may well be resem∣bled to the Sur-name of a man, and as a Grant made by any persons Chri∣stian name, as John, Thomas, &c: is not good, so in a Corporation it is not good to say, Dean, and Chapter, Mayor, and Comminalty, and the like,

without saying, of what place: And anciently men took most commonly their Surnames from their places of habitation, especially men of Estate, and Artizans often took their names from their Arts, but yet the Law is not so precise in the case of Sur-names, and therfore a Grant made by, or to John, Son and Heir of I. C. or Filio juniori I. S. is good: But for the Chri∣stian name, this alwaies ought to be perfect.

So in the case of a Corporation, it sufficeth to have a sufficient demonstra∣tion of the place where the Corporation is, albeit it be not by the precise words comprised in the Charter: as in naming Accademia Oxon. pro Villa Oxon, and it is common, of which I have seen divers Charters, where a Town was incorporated by the name of Mayor, and Comminalty of such a Town, as Bristoll, Exeter, and others, which afterwards have been made Cities, and yet Charters made to them, and Grants made by them, by the name of Mayor and Comminalty of the City is good, but more precisenesse is vsed in the body of the name of a Corporation before the place to which they are annexed, and yet in them, that which is but an ornament to the name comprehended in the Charter, shall not hurt the Grant, as of Chapiter, of S. George of Windsor, if it be of S. George the Martyr, and the like, the Grant by such a name is good, because the Martyr is but an addition of Orna∣ment to the name comprised in the Charter, and it is no other but the same in re vera. So here, if it had been Domini nostri Jesu Christi, because it is the same, and is but an ornament to the word Christ comprised in the Charter, and so should it be also if it had been Christi filii Dei Salvatoris no∣stri, because it is but a true addition to the same; wherupon Iudgment was given for the Plaintiff, as appeareth in the Kings Bench, Pas. 35 E. Rot. 258.

And Popham said further in this case, that to erect an Hospitall by the name of an Hospitall, in the County of S. or in the Bishopprick of B. and the like, is not good, because he is bound to a place too large, and incertain: But a Colledge erected in Accademia Cantabrig. or Oxon. is good, and s••me are so founded because it tends but to a particular place, as a City, Town, &c.

King versus Bery and Palmer.

2. IN an Ejectione firmae, brought by William King against John Bery and William Palmer Defendants, for two Messuages and certain Lands in Halstead in the County of Leicester, upon a Demise alledged to be made by Dorothy Pool, and Robert Smith▪ the case upon a speciall Verdict was this; The said Dorothy was Tenant for life of the said Tenants, the Remainder over to the said Robert Smith and his Heirs, and they being so seised made the Lease in the Declaration, upon which the Action was brought. And per cu∣riam, the Lease found by the Verdict doth not warrant the Lease alledged in the Declaration; for although they joyned in the Demise, yet during the life of the said Dorothy it is her Demise, and not the Demise of the said Robert Smith; but as his confirmation for that time: for he hath nothing to do to meddle with the Land during the life of the said Dorothy, but after the death of the said Dorothy then it shall be said to be the Domise of the said Robert Smith, and not before, because untill this time Smith hath nothing to do to meddle with the Land. And in a more strong case, If Tenant for life, and he in the Reversion in Fee make a Gift in tail, for the life of Tenant for life, it shall be said to be his Gift, but after his death it shall be said the Gift of him in the Reversion, and if the Estate tail had expired during the life of the said Tenant for life, he shall have the Land again in his former Estate, and there shal be no forfeiture in the case, because he in the Reversion of the immediate Estate of Inheritance had joyned in it, and therfore hath dispensed with that which otherwise had been a meer forfeiture of the Estate for life, wherby it was awarded by the Court that the Plaintif take nothing by his Bill in 33, & 34 Eliz. Rot. And the Judgment is entred, Hill. 34. Eliz. Ret. 72.

3. In this Term I hapned to see a Case agreed by the Iustices in 3. & 4. Eliz. which was this:

If a man make a Lease of two Barns, rendring Rent, and for default of pay∣ment, a Re-entry, if the Tenant be at one of the Barns to pay the Rent, and the Lessor at the other to demand the Rent, and none be there to pay it, that yet the Lessor cannot enter for the Condition broken, because there was no default in the Tenant, he being at one, for it was not possible for him to be at both places together.

And upon this Case now remembred to the Iustices, Popham, Walmes∣ley, and Fennor said, That perhaps also the Tenant had not money sufficient to have been ready to have paid it, at either of the said places, but it is suffi∣cient for him to have and provide one Rent, which cannot be at two places together.

And by the Case reported here also; If Lands and Woods are demised to∣gether, the Rent ought to be demanded at the Land, and not the Woood, because the Land is the more worthy thing, and also more open then the Wood: And therfore by the three Iustices aforesaid, Rent ought not to be demanded in any private place of a Close, as amongst Bushes, in a Pit, or the like, nor in the open and most usuall passage therof, as at a Stile, Gate, and the like.

4. Vpon a Prohibition sued out of the Kings Bench, the Case appeared to be this.

The late Lord Rich, Father to the now Lord Rich devised, to his Daughter, for her advancement in marriage 1500. upon condition, that she marry with the consent of certain friends, and deviseth further, that if his Goods and Chattels are not sufficient to pay his Debts and Legacies, that then there shall be 200 l. a year of his Lands sold to supply it, and dies, making the now Lord Rich his Executor, his Goods and Chattels not being sufficient to pay the Debts of the Testator, as was averred, the said Daughter married with a Husband against the will of those who were put in trust to give their assents; and the Husband and the Wife sued in the Spirituall Court for the Legacy: And it was surmised that they would not allow the proofs of the said now Lord Rich, exhihited to prove the payment of the Debts of his Testator; and further, that they would charge him for the sale of the Land; upon which matter the Prohibition was granted to the Delegates, before whom the mat∣ter depended, and now consultation was prayed in the case.

Vpon which it was affirmed by a Doctor of the Civill Law, that they will allow the proofs for the payment of the Debts, according to our Law, and that the Legacy shall not be paid untill the Debs are satisfied. But he said, that by the Law, if the Executor do not exhibit his Inventory, but neg∣lect it for a year, or more, that then if any omission or default be in the true value of the Inventory exhibited, that then such on Executor for this default shall pay all the Legacies of his Testator, of what value soever they are, not respecting the Debts, or the value of the Goods or Chattels, how small soever the omission, or default be in the Inventory; And so he said was the case of the now Sir Richard S. who did not bring in the Inventory for four years after the death of the Testator, and that in the Inventory exhibited, the values of every thing were found to be too small, and therfore to be charged by their Law, albeit he hath not Goods and Chattels sufficient of the Testators. To which it was answered, that this was quite without reason, for by such means every Subject of the Realm may be utterly defeated, if he take upon him the charge of an Executorship: And if this shall be admitted, no man will take upon him the Execution of the Will of any, and by such a means none will have their Wills performed, which shall be too inconve∣nient.

And they said further, that in as much as Debts are to be proved by the Common Law of the Realm, those of the Ecclesiasticall Courts ought to admit in the proof therof, such proofs as our Law allows, and not according to the precisenesse of their Law: And although by their Law such a Condi∣tion as before being annexed to a Legacy, is void, because that marriage oughr to be free without Coercion, yet where we are to judge upon the point (as we are here) if the Execution happen to be charged because of the sale of Land, and for the money coming therof, a prohibition shall be granted to the Ecclesiasticall Iudge in such a case, wherby the Court granted a spe∣ciall consultation in the Case, to wit, that they proceed for the Legacy, provi∣ded, that they charge the Executor no further then he hath in Goods and Chat∣tels of the Testator, after his true and due Debts are satisfied: And that in the case of the proof of these Debts, they allow such proofs as by the Law of the Land are holden to be sufficient in such a case; Quod nota ben••, as to the restraining of Ecclesiasticall Courts in their proceedings, to bind any subject touching his private temporall Estate, against all reason: And as to it, that they do not intermeddle in any thing belonging to the Common Law of the Realm, as Debts, and the like, against the due course of the Common Law.

Cawdry versus Atton.

5. IN Trespasse brought by Robert Cawdry Clerk, against George Atton, for breaking his Close at North Luffenham in the County of Rutland, upon not guilty, and a speciall Verdict, the Case appeared to be this, to wit, that the Plaintiff was Rector Ecclesiae de North Luffenham aforesaid, of which the place was parcell, and being so seised, was deprived of his Rectory by the late Bishop of London and his Colleagues, by virtue of the high Com∣mission to them and others diverted, because he had pronounced and uttered slanderous and contumelious words against, and in depravation of the Book of Common-prayer; But the form of the sentence was, that the said Bishop by, and with the assent and consent of five others of the said Commissioners his Companions, and namely which deprived him.

And further, it was not found, that the Commissioners named were the naturall Subjects born of the Queen, as the Statute enacts that they should be: And if the deprivation be void, then they find the Defendant guilty, and if it were good, then they find him not guilty. And it was moved that the deprivation was void.

First, Because that wheras the Commission is to them, or any three of them, of which the said Bishop to be one amongst others, it ought to have been the sentence of them all, according to the authority given to them, which is equall, and not that it was done by one with assent of the other. Then be∣cause it is not found that the Commissioners are the naturall Subjects of the Queen born, as by the words of the Statute they should be.

Another is, because the punishment which the Statute provides for those of the Ministry which deprave this Book, is to loose the profits of all their Spirituall Promotions but for a year, and to be imprisoned by the space of six months, and not to be deprived untill the second Offence, after that he had been once committed, and therfore to deprive him for the first offence was wrongfull and contrary to the Statute. But by the whole Court for the form of the deprivation, it is, that which is used in the Ecclesiasticall Courts, which alway names the chief in Commission, that are present at the begin∣ning of the Sentence, and for the other they mention them only as here, but of their assent and consent to it, and in such cases we ought to give credit to their form, and therfore tis not to be compared to an authority given at Com∣men Law by Commission.

And for the matter that is not found, that the Commissioners were the na∣turall Subjects of the Queen born, it is to be intended that they were such, unlesse the contrary appear: But here at the beginning it is found that the Queen, secundum tenorem & effectum actus predict. had granted her Com∣mission to them in causis Ecclesiasticis, and therfore it appeareth sufficient∣ly that they were such as the Statute wills them to be.

And for the deprivation, they all agreed that it was good, being done by the authority of the Commission, for the Statute is to be understood where they prosecute upon the Statute by way of Inditement, and not to restrain the Ecclesiasticall Iurisdiction, being also but in the Affirmative.

And further by the Act and their Commission, they may proceed according to their discretion to punish the offence proved or confessed before them, and so are the words of their Commission warranted by the clause of the Act.

And further, the Ecclesiasticall Iurisdiction is saved in the Act.

And further, all the Bishops and Popish Priests were deprived by virtue of a Commission warranted by this clause in the Act: And now lately it was agreed by all the Iustices, that a Fine of 200. marks set upon one for a viti∣ous liver by the high commission was warranted by virtue of the Commissi∣on and Act: And therfore if the Act with the Commission, are to be consder∣ed in this case, wherupon it was agreed that the Plaintiff should take no∣thing by his Writ: Which you may see, Hill. 33. Eliz. Rot. 315.

Hall versus Peart.

6. IN an Ejectione firmae brought by William Hall Plaintiff, for Land in D. in the County of Somerset, upon a Lease made by William Dodington against John Peart and other Defendants, upon a speciall Verdict the case ap∣peared to be this.

That one Iohn Brown was in possession of certain Lands in D. aforesaid, which before were parcel of the possessions of the Hospitall or Priory of S. Iohns in Wells, the Inheritance therof then being in the late King H. 8. by the Act of dissolutions: And the King being so seised by his Letters Patents, dated 26. of March, 30 H. 8. ex gratia speciali, certa scientia & mero motu suo, granted to Iohn Ayleworth, and Ralph Duckenfield, omnia illa Messu∣agia Ter. Tenemt. & gardina sua & quaecunque tune in separabilibus tenuris diversarum personarum, which he named particularly, amongst which the said Iohn Brown was one in Civitate Wellen. ac in suburbiis ejusdem Civitat. & exira eandem civitat. within the Jurisdictions and Liberties of the said City, late parcell of the possessions of the said Hospitall, and that the said Iohn Brown had not then any other Lands late parcel of the possessions of the said Hospitall, but this in D. and that this Land was quite out of the said City of Wells, and of the Suburbs therof, and also out of the Liberties and Jurisdi∣ction of the said City, and yet it was found that it was in the particular and parcell of the value, and valued in it in the Tenure of the said Iohn Brown at 6 s. 8 d. a year, and the grant was to the said Iohn Ayleworth and Ralph Duckenfield, and to the Heirs of the said Iohn Ayleworth forever.

And it was moved that the Grant was good to the said Ayleworth and Duckenfield, because of the Statute of non-recitall and mis-recitall, because it appeareth by the particular, and value that it was intended to be passed: And if this doth not passe, nothing can passe which was in the Tenure of the said Brown, because he had nothing in the places comprised in the Patent.

But it was agreed by all the Court, that it shall not passe by the said Pa∣tent in this case, for the word (illa) is to be restraind by that which follows in the Patent, where it depends upon a generality, as here, and that it re∣fers but to that in Wells, as the liberty of that which was parcell of the pos∣sessions

of the said Hospitall, and in the Tenure of the said John Brown: And if it were not of these possessions, or not in Wells, &c. or not in the Te∣nure of the said John Brown, it shall not passe, for the intent of the King in this case shall not be wrested according to the particular or the value, which are things collaterall to the Patent, but according to his intent comprised in, or to be collected by the Patent it self.

And Popham said, that by Grant of omnia, terras Tenementa & Heredita∣menta sua in case of the Queen nothing passe, if it be not restraind to a cer∣tainty, as in such a Town, or late parcell of the Possessions of such a one, or of such an Abbey, or the like, in which cases it passeth, as appeareth by 32 H. 8. in case of the King: But if it be Omnia, terras & tenementa sua vo∣cat. D. in the Tenure of such a one and in such a Town, and late parcell of the possessions of such a one, there albeit the Town or the Tenant of the Land be utterly mistaken, or that it be mistaken of what possessions it was, it is good, for it sufficeth that the thing be well and fully named, and the o∣ther mistakes shall not hurt the Patent.

And the word of Ex certa scientia, &c. will nof help the Patent in the principall case. And the case of 29 E. 3. is not to be compared to this case, for it was thus.

The King granted the Advowson of the Priory of Mountague (the Prior being an Alien) to the Earl of Salisbury and his Heirs for ever: And also the keeping and Farm with all the Appurtenances and Profits of the said Priory, which he himself had curing the War, with the keeping of cer∣tain Cell•• belonging to the said Priory; the said Earl died, William Earl of Salisbury being his Son and Heir, and within age, wherupon the King reci∣ting that he had seised the Earls Lands into his hands after his death, for the Nonage of the Heir, he granted to the said Earl all his Advowsons of all the Churches which were his Fathers, and all the Advowsons of the Churches which belong to the Prior of Mountague, to hold untill the full age of the said Heir, & quas nuper concessit prefat. Comiti patri, &c. In which case, although the King had not granted the Advowsons to the said Earl the Father afore∣said, by the former Patent, because no mention was of the Advowsons ther∣of, yet they passe by this Patent, notwithstanding that which follows after, to wit, and which he granted to the Father of the Grantee: But there it is by a Sentence distinct, and not fully depending upon the former words, as here, to wit, Omnia illa Messuagia, &c in Wells, in the Tenure of the party, parcell of the Possessions of such an Hospitall, or Priory: Quod nota, and the difference.

And because the Defendant claimed under the first Patent, and the Plain∣tiff by the latter Patent, it was agreed, that the Plaintiff should recover: Which you may see in the Kings Bench.

Harrey versus Farcy.

7. IN an Ejectione firmae brought by Richard Harrey Plaintiff, for the Moyety of certain Tenements in North-petherton, in the County of Somerset, upon a Lease made by Robert Bret against Humfrey Farcy Defen∣dant, upon not guilty, and a speciall Verdict found, the case appeared to be this, to wit, That Robert Mallet Esquire, was seised of the said Tenements, in his Demesne as of Fee, and so seised demised▪ them to John Clark, and Elianor Middleton, for term of their lives, and of the longer liver of them, af∣ter which the said Tenements (amongst others) were assured by Fine to certain persons and their Heirs, to the use of the said Robert Mallet for term of his life, and after his decease to the use of John Mallet his Son and Heir of his body, and for default of such Issue, to the use of the right Heirs of the aid Robert Mallet.

After which the said Robert Mallet (having Issue the said John Mallet, Christian, and Elianor Mallet) died, the said John Mallet then being within age, and upon Office found in the County of Devon, for other Lands holden of the Queen in Capite by Knights Service was for it in Ward to the Queen: Afterwards the said John Mallet died without Issue during his No∣nage, and the Lands aforesaid therby descended to his said two Sisters, to whom also descended other Lands in the County of Devon, holden of the Queen in Capite by Knights Service, conveyed also by the same Fine in like manner, as the Lands in North Petherton, the said Christian then being of the age of 22. years, and the said Elianor of the age of 15. yeares, upon which the said Christian and Elianor, 12. Novemb. 31 Eliz. tendred their Li∣very before the Master of the Wards, and before the Livery sued, the said Christian took the said Robert Bret to husband, and the said Elianor took to husband one Arthur Ackland; after which in the Utas of the Purification of our Lady, 32 Eliz. the said Robert Bret and Christian his wife, levied a Fine of the said Tenements in North-petherton, amongst others to George Bret and John Pecksey, Sur conusance de droit come ceo que ils ont de lour done, by the name of the Moyety of the Mannor of North petherton, &c. with war∣ranty against them and the Heirs of the said Christian against all men, who tendred it by the same Fine to the said Robert Bret and Christian, and the Heirs Males of their bodies, the remainder to the Heirs Males of the body of the said Christian, the remainder over to the right Heirs of the said Robert Bret, which Fine was engrossed the same Term of S. Hillary, and the first Proclamation was made the 12th. day of February in the same Term; the second, the first day of June in Easter Term, 32 Eliz. The third, the 8th. day of July in Trinity Term next: And the fourth Proclamation was made the 4th. day of October, in Michaelmas Term next after. And the said Christian died without Issue of her body. The 9th. day of February, 32 Eliz. between the hours of 3. & 7. in the afternoon of the same day. And the 22. of March, 32 Eliz. the said Robert Bret by his writing indented, dated the same day and year, for a certain summ of money to him paid, by the Queen, bargained and sold, gave and granted the said Teuements to the said Queen, her Heirs and Successors for ever, which Deed was acknowledged the 25th. day of March, 32 Eliz. and enrolled in the Chancery the 12th. day of May, in th•• same year: And there was a Proviso in the same Deed, that if the said Ro∣bert Bret shall pay to the Queen at the receipt of the Exchequer 5 s. of law∣full money, that then the said Gift, Grant, Bargain, and Sale shall be void, and that from thence-forward it shall be lawfull for the said Robert Bret and his Heirs to re-enter into the said Tenements, and in the mean time be∣tween the Inrolement of this Deed: And the said 14th. day of Octob. to wit, the 15th. day of September, 32 Eliz. the said Arthur upon the said Tene∣ments in North-petherton, entred and claimed the Reversion therof in the right of the said Elianor his wife, by reason of the death of the said Chri∣stian: And that afterwards, to wit, the 30th. day of February, 33 Eliz. the said Robert Bret to redeem the said Tenements out of the Queen, paid the said 5 s. at the receipt of the Exchequer, which payment is there recorded, and enrolled accordingly; after which in September, 34 Eliz. the said Ar∣thur and Elianor sued out a speciall Livery of the said Elianor, out of the hands of the Queen, of all the Lands seised into the hands of the Queen by reason of the Nonage of the said John Mallet. And afterwards in the same meneth of September, 34 Eliz. the said Arthur and Elianor sued out another speciall Livery, as Heir to the said Christian, of all the Lands which were in the Queens hands by the death of the said Christian.

And it was further found, that the said John Clark and Elianor Middleton, died after the 5 s. paid as before, and that the said Robert Bret entred the 8th. day of October, 34 Eliz. and then made the Lease to the Plaintiff, upon

which the Defendant by commandment of the said Arthur, and with him en∣tred upon the Plaintiff; and the generall question was, Whether the entry of the Defendant were lawfull? But no ouster of the Plaintiff was found.

And by Clench, and Fennor, a Fee-simple passe at Common Law by a Fine levied by him in Reversion, or Remainder in Tail, because a Fine is said to be a Feoffment of Record, and by their entry and Feoffment a Fee-simple passe in such a case at Common Law.

But by Popham, and Gaudy, a Fee-simple doth not passe, nor nothing but that which Tenant in Tail may lawfully grant over, which is for his life, in which he said, that Littleton was plain in all cases of Grant, although it be by Fine, and a Fee-simple does not passe at Common Law, but where the Fee may be drawn out of him who had the Reversion or Remainder in Fee therupon, if such a Reversion or Remainder had been in a stranger, which had not been in this case, if the Reversion or Remainder had been in a stranger; and therfore a Discontinuance cannot be of an Intail where the Reversion or Remainder is in the King.

But by them all, however it was at Common Law, it is cleer upon the Statute of Fines, that a Fee-simple determinable passe by such a Fine as soon as the Fine is levied, because every Fine by presumption of Law shall be taken to be such wherupon proclamation is made, untill the contrary ther∣of appeareth to the Court.

And this is the reason why a Quid juris clamat is at this day maintained upon such a Fine, which was not at Common Law before this Statute, or o∣therwise it will never lye. And so it was holden lately in the Common Bench, in the case of Iustice Wimondham, and yet we may see that the Quid juris clamat ought to be brought before that the Fine be engrossed, wherby it is manifest that now a Fee-simple shall passe by the Fine levied, for the possibility of the Proclamations, to wit, that the Proclamations shall not be made, and to this Fee-simple the Proclamations shall enure to make a bar to the Estate-tail: But such a Fine by Popham and Gawdy was not a∣ny wrong to him who had the Reversion or Remainder in Fee being levied by him who had a mean Reversion or Remainder in Tail, depending upon an Estate for life, or in Tail precedent.

And it is cleer, that the Proclamations do not make the Estate, but enure to the Estate made by the Fine, for if an Estate be granted in Reversion for life, or in Tail by Fine, with Proclamations by such a Tenant in Tail, in Reversion or Remainder, the Proclamations work to this Estate, and no further, for alwaies the Estate passe by the Fine, and the Proclamations make the Bar according to the Estate, which passe by the Fine before.

But by Clench, Gawdy, and Fennor, the Fee-simple which was in the Queen after the Fine levied as before, was divested by means of this claim made upon the possession of the Queen, lo that the Proclamations following are of no force to hurt the Estate tail, for they said, in divers cases a possession may be invested out of the Queen without Office, Petition, or Monstrans de droit, as the case is, where a man devise that his Land shall be sold, and in the mean time before the sale, the possession of the Land cometh to the Queen, and afterwards the Land is sold according to the Will, the Vendee enter, there the Land passe from the Queen therby, and is divested, and so in many other cases. And in all cases where the Queens Estate is deter∣mined, the Subject may enter into the Land without Office, or Ouster le main, &c. And they said, if it had been in the possession of a common person, that by such a claim the force of the Fine had been defeated; and this appea∣reth by the case between Smith and Stapleton in the Commentaries, where it is holden that where a Fine is levied with Proclamations by Tenant in Tail of an Advowson, Rent, or Tithes, by claim made by the Issue in Tail, before the Proclamations are passed, where the Tenant in Tail is dead, the

same is defeated, and that the Proclamations passing afterwards, shall not be of force to bar the Intail.

And they said, that the conveyance therof to the Queen after the Fine levied, doth not make it to be in worse case; And admit it will not serve a∣gainst the Queen, yet the claim will serve against Bret, when he had entred by the performance of the Condition.

And Clench and Gawdy said, that Bret shall not take advantage of this co∣venous Deed made by himself, of very purpose to bar the party who had right, and to put him without remedy, no more then where the Disseisor en∣feoff his Father who dies seised, he shall not take advantage of this descent, or if he who hath cause of Action to recover Lands by Covin, causeth another to enter into the Lands, to the intent to recover against him, and does it ac∣cordingly for the Covin, the Recovery shall be avoided, and in the same man∣ner here.

But Popham took a diversity, where the Possession or the Estate of the Queen is determined, and where not, for where the Estate is determined, there the Subject may enter into the Land without Office, or ouster le main: But where the Possession continues, there the party shall not come to it, unlesse by petition, Monstrans de droit officio, or the like, and therfore hee said, that if the Queen had an Estate pur auter vie, or depending upon any other Limitation, if it be determined according to the Limitation, the par∣ty who hath interest may enter; so in the case of the Devise put before.

And if a Lease be made for life, the Remainder in Tail, the Reversion in Fee, and he in the Remainder in Tail levy a Fine, Sur conusance de droit come ceo que il ad de son done to a stranger, with proclamations according to the Statute, and afterwards the stranger convey the Remainder to the Queen, her Heirs and Successors, and after the Tenant for life dies, and after he in the Remainder in tail dies without Issue, now may he in the Re∣mainder in Fee enter, because the Estate of the Queen is determined: But here the Queen hath a Fee-simple in her self but determinable upon the E∣state-tail which yet remaineth, which Fee-simple in Reversion cannot be divested out of the possession of the Queen but by matter of Record, of so high nature as it is in her, to wit, by Petition, Monstrans de droit, or the like: As if a Reversson or Remainder be alienated in Mortmain, the claim of the Lord sufficeth ther•• to vest the Reversion in the Lord for the Alienation, but if the Reversion or Remainder of which such a claim was made be conveyed to the King, his remedy is now by Office, Monstrans de droit, or Petition, for claim will not now serve him, for this shall be to divest the possession out of the Queen, which by such means cannot be done no more then where a Re∣version or Remainder is granted to the Queen upon Condition, but he ought to have an Office to find the performance of it, if it be to be performed by matter in pais, and without Monstrans de droit, or otherwise it shall not be divested out of the Queens possession, yet in the case of a common person, a claim will divest it out of them, but not so of the Queen.

And these cases Gawdy agreed; but he conceived that in the case in que∣stion, the claim made determines the Estate of the Queen, which is made by means of the Fine upon the Statute.

And Popham denied the case put in 7 H. 6. to be Law, as it is put upon the opinion of Strange there, for it is cleer, that the claim there does not di∣vest any possession which was in the King by means of the Wardship, and if this be not therby defeated, the claim does not help the Disseisee against the Descent; and this appeareth fully by Littleton, who saith so of a Claime which avoids a Descent, to wit, that it ought to be such upon which the Dis∣seisee may upon every such Claim made have an Action of Trespasse or As∣sise against the Dissessor, or him who is in possession, if he continue his pos∣session after such Claim made, which cannot be in this case where the pos∣session

is in the King, which cannot be defeated by such a Claim. And in the Lord Dyer where the Feoffee, or Mortgagee of Lands holden of the Queen in Capite by Knights Service, died before the day of Redemption, his Heir being within age, wherby upon Office found, the Queen had the Wardship of the body and land of the Heir, after which the Mortgagee at the day of re∣demption made payment, and of this also an Office was found, yet he could not enter either before or after Office, but upon Monstrans de droit therupon he had his Ouster le main: And the reason why a Claim shall serve in this case between common persons, is, because that by such Claim the thing it self is devested out of him who had it before, and therby actually vested in him who made the claim: As where a Villain purchase a Reversion by the Claim of the Lord, the Reversion is actually in him, as it is of a Possession by Entry: But where he is put to his Claim to devest any thing out of a common person, he is put to his Suit to devest it out of the Queen.

Aad to say, that Bret should not take advantage of this Conveyance made, to make it good by the Fine.

I think the Law to be clear otherwise as to this point, for the Statute of Fines was made tor the security of Purchasors and Possessors of Land, and therfore taken more strongly against them who pretend Right or Title, and for the greatest advantage that may be for the Possessors of Lands, and ther∣fore the Possessor by what ever means he can, may make his Fine to be force∣able? And therfore the Fine upon this Statute differeth much from a Fine at Common Law; for where at Common Law an Infent being a Disseisor was disseised by one who levies a Fine, and the year and the day passe with∣out claim of the first Disseisee, now was the first Disseisee barred: yet if afterwards the Infant (who was not bound by the Fine) enter, the first Disseisee may enter upon him, because that by this entry the Fine at Com∣mon Law was utterly defeated.

But now by the Statute, such a Fine being levied with Proclamations, the first Disseisee not pursuing according to the Statute, is barred for ever.

And although the Infant enter at full age, and undoes the Fine as to him∣self, yet this Fine remains alwaies to bar the first Disseissee, and makes that the Infant hath now Right against all the world, and so now takes ad∣vantage therof: And this is the intent of the Statute for the repose of Con∣troversies and Suits, and the quiet of the people.

And if I procure a Fine to be levied on purpose to bar another of his Acti∣on, which he may have against me for the Land, yet I shall take advantage of this Fine, and the other shall have no advantage against me, because of this Covin, for if this should be admitted, it will countervail the benefit which is intended to be by means of the Statute of Fines.

And if a Disseisor enfeoffee another upon Condition, to the intent that a Fine with Proclamations shall be levied to the Feoffee to bar the Disseisee, and after the Disseisee is barred, the Disseisor enter for the Condition, he shall yet take advantage of the Fine against the Disseisee.

And Popham put a case which was in this Court, 23 Eliz. upon a speciall Verdict which was between Okes Plaintiff, upon the Demise of John late Lord Sturton of Cottington which was this.

The Lord Sturton was Tenant for life of certain Lands in Lighe in the County of Somerset, the remainder in Tail to Charles late Lord Sturton, Father to the said Iohn Lord Sturton; and the said Charles Lord Sturton, disseised the said Lady Sturton, and levied a Fine of the said Land to Cot∣tington and his Heirs, with Proclamations according to the Statute, and war∣ranted it against him, and his Heirs.

And the said Lord Charles dyed before the Proclamations past, and the Warranty descended upon the said John Lord Sturton, after which, and before the Proclamations past, the said Lady Sturton entred upon the said Cottington, after which the said Lady died, and after her death and all the Proclamations past, the said John Lord Sturton as Heir in Tail entred, and made the Lease to the said Okes, upon whom Cottington the Defendant en∣tred, as under the right of the said Cottington the Conusee. And I percei∣ving the Court strongly to incline upon the matter of Warranty, that it shall bar the entry of the Heir, and make a discontinuance against him, ac∣cording to the inference which is taken by Littleton in his Chapter of Dis∣continuance, because the truth was, and so acknowledged to the Court (al∣though it were omitted in the Verdict) that the said Charles Lord Sturton, was attained of Felony and Murther, and so the blood corrupted between the said Charles and John Lord Sturton, wherby in a new Action the Garran∣ty had not hurt the Title of the said Lord John.

I then moved the Court upon the other point of the Fine with Proclama∣tions; and the Court also agreed in this point, if the Warranty had not been, that yet the Fine with Proclamations shall bar the said John Lord Sturton, notwithstanding the entry made by the Lady Sturton were before the Proclamations past, because that notwithstanding his regresse made, the Reversion remains in Cottington not defeated by his regresse, in respect of the Statute whch makes that the Fine remains effectuall against the Heir in Tail, if nothing be done by him to undo it before the Proclamations past as by claim, regresse, and the like; but the Act of a stranger shall not help him, wherby Iudgment being therupon given against the said Okes, the said John Lord Sturton stood satisfied, and the Cottingtons enjoy the Land to this day; wheras, if this opinion of the Court had not been on a new Action, the said Sir John might have been relieved against the Warranty.

And Gaudy said, that this was a very good Case for the point upon the Statute in this case.

Earl of Shrewsbury versus Sir Thomas Stanhop.

8. GIlbert Earl of Shrewsbury brought a Scandalum Magnatum against Sir Thomas Stanhop Knight, and it was upon the Statute Tam pro Domina Regina quam pro seipso, &c. For that communication was had be∣tween the said Sir Thomas, and one Francis Fletcher, of divers things touch∣ing the said Earl, the said Francis at such a day and place, said to the said Thomas,

My Lord (the said Earl meaning) is a Subject (innuendo) that the said Earl was a Subject of the now Queen) the said Sir Thomas then and there said of the said Earl these slanderous words, to wit, he (intending the said Earl) is sorry for that (meaning that the said Earl was sorry that he was then a Subject to our said Soveraign Lady the Queen) that is his grief (meaning that it was grief to the said Earl, that the said Earl was Subj••ct to the Queen) to the damage of the said Earl of 20000l. To which the said Sir Thomas Stan∣hop said, that a question was formerly moved between the said Earl and the Defendant, touching the subversion and drawing away of certain Weares heretofore erected by the said Sir Thomas at Shel••ord, in the said County of Nott. where the Action was brought to oust the River of Trent there, & that for the subversion therof a Petition was exhibited to the privy Councell of the Queen, before the speaking of the said words, by certain Inhabitants of the County of Lincoln, and divers other places not known to the Defendant, with the privity, allowance and knowledge of the said Earl, which Petition at the time of the speaking of the said words, depended before the said Councell not determined, wherupon at the day and place comprised in the Declarati∣on,

there was Communication between the said Defendant and the said Fran∣cis Fletcher concerning their purpose to have the said Wears subverted, and touching the said Petition, upon which the said Francis said to the said De∣fendant, the matter (meaning the Petition aforesaid, hanging undetermined before the Councell aforesaid) is to be heard before the privy Councel mea∣ning the aforesaid Councell of the Queen) and what their Honours (mean∣ing the Councell aforesaid) determine my Lord (the aforesaid Earl meaning) will willingly obey: To which the said Francis then there answered saying, My Lord (the aforesaid Earl meaning) is a Subject, upon which the said De∣fendant (they then having speech as well of the said Petition, as of the order therupon to be taken by the said Councell) answered saying, the words com∣prised in the Declaration, meaning that he was sorry, and grieved that he was subject to the order to be made upon the Petition aforesaid by the said Councell, and averred that this was the same speech upon which the A∣ction was grounded: upon which it was demurred in Law, and for cause shewn according to the Statute it was alledged that the bar was defective, be∣cause it is not alledged at what place, nor by whom, nor against whom the Petition was exhibited; and also because that by the Bar the matter of the Declaration is not confessed, avoided, or traversed, and also that the Bar was insufficient: And it seemed to Fennor, that the matter of the Bar had been sufficient if it had been well pleaded: but the Plaintiff alledgeth the words to be spoken in one sence in the Affirmative, and the Defendant shews matter also in the Affirmative which proves the words to be spoken in ano∣ther sence then the Declaration imporrs, and two Affirmatives can never make a good Issue, and therfore the Defendant ought to have taken a traverse to that which is comprised in the Declaration, and for want of this traverse the plea in Bar is not good.

Gawdy said, that the Bar is not sufficient neither in matter nor form; not in matter, because that wheras Fletcher said, that the said Earl was a Subject, this can have no other sence, but that he was a Subject to the Queen in his Allegiance and her Soveraignty, and so much is drawn out of the course of their former speech, and therfore the answer which the Defendant made to it refers to his subjection of alleagiance, and not to the matter of obedience, which he owed to the order of the said Councell, and if it cannot have any other sence in good understanding, he cannot help himself now by an Innu∣endo, which is in it selfe according to common intendment, contrary to that which the nature of the words in themselves do purport: And if it had been good for the matter, yet it is not good for the form, for want of a Traverse, for without the Traverse the plea is not answered in that case which is laid to the charge of the Defendant.

But Popham and Clench held strongly to the contrary, and that this Bar is good in matter, and (as the case is) cannot be otherwise, and that the form also is good enough, and yet the two Affirmatives cannot make a good Issue: but in case of two Affirmatives, a Traverse shall not be, but where the Affi••matives do not agree in one. As if the Defendant in Trespasse In∣titles himself by the Feoffment of a stranger, and the Plaintiff reply, and maintain that the same stranger did enfeoff him, this cannot make a good Is∣sue without a Traverse of the Feoffment alledged to be made to the Defen∣dant.

But in the same case if the Plaintiff saith, that true it is, that the stranger enfeoffed the Defend ant, but this was to the use of the Plaintiff and his Heirs, there no Traverse shall be on the Plaintiffs part, because as to the matter of the Feoffment it agrees with the Defendant, in which case it shall not take any Traverse, but there the Traverse shall come on the Defendants part to maintain the Feoffment to his own use, Absque hoc, that the Feoff∣ment was to the use of the Plaintiff, for now that which the Defendant saith,

(albeit it be in the Affirmative) yet it is a Traverse to that which the Plaintiff hath alledged, and therfore he needs not traverse the plea: And so a diversi∣ty where the Affirmative is, to traverse that which is alledged by the other party, and where not, for in one case the conclusion shall be with a Traverse, and in the other not: Then in this case when the Plaintiff alledged that the Defendant spake these words, which prima facie shall be intended to be spo∣ken in this sence, as the Plaintiff hath alledged, although no Innuendo had been in the case, for if it shall not be so intended without the Innuendo, the Innuendo will not help it, yet when the Defendant hath declared the circum∣stance wherupon these words were spoken, and then the speaking of them therupon, now he hath confessed the very words themselves to be spoken, but upon the circumstance discovered to be in another sence then prima facie, they are to be taken, and therfore he shall not take a Traverse, for he acknowledgeth the very words, but not the intendment which the very Law prima facie presumes upon the words, and therfore shall not take a Traverse: for this intendment of Law being answered by matter expresly in the plea shall never be traversed, as in the case put of a Feoffment, prima facie, it shal be intended to be to the use of the Feoffee, yet when the other party main∣tains that this Feoffment was to his use, he shall not take a Traverse to that which the Law intends and presumes.

And if a man upon speech had with a Hunter, saith, That he hath murther∣ed all the Hares within 7. miles of his house, and another answer and say, he is a Murtherer indeed, wherupon the Hunter brings an Action upon the Case against him, for saying, that the Plaintiff was a murtherer, the Action will well lye.

Yet when the other shall discover the communication wherupon the words were spoken, this shall be a good Bar without a Traverse yet if it be true that there were no such communication between the parties as is mentioned in the Bar, the Plaintiff then hath good cause of Action, and therf••re he may well say, De injuria sua propria absque tali causa, and this being sound it shall be against the Defendant.

So upon speech of a Butcher who had killed a 1000. Oxen in a year, and one hearing it will say, that he is a notable Murtherer, this upon the matter disclosed is not actionable.

And it shall be mischievous by a Traverse or by pleading generally not guil∣ty, to put such speciall matter in the mouth of Lay-people to give their Ver∣dict upon, being ignorant, and therfore easie to be miscarried in the••r judg∣ment, and therfore it shall be the rather admitted by speciall pleading to be put to the judgment of the barred Judges, then into the mouths of lay Gents.

And here when Fletcher speaking of the order to be taken by the Coun∣cell, upon the Petition said, that the Earl would obey their order, to which the Defendant answered, that he knew not what the Earl would do, the said Fletcher said therupon, that he was a Subject, and what was the intent of Fletcher in saying so? no other, but that because he was a Subject, therfore he ought to obey; and if it be so to be understood, as of necessity it ought, (or else they were not spoken by Fletcher to any purpose, which cannot be intended) then shall the words following (being spoken therupon by the De∣fendant) be taken to be spoken in answer to the matter of the Speeches spo∣ken by the said Fletcher, and this, is that he was sorry, and it was his grief that he must be so subject as to be bound therby to obey their Order: as if a man saith to another, that he was sorry that he was so subject, that he must obey a Iudgment against him in the Queens Court, this is no cause of Acti∣on, for this tends but to his subjection to the Law, or good order, or the like, which do not give cause of Action: As if one saith of another, that he is of the Temple, who alwaies rebell against the Governours of the said house, then saith another to him, Will you then say and maintain that he is

a Rebell, yes, sayes one of the other, I will do so; If an Action be brought for the last words, the Action will lye, but if the other discover the circum∣stances of the Speech in the Bar, wherupon it was spoken, the Action will not lye: And this the Defendant may well do without traversing that which is alledged, because he acknowledgeth it, although in another sense, then the Law Prima Facie imports upon the Declaration.

And if in Speech between two, one of them saith of a stranger, that he hath treacherously betrayed his Friend in revealing all his secrets, and coun∣cell, wherupon the other then saith, that he hath done as a Traytor ther∣in, and the other saith to him again, he is a Traytor, and he answering to it, saith, true, he is a Traytor; Now if the stranger brings an Action of the Case against him, for saying of these last words, Prima Facie, it imports good cause of Action, without any Innuendo, as that he intended therby that he was a Traytor to the Queen, because the words in common intend∣ment have such a sence, yet upon the matter disclosed by way of Bar, with the circumstances how they were spoken, the Plaintiff shall be barred, if he cannot maintain that they were spoken without such a cause, which alter the intendment that the Law hath otherwise of the words.

And Gawdy agreed also, that in such cases the Defendant may plead the generall Issue, and upon the matter also the Jury ought to find him not guilty.

But Popham and Clench sayd, that this was a dangerous matter to be put in the mouthes of the Lay Gents, as hath been said before, and therfore to put it to the Iudgment of the Law by pleading.

And for the exception they ought to have shewn here, where, by whom, and against whom the Petition was delivered, to this they said, that the ex∣ception was to no purpose, for this was but a conveyance to the Speech used, which Speech was the substance of the Bar; and in this they put the case of the Lord Cromwell which was in this Court, 22 Eliz. Rot. 752. In an A∣ction upon the Statute of Scandalum Magnatum, by him brought against Thomas Dye Clark, for saying to the Lord Cromwel, It is no news though you like not of me, for you like of those that maintain Sedition against the Queens proceedings; in which the Defendant said, that he was Vicar of North Linham, in the County of Norf. and that the Plaintff mentioned one Vincent Goodwyn Clark at such a time, and one Iohn Trendle at such ano∣ther time, neither of them being licenced to preach in the said Church, a∣gainst the will of the said Defendant, and shew how they severally preached there in their Sermons (and shew certainly in what point) Seditious Do∣ctrine against the Laws of the Church, as against the Crosse used in Bap∣tisme, and the wearing of the Surplice, and that afterwards in speech ther∣upon between the said Plaintiff and him, the Plaintiff said to the Defendant, That the Defendant was a false Knave, and said in English words, that he liked not of the Defendant; wherupon the Defendant said the words com∣prised in the Declaration Innuendo, That he liked of the said Goodwyn and Trendle who maintain Sedition (Innuendo) seditious Doctrine against the Queens proceedings. Innuendo predict Leges & Stat. Eccl••siae hujus regni Angl. &c. And the Plaintiff was put to answer, Scilicet de injuria sua pro∣pria absque tali causa, &c.

And note in this case, the Defendant would first have justified for the mat∣ter preached by one, and it was not allowed by the Court, but he was put to speak to both, or otherwise it had not been good because his speeches were in the plurall number, to wit, That he liked of those, which refers to more then to one. And it was said in this case, that the word (Subject) might have se∣verall significations according to the circumstance wherupon it is spoken: As Subiect generally without more, is to be intended of the Queen, but accord∣ing to the circumstance, it may be said, Subject of England, or Subject of Ire∣land,

or Subject to the Law, or subject to any other authority, or power set over him, or subject to his Affections.

And if a man saith of another, that he is a Subject, and therfore he ought to serve the Queen in her Warrs, and he answers, that he is sorry for that, and is grieved for it, no Action wil lye for this, because the grievance refers to service, which is to be done, and not to his Subjection as a Subject.

Dillon versus Fraine.

9. IN Trespasse brought by William Dillon Esquire, against John Fraine, for breaking of his Close at Tavestock in the County of Devon, called Seden, upon not guilty, and a speciall Verdict, the case appeared to be this, to wit, that Sir Richard Chudleigh Knight, was seised in his Demesne as of Fee, of the Mannor of Hescot, with the Appurtenances, in the County of Devon, of which the said Close was parcel, and so seised, 26 April, 3, & 4 Phil. & Mar. by his Deed of Feoffment, of the same date enfeoffed Sir Tho. Saintleger Knight, and others, and their Heirs, of the said Mannor, to the use of the said Sir Richard Chudleigh and his Heirs, of the body of the said Elizabeth, then the wife of Richard Bainfield Esquire, lawfully begotten, and for default of such Issue, then to the use of the said Sir Richard Chudleigh, and of his Heirs of the bodies of other wives, of other persons lawfully begot∣ten: And for default of such Heirs, then to the use of the performance of the Will of the said Sir Richard Chudleigh for 10. years after his decease, and after the said Term finished, then to the use of the said Sir John Saintleger and his Co-feoffees and their Heirs, during the life of Christopher Chudleigh, Son and Heir apparant of the said Sir Richard, and after the death of the said Christopher, then to the use of the first Issue Male of the body of the said Christopher, and to the Heirs Males of the body of this first Issue Male, and for default of such Issue, to the second Issue Male of the body of the said Christopher, & to the Heirs Males of the body of this second Issue Male, and so to the tenth Issue Male: And for default of such Issue, then to the use of Thomas Chudleigh, another Son of the said Sir Richard, and of the Heirs of his body lawfully begotten; And for default of such Issue, to the use of O∣liver Chudleigh another Son of the said Sir Richard, and of the Heirs of his body lawfully begotten: And for default of such Issue, to the use of Nicholas Chudleigh another Son of the said Sir Richard, and of the Heirs of his body lawfully begotten, and for default of such Issue, to the right Heirs of the said Sir Richard Chudleigh for ever; wherby they were seised accordingly, after which the 17th. of Novemb. 5, & 6. Phil. & Mar. the said Sir Richard died without any Heir of the body of any of the wives before mentioned: And after that the said Christopher took to wife one Christian Strecheley, after which, to wit, the 14th. day of August, 1 Eliz. the said Sir John Saintleger and the other Feoffees, by their Deed of the same date, enfeoffed the said Christopher of the said Mannor, to have and to hold to him and his Heirs for ever, to the use of the said Christopher and his Heirs, the said Oliver Chud∣leigh then being living, after which, to wit, the 20th. day of September, 3 Eliz, the said Christopher had Issue of his body lawfully begotten, one Strech∣ly Chudleigh his first Issue Male: And after this, to wit, the 30. day of March, 5 Eliz. the said Christopher had Issue of his body lawfully begotten, one John Chudleigh his second Issue Male, after which, to wit, the first day of July, 6 Eliz. the said Christopher by his Deed indented of the same date, and inrolled within six months, according to the Statute bargained and sold the said Mannor to Sir John Chichester Knight, and to his Heirs, and in the interint also between the date of this Deed, and in the inrolement therof, to wit, the 6th. day of July, in the same 6th. year, by his Deed of the same date, the said Christopher enfeoffed the said Sir John Chichester and his Heirs of the said Mannor, and by the same Deed warranted it for him and his Heirs,

to the said Sir John Chichester and his Heirs, wherupon the said Sir John Chichester entred into the said Mannor, after which, to wit, the first day of October, 12 Eliz. the said Christopher died, after which the 7th. day of No∣vember, 13 Eliz. the said Stretchley Chudleigh died without Issue of his body: And after the death of the said Sir Richard Chudleigh, to wit, the 6th. day of September, 7 Eliz. the said Sir John Chichester enfeoffed one Philip Chiche∣ster and his Heirs of the said Mannor, to the use of the said Philip and his Heirs.

And the said Close being Copyhold and Customary Land of the said Man∣nor demisable by the Lord of the same Mannor, or his Steward, for the time being, for life or lives by Copy of Court-roll, according to the custom of the said Mannor.

The said Philip at a Court holden at the said Mannor, for the said Mannor, the 8th. day of December, 15 Eliz. by Copy of Court-roll granted the said Close to the said John Frain, for Term of his life, according to the custom of the said Mannor, after which, to wit, the 11th. day of March, 28 Eliz. the said John Chudleigh being now Heir to the said Christopher, enfeoffed the said William Dillon of the said Mannor, to have and to hold to him and his Heirs, to the use of the said William and his Heirs for ever, wherby he entred, and was seised, untill the said John Fraine entred into the said Close upon him, the 8th. day of February, 30 Eliz. upon which entry of the said Fraine this A∣ction is brought.

And for difficulty of the case it was adjourned into the Exchequer Chamber before all the Iustices and Barons of the Exchequer; And there it was a∣greed by all, that a Warranty descending upon an Infant shall not bind him, in case that the entry of the Infant be lawfull into the Land, to which the Warranty is united: But the Infant ought in such a case to look well that he do not suffer a descent of the Land after his full age, before he hath made his re-entry for then the Warranty, when he is to have an Action for the Land, shall bind him.

And they agreed also that a Copyhold granted by a Disseisor, or any other who hath the Mannor of which it is parcel by wrong, shall be avoided by the Disseisee, or any other who hath right to the Mannor by his entry or recove∣ry of the Mannor.

And so by Popham it was agreed by the Iustices in the case of the Manner of Hasselbury Brian, in the County of Dorset, between Henry late Earl of Arundell, and Henry late Earl of Northumberland: but then he said, that it was agreed, that admittance upon surrenders of Copyholders in Fee, to the use of another, or if an Heir in case of a Descent of a Copyhold were good, being made by a Disseisor of a Mannor, or any other who hath it by Tort, because these are acts of necessity, and for the benefit of a stranger, to wit, of him who is to have the Land by the surrender, or of the Heir: And al∣so Grants made by Copy by the Feoffee, upon condition of a Mannor, be∣fore the Condition broken, are good, because he was lawfull Dominus pro tempore.

And for the matter upon the Statute of 27 H. 8. what shall become of this future use ••imited to the first, second, and other Issues Males not in Esse at the time of the Feoffment.

Ewens, Owen, Bateman, and Fennor said, That an Use at Common Law is no other then a confidence which one person puts in another, for a confidence cannot be in Land, or other dead thing, but ought alwaies to be in such a thing which hath understanding of the trust put in him, which cannot be no other then such a one who h••th reason and understanding to perform what the other hath committed to him, which confidence shall bind but in privity, and yet the confidence is in respect of the Land, but every one who hath the Land is not bound to the confidence, but in privity shall be said to be in the

Heir, and the Feoffee who hath knowledge of the confidence, and in him who cometh to the Land by Feoff••ent without consideration, albeit he hath no knowledge therof, and yet every Feoffee is not bound although he hath knowledge of the confidence, as an Alien Person, Attaint, and the like, not the King, he shall not be seised to anothers use, because he is not compella∣ble to perform the confidence; nor a Corporation, because it is a dead body, although it consist of naturall persons: and in this dead body a confidence cannot be put, but in bodies naturall.

And this was the Common Law before the Statute of 27 H. 8. Then the Letter of the Statute is not to execute any Vse before that it hapneth to be an Vse in Esse; for the words are, Where any person is seised to the use of any other person, that in such a case, he who hath the Vse shall have the same Estate in the Land which he had before in the Vse; Ergo, by the very letter of the Law he ought to have an Estate in the Vse, and there ought to be a person to have the Vse before the Statute intends to execute any possessi∣on to the Vse, for the words are expresse, that in every such case he shall have it, therfore not another: And therfore the Statute had purpose to execute the Vses in possession, Reversion, or Remainder, presently upon the convey∣ance made to the Vses: But for the future Vses which were to be raised at a time to come upon any contingent, as to the Infants here, not being then born, the Statute never intended to execute such Vses untill they happen to have their beeing, and in the mean time to leave them as they were at Com∣mon Law, without medling with, or altering of them in any manner untill this time, and if before this time, the root out of which these contingent Vses ought to spring be defeated, the Vse for this is utterly destroyed, and shall never afterwards have his being: as here by the Feoffment made by the said Sir John Saintleger and his Co-feoffees, who then were but as Te∣nements pur auter vie, to wit, for the life of Christopher, and which was a forfeiture of their Estate, and for which Oliver Chudleigh might have en∣tred, it being before that the said Strechley or John Chudleigh were born, the privity of them from Estate. being the root out of which this future use ought to have risen is gone and destroyed, and therfore the Contingent Vses utterly therby overthrown.

As if before the Statute of 27 H. 8. Tenant for life had been, the remain∣der over in Fee to an Vse: If the Tenant for life had made a Feoffment in Fee, and he in the Remainder had released to the Feoffee, the Vse had been gone for ever, so in all these cases of contingent Vses at this day, for he who cometh to the possession of Land by Disseisin, or wrong done to the Possessor, who is seised to anothers use, shall never be seised to anothers use.

And the case being so, that it is out of the letter of the Statute to execute such contingent Vses, it is more strong for them out of the meaning of the Statute to execute, then before they happen to be in Esse: for this shall be to make all mischiefs comprehended in the Preamble of this Statute, and against which the Statute intended to provide sufficient remedy in a worse mischief then they were before the making of the same Statute, and this shall be but a perverse instruction of the Statute.

And they said, that the subtleties used from time to time by means of those Vses, to the great deceit and trouble of the people, were the cause of the ma∣king of this Statute, 27 H. 8. and by all the Statutes formerly made touch∣ing Vses, it appeareth that they were all taken to be grounded upon fraudu∣lent and crafty devises, and therfore this Law had no great purpose to favour them, but a Fortiorari, not to make them in worse case by means of the Sta∣tute then they were before, and therfore it shall not be taken that the Vse is executed by the Statute, which stands upon a contingency, of which a grea∣ter mischief will ensue, then there was in such a case before the Statute, and therfore by the Feoffment made in the interim, before the birth of the In∣fants,

which otherwise ought to have preserved the Vse, this Vse was utter∣ly destroyed; and although the Feoffee of Christopher had notice of the Vse, yet this doth not now help in the case, because the Feoffment did wrong to the Estate first setled, which was subject to the Vse, and extinct in the same possibility which had been otherwise in the Feoffees to have given livelyhood to the said Contingent Vse: And therfore the Iudgment by them ought to be, that the Plaintiff shall be barred.

Walmesley, That the great mischief which was at Common Law upon these Feoffments to Uses, was, that none could know upon the occupation of the Land, who was true Owner of the Land, for Cestay que Vse was the Per∣nor of the Profits, but in whom the Freehold or Inheritance of the Land was, there were not many which knew, wherby great mischief came to the assu∣rances which men had of Land which they purchased, and by it men knew not against whom to bring their Actions to recover their Rights, and by it Wives lost their Dowers, Husbands their Tenancy by the Curtesie, Lords their Escheats, Wardships, and the like.

And this mischief hapned by reason that one had the profit, and another the estate of the Land: And the Statute was made to put the Land and the E∣state quite out of the Feoffee, who before did not meddle with the Land to Cestay que Use, who before had but the occupation and profits of the Land, and to this intent the letter of the Law serves very well, which sayes that the Estate of the Feoffee shall be cleerly in Cestuy que Use, and therfore nothing by the intent and letter of the Law is now to remain in the Feoffee, no more then a Scintilla juris nemor'd in Brents Case in my Lord Dyer. Eliz. and the whole Estate in the interim untill the contingent happen shall be in them who have their Vses in Esse, and when the Contingent happen, the Statute gives place to this Contingent Vse, and by the execution therof comes be∣tween the Estates before executed, and as out of these by the Statute, but nothing is now after the Statute in the Feoffees, for the purpose of the Sta∣tute, was (as I have said) to take away all from the Feoffee, for all was devested from him, because that betwixt the Feoffor, & the Feoffee was all the fraud before the Statute, and the very letter of the Statute is to extinguish and extirpate the assurances fraudulently made, which was alwaies by rea∣son of assurances made between the Estate of the Land in one, and the pos∣session therof in another, and to cause that now that the Estate shall be to the use, where the occupation was before: And this Statute was not made to extinguish or discredit Vses, but to advance them, as by bringing the very Estate in possession to the Vse, and by it the trust now taken from all others who were trusted with it before, so the Statute doth not condemn the uses, but the fraud which was by reason of them before. And the Statute being, that the Estate, Right, and Title of the Feoffees shall go to the uses, therfore no∣thing remaineth in the Feoffees, but all by authority of Parliament adjud∣ged to be in Cestay que use, which is the highest Iudgment that can be given in any Court, and the words (Stand and be seised at any time) refer as well to the future, as present uses, and the Statute intended as well to help the u∣ses which shall be upon any Contingent, as those which are at present, for a future or contingent Vse is to be said an Vse, according to its nature or qua∣lity, and it shall be executed according to its quality when it happen. And the words are, that the Estate which was in the Feoffee shall be in Cestay que use and not the Estate which is, and therfore when the use hapneth to be in an instant, the Estate which at the first Livery was in the Feoffee, to this use shall now be executed in possession to this contingent use, albeit it self was altogether executed (as I said before) in the Vses which were in Esse, and if so, it followeth that nothing which is done in the mean time by the Feoffee or can be done by any other, can prejudice or hurt the execution of this Vse in contingency when the contingency happen.

And for the case of Brook, 30 H. 8. it is plain in paint, which is this.

A Covenant with B. that if B. enfeoff him of three acres of Land in D. that then the said A. and his Heirs, and all others seised of such Lands shall stand therof seised to the use of the said B. and his Heirs, after which A, en∣feoffed a stranger of this Land, after which B. enfeoffed the said A: of the said three acres, now the use shall be to the said B. and his Heirs of the said other Land, for the Statute so binds the Land to this Contingency when it happens, that by no means it can be defeated, and this is the cause that Lea∣ses made by force of Provisoes comprised in assurances are good, and cannot be avoided, for the Interests to these Leases is wrought by the first Livery and the Statute, atd therfore upon the matter, I conceive, that Judgment ought to be given for the Plaintiff.

Gawdy conceived that it is executed by the intent, but not by the letter of the Statute, for the purpose was to remove all the Estate from the Feoffee, and to put it in Cestay que use wholly, to wit, in possessions, to the Vses which were in Esse, and in aleyance as to the Vses which were to come and con∣tingent; and now by the same Statute the contingency of the possession shal go in licence of the contingent Vse, and now an Vse limited to one for life, with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. shall be in the same manner as if Land at this day had been letten to one for life, with Remainder over to the Heirs of the body of I. S. or to the first Son of I. S. and not otherwise, for the quality which he had in the Vse, the same (by the very letter of the Statute) he shall now have in the possession and Estate of the Land, and the Statute is not to undo any Vse, but to trans∣fer an Estate in the Land to the Vse.

But he said, That by the Feoffment made to Christopher, the Contingent remainder which was devested in Stretchly and Iohn Chudleigh depending upon the Estate which Sir Iohn Saintleger and his Co-feoffees had for the life of Christopher, is utterly gone and destroyed in the same manner, as where a Lease is made for life, the remainder to the right Heirs of I. S. or to the Heirs of the body of I, S. if the Tenant for life dies, or aliens, wherby he makes a forfeiture, and determines his Estate in the life of the said I. S. his Heir shall never have the Land by the remainder afterwards, because he was not in Esse, as an Heir at the time when the Estate ended, for there cannot be a remainder without a particular Estate, neither can it stand or be pre∣served.

And as in this case without a particular Estate of Free-hold, a Remainder cannot be, no more in the case now in question being now become by means of the Statute, as if it had been an Estate executed in possession; and for this cause only he conceived, that Judgment ought to be given against the Plaintiff.

And Clench agreed with this opinion in all, and both of them agreed, if there be none to take the Vse according to the limitation at the time, when it falleth to be in Possessions, that he shall never take it, although it happen to be in Esse afterwards.

Clark said, that Uses were not at Common Law, but grew by sufferance of time, as appeareth by the words of the Statute it self, and the mischief and sub∣tlety which was before this Statute was not in the Fine, Feoffment, or other Assurances of Land, but by means o•• the Uses limitted therupon, contrary to that which was used in the ancient course o•• the Common Law,, and the Sta∣tute was made to reduce the Common Law to its ancient force and course, and therfore ought to conceive such a construction, as may agree with the purpose of the makers of the Statute, and therfore the best construction of this Statute is, not to execute other manner of Uses, but in some cases to ex∣tinguish them, as where it is such, as will make the case in as ill, or worse con∣dition then it was before the making of the Statute.

It hath been agreed by all, that the Statute doth not execute any Use which was suspended at the time of the making of the Statute, as by reason of a Disseisor, or the like hapning before; and if it doth not execute the Use which is in suspence for the right which he had in the Use, how can it execute the Use which hath not any being? for in such cases, of Infants not born as here, untill they be in Rerum natura, the Use cannot have any being.

And in the same manner in all cases where the Vse is not to rise but upon a future contingent: And what good shall this Statute do, if these leaping V∣ses shall arise without being impeached? Nothing, but alwaies nourish a Viper in the bosom of the Law, which is quite against the intent of the ma∣kers of the Statute.

The Law was made to preserve peace amongst the Subjects, and to assure their Possessions, as many other Statutes did, that were made about this time, as the Statutes of Fines, Wills, and others. But if the exposition of this Sta∣tute shall be as the other side hath taken it, it will make the confusion which will happen therupon intollerable, and much worse then it was before the Statute was made and (as Walsh said) if no assurance can be made to be forcible against such a contingent Use, this will make it worse then it was be∣fore.

And hesaid, that it was not to be compared to the interest of Lands to begin at a time to come, nor to the case where a man devise that his Land shal be sold, in which case, be shall not be impeached by any manner of assurance, to be made in the mean time by the Heir, and the reason is, because the Ven∣dee takes by the Will under the Estate of the Heir, and not by the sale, and therfore upon the matter, he conceived that the Plaintiff ought to be barred.

Periam said, that Uses were at Common Law, and to prove it, he vouched 24 H. 8. abridged in Brook. And he said, that there have been alwaies trusts, Ergo, Uses ab initio, but they had not such estimation at the beginning as they have had by continuance of time, and so it was of Copyholds: And these Uses at Common Law bind but in privity according to the trust, but do not bind in the possession of him who cometh to the Land in the Post: But now by the Statute all trusts are gone, and the Estate of the Land it self transfer∣red to the Use, and now the Use guides the Land, and not the Land the Use.

And the Statute did not intend to destroy any Use, but to bring it back to the Possession, according to the course of the common Law, and to avoid the fraud.

And as before the Statute the Use it self in such a case of Contingency was in obeyance for the time, so now the Estate it self is in obeyance by the Sta∣tute, which wills, that he shall now have an Estate in the Land it self, of such a quality as he had before in the Use; for the Statute puts all cleerly out of the Feoffees, and it is not inconvenient to have a Possession so to a Contin∣gent Use, and if it had not been in the words of the Statute, yet (as hath been sayd) it shall be so taken by the intent of the Statute; for it never was the intent of the makers of the Statute to do wrong to any by means of the Sta∣tute. And therfore he put the case of Cramner, who made a Feoffment to the use of himself for his life, and after his decease to the use of his Executors for years, this Estate for years is not now vested in any, because a man can∣not have an Executor during his life, and yet it remains as in the custody of the Law, untill there are Executors to take it.

And he said, that the case of the Lady Bray was as strong to prove the case in question, to be, at he takes it, which cannot be answered, for if she had married with the Lord Bray by the assent of the Councell assigned for it, ac∣cording to the agreement, she had taken an Estate by the Contingency, but in as much as she did not do it, it was otherwise.

And we are to consider well, what we do in this case, it is a Tree, the branches wherof over-shadow all the Possessions of the Realm in effect, for

the Estates and Leases in manner of all stand upon those assurances to Uses, and to pull up such a Tree by the roots, is to put all the Realm in a confusion, and therfore if there be any mischief therin, it is better to help it by Parlia∣ment, then to alter it by Judgment. And so upon the whole matter, I con∣ceive that Judgment ought to be given for the Plaintiff.

Anderson, That an Use was not at Common Law, for the Common Law had no respect to it, but to the Feoffee, and it was the person who by the Law had any thing to do in the Land, and not Cestay que Vse, for he might punish Cestay que Vse for his medling with the Land, and Cestay que Vse had no remedy against him by no means; But by Suboepna in the Court of Conscience.

And further, an Vse being limited to another in Fee, no Vse can be li∣mited further therupon for any Estate. And it hath been well sayd, that the letter of the Statute of 27 H. 8. did not tend to execute this Vse which was not in Esse, and for the intent therof, that it did not tend to execute any contingent Vse untill that it happen, which is proved by the case, that an E∣state for years being assigned over, or granted to an Vse, the Vse of this is not executed by the Statute of 27 H. 8. as it was agreed about 27 Eliz. and what was the reason in the case, but because there was not any Seisin in the Vse, but only a possession to the Vse? wherby the words of the Statute are much to be regarded. And here how can there be a Seissin to the Vse which is not? it cannot be, and therfore for the like reason, as in the other case it is never executed, nor shall be removed by means of such an Vse, untill it hap∣neth to be an Vse in Esse.

And for Brents Case, I have alwaies taken the better opinion to be, that the Wife cannot take in the case for the mean disturbance, notwithstanding the Iudgment which is entred therupon, which was by assent of the parties and given only upon a default made after an Adjournment upon the Demurrer, for he said, that he had viewed the Roll therof on purpose; and if it be, that such a Contingent Vse be not executed untill it hapneth to be in Esse, here it appeareth, that by the Feoffment Christopher is in, of another Estate which was not subject to the Vse, because he is in by forfeiture and wrong made to this Estate, and therfore not bound to the Vse in Contingency, although he made it without consideration, and although he had notice of this contingent Vse, and therfore this contingent Vse utterly defeated before it had any being.

But in all the Cases put on the other side, it doth not appear that there was any thing done in disturbance of these mediate uses before they hapned, and therfore not to be compared to this case, wherby he conceived that the Plaintiff ought to be barred.

Popham said, That in as much as the manner of assurance made by Sir Ri∣chard Chudleigh may seem strange, and in some manner to touch the repu∣tation of the said Sir Richard (who was a grave and honest Gentleman) to those who heare it, and do not know the reason why he did it, which I re∣member to be this as I have heard, to wit, That the said Christopher had kil∣led one Buller a Gentleman of good reputation, wherupon he fled into France, and the said Sir Richard doubting what would become of his Estate; if he should dye before he had setled his Land, and yet having a desire to have power to undo the assurance which he purposed to make, if he pleased, his Councell then thought the best way to make and devise the assurance, so, that such an Estate of Inheritance might therby be in him which could not descend to the said Christopher, and yet such, that he might therby undo the assurance made by the Recovery when he pleased, and yet such also as should never take effect in any of the Issues of his other Wives, to the prejudice of his right Wives, because he never had a purpose to marry with any of these Wives.

And to that which hath been touched by Periam, That this Limitation first made is a Fee-simple in Sir Richard, I conceive cleerly the contrary, For if it should be so, then no Vse could be limited over upon this Fee-simple, as hath been said before, and therfore all the remainder of the Case had been to no end; but he said, that it was an Estate-tail speciall in Sir Richard, and denied the opinion of Ay scough taken so in 20 H. 6. and this by reason of the Statute of Donis conditionalibus, which wills Quod voluntas donatoris se∣cundum formam doni in charta doni manifeste expressam de caetero observe∣tur. And here it is expresse, that the Heirs of Sir Richard begotten upon any of the said Wives shall have the Land, and therby it shall be understood that his Heirs shall be intended by common intendment the Heirs by him. To which opinion Anderson agreed.

And for the matter, Popham conceived cleerly that there was not any such use at Common Law as we commonly call an use, and yet he acknowledged there were alwaies trusts at Common Law; but every trust is not to be said an use: for none will doubt but that a t••ust may be, and is many times put in o∣thers at this day, as upon pu••chase•• made in other mens names, and assurances also upon trust, and yet we will not say that this is an use, and without doubt such trusts were at Common Law, but not the uses aforesaid, and the reason that moved him to take the Law to be so, was, that he had not seen any an∣cient record, Statute, or Book of Law, nor any writing before the time of Ed. 3. which made any mention of this word use; and if it had been at Common Law, without doubt (as they said) some mention would have been made therof. The reasons which are alledged in 27. H. 8. and in the case vouched 24. H. 8. that a trust was at Common Law is, by the one of them the Causa Matrimonii prolocuti, which (as they pretend) ought to prove that there was a trust at Common Law.

And the other the Statute of Marlbridge, that the Lord in case of Wards against Feoffments made by Collusion, which Feoffments (they alledge) prove that a trust then was.

To which it was said, that the gift made by a woman to another, to the intent that he shal marry her, hath in it a Condition more properly implied, to wit, that if he doe not marry her, that she shall have her land back againe, for which the Common Law gives her remedy by the Action aforesaid, for if it had been but a trust, no remedy had been by the Common Law.

And for the Statute of Marlbridge the contrary therunto is manifestly proved, for the Statute speaks but of Feoffments made to Heirs apparants or upon Condition, or to the intent to enffeoff the Heir at his full age, or the like, in which cases the use alwayes goes with the Possessions, and is not to the Feffor: And the Statute of 4. H. 7. was made in vaine, which gives the Ward∣ship of Cestuy que use where no Will is declared, which had not been need∣full if Feoffments within the Statute of Marlbridge had been said to have been to Uses.

And without doubt if those who made the Statute of Marlbridge had then had knowledge of these Feoffments to Uses which were so mischievous, and more then the other Feoffments by Collusion, they then would have provided remedy for these cases of Uses.

Also the Statute de Religiosis ordains that Nec arte, nec ingenio, Lands shal not be conveyed in Mortmain, and therby it was conceived that a full provi∣sion had been made against these Mortmains, and yet in 15 Rich. 2. Provision was made against Uses conveyed in Mortmain to Religious or other Corpora∣tions of which they took the Profits.

And without doubt those who were so precise in the making of the Statute of Religiosis against Mortmains, would also have made provision for the uses if they had then been known.

But to cleer this point, without all controversie the Statute it self of uses, 27 H. 8. makes it plain, which saith expresly that by the Common Law of the Realm, Lands or Tenements ought not to passe from one to another, with∣out solemn Livery, matter of Record, or writing, and that these Feoffments to uses were Errors used and accustomed within the Realm, to the Subversi∣on of the ancient Laws; therfore it stands not with the ancient Common Law of the Realm, as all the Parliment took it, which is more to be re∣garded then any Book vouched. But see how, and when they began and crept in at Common Law, and it shall be easily perceived (as it hath been well said by some of those who argued to this point at the beginning) that they began by two means, to wit, by fraud, and by fear. And he said, that the first Book which he had seen in all the Books of the Law, which tend to an use, is the case of 8. Assise, which makes mention that the Counsee of a Fine entred in∣to the Land in the right of another, which is to be taken to anothers use. And in the Quadragessim••s of Edw. 3. mention is made of the Feoffees of the Lord Burglash, who sued to the King by petition, and by the Statute of 50 Ed. 3. cap. 6. mention is made that divers gave their Lands to their Friends to have the profits. and afterwards fled to priviledged places, and lived there to the hinderance of their Creditors; And therfore it was provided that in such a case execution shall be made, as if no such assurance had been made. And by 2 Rich. 2. these are called Feoffments to uses, and made by craft to deceive Creditors, and there is the first mention which is made in any Sta∣tute of the word (Use:) So fraud hath been alwaies the chief foundation of these Vses; yet in time they began to have some credit in the Law. And this was when men saw that the Court of Conscience gave remedy in these cases against such who had not the conscience themselves to perform the trust put in them, and to take away the danger which hapned to an infinite number of good Subjects, upon the Garboyls which hapned between the time of E. 3. and that of King H. 7. caused that in effect, all the Possessions of the Realm were put in Feoffments to uses. And the first case in the Law which speaks of this word (Use) which he ever saw was (as he said) in 5 H. 4. And in the like case by Gascoign, 7 H. 4. no remedy is given by the Law for Cestay que use, and afterwards it crept into the Law as appeareth, yet as an Error of long time used: And if before the Statute of 27 H 8. a Lease had been made for life, the remainder in Fee, to the use of B. for life, the re∣mainder to the use of the first Son of the said B. and so further as here:

If the Tenant for life had made a Feoffment in Fee to a stranger, and had not given the stranger notice of the Use, and all this were without conside∣ration, and afterwards he in the Remainder in Fee to the Use had released all his Right to the said stranger, every one of them had been hereby without re∣medy for their Uses: Were the Son of B. born before or after this wrong done: So if it were at Common Law before this Statute as hath been we••l said, and the Law being so before this Statute, then he said it was to be seen what was to be done in the case after the Statute, which will stand altoge∣ther upon this, what will become of these contingent Vses to the Sons not born at the time of the said Feoffment made by Sir John Saintleger and his Co-feoffees, by this Statute of 27 H. 8. and it seems to him cleerly that no possession is executed to any contingent use by this Statute, untill it comes in being; and that as the case is here and in some other speciall cases it shall never be executed: And one cause why such a contingent Vse shall not be executed, is, because it doth not stand with the letter of the Law, but ra∣ther is against the letter.

Another cause is, because it is utterly against the intent of the Law to

execute it, as the case is here. It doth not stand with the Letter of the Sta∣tute, for this is, Where any person or persons stand seised to the use of any other person or persons, &c. And it is cleer that none can stand seised to the use of him who is not, neither can he who is not in rerum natura have any use; therfore the case here doth not stand with the letter of the Statute to be now executed,

And further, the words following are, that in every such case, every per∣son who hath such an Use in Fee-simples, Fee-tail. for life, for years, &c. or o∣therwise in Remainder or Reversion shall stand hereafter seised and adjudged in lawfull Estate and Possessions of the Lands, &c. of such an Estate as he had in the Use: The words then in the Statute being so precise as they stand, to wit, that in such case he who hath such an Vse shall have the possession execu∣ted of such an Estate as he had in the Vse, excludes all other who are not in it, to have it to be executed untill that they happen to be in the same case as of that which the Statute speaks, And if they had intended to have the Pos∣session to be executed and transferd from the Feoffees to these contingent V∣ses, they would have made some mention therof as well as they did of Rever∣sions and Remainders, and they did not leave there, but mention this again, to wit, that the Estate, Right, Title, and Possessions which was in such person or persons which were seised to the use of any such person or persons, shall be hereafter cleerly adjudged in him, or those who had or have such Vse according to such quality, manner, form, and condition as he had before the use which was in them, by which it appeareth plainly, that the Right and Possession of the Feoffee shall not be vested in or to any, untill that he hath the use it self; for it is said, that it shall be in him, therfore they ought to have somthing in the Vse by the very expresse letter of the Statute, before a∣ny thing of the Possession shall be executed or transferred by this Statute from the Feoffee to Cestay que use: And how can this be said to be within the letter of the Statute, which hath so many and so precise words and bran∣ches against it. And therfore it is cleer, that if the Feoffee to use were sei∣sed at the time of making of this Statute, that the use shall not be executed by this Statute, untill there be a regresse made by the Feoffee, or in his right to revive the former use, and it had been out of the letter of the Statute.

But to this I say, that how precise soever the letter is against the execution of these contingent uses, the intent therof is yet more strong & precise against them, which I will prove cleerly by the Statute it self, which is of greater authority then the particular opinion or conceit of any Iudge whomsoever, for it is the Iudgment of all the Iudges, and all the Realm also which ought to bind all, and to which all ought to give credit. And to take the intent, the Statute was full that it was made (as is rehersed) for the Disinherison which before was to true Heirs; for the defect which before was in the assu∣rance of Purchases, for the mischiefs, in regard before men did not know (by reason of these Vses) against whom to bring their Actions to recover their Rights. To avoid perjury that it should not be so common as it was, by rea∣son of the maintenance and support of these secret Vses, for the releif of the King & other Lords, as to their Escheats, Forfeitures, Wardships, Releases and the like, for the mischief which before hapned to Tenants by the Curtesie, and in Dower, by reason of these Estates in Vse; and finally for the great Incoveniencies which hapned by reason of them, to the great trouble and unquiet of the People: These were the great mischiefs that were before the making of the Statute, and these were the things for which the Statute in∣tended to provide remedy, and if the exposition shall be as hath been on the other side, these mischiefs shall be on every part more mischievous by much, then it was before the making of the Statute, and that in such a a manner, that it shall be impossible to help any of them but by Parlia∣ment; wheras alwaies the good and true construction of a Statute is to

constrain it, so that it shall give remedy to the mischief which was before, and not to make it more mischievous, and therfore examine it by parts.

And as to the disinherison of two Heirs, it appears now that by such expo∣sition more incoveniences will arise, and that in a more dangerous degree then before the Statute; for before, for the Vse the Heir had his remedy in conscience according to the trust, and he might have made a disposition of the Land it self, by the Statute of Rich. 3. as an Owner, for the advance∣ment of his Wife, and his Children, and for payment of his debts, and the like. But as the case is now used by means of these perpetuities (as they are called) if the exposition of the other side shall hold place, the true Heir shall not only be continually in danger to loose his Inheritance, but by them the very bowels of nature it self shall come to be divided, and as rent in pee∣ces, for by reason of these the Inheritants themselves cannot make any com∣petent provision for the advancement of their Wives, Daughters, or young∣est Sons, as every one according to the course of nature ought to do, nor by reason of this can he redeem himself if he were taken Prisoner: And this will make disobedience in Children to their Parents, when they see that they shall have their Patrimony against their will, wherby such Children oftentimes become unnaturall and dissoluts, of which I in my time have seen many unnaturall, dangerous, and fearfull consequences, not convenient to be spoken of. And it staies not there, but it causeth mortall debate (as to blood) between Cosin, and Cosin, Brother, and Brother, and not so only, but between the Father himself and his Children, of which every one of us have seen the experience, for the one ought to be as a watch upon the other, to see when any thing happen to be done, to give him advantage to disinherit the very true Owner.

And I say, that it is impossible that any can keep his Possessions which hath them tyed with these perpetuities, if the exposition of the Statute should hold place which the other side hath made. And I affirm precisely, that there is not any one in England who hath had such Possessions so bound by descent of Inheritance by five years of any value, but that he hath lost all, or part of his said Land at this time, let him be never so precise in making his Assu∣rances, and yet he is not sure to have one skilfull in the Law alwaies at his elbow when he is to meddle with his Land. And therfore I put but this Case.

One who hath such a perpetuity with power to make Leases, rendring the ancient Rent, or more, hath two Farms, either of them of the ancient Rent of 20 s. a year but the one is worth 60 l. a year, and the other but 20 l. these are in hand to be better together, rendring 53 s. 4 d. for both together, ther∣fore he hath lost all, or part of his Land, according to that of which the per∣petuity is; so it is evident that it will happen to be more mischievous in time to come, and therfore by this exposition much more to the disinherison of the Heir, then it was before the making of this Statute. And which is more mischievous if a Feme putein happen to be in such a house who happen to have Children in Adultery, these Bastards shall have the Land against the will of the Father, to the utter disinherison of the true Heirs, and against the intent of him who made the limitation, by which we may see the just Judgment of of God upon these who attempt by humane pollicy, to circumvent the divine providence of God for the time to come; and of this also I have seen an ex∣ample.

And now to the mischief, that men do not know against whom to bring their Actions to sue for their Rights, and it is cleer, that now by such an ex∣position they shall be now in much worse condition then they were before▪ for before the Action was given against him who received the Profits, which is now gone by this Statute in the cases of Free-hold, and therfore if the o∣ther exposition shall hold place, it is cleer that untill the Statute of 13 Eliz.

men might have been by means of this Statute put out of all remedy to reco∣ver their rights by any manner of Action, as some put it in practice, as to make Feoffments to the use of the Feoffor, and his Heirs, untill any intend to bring an Action against him for this Land, and then over to others upon the like lim••tation, with a Proviso to make it void at his pleasure, and the like, and what mischief shall then be for the time upon such an exposition? such; that Justice therby cannot be done to the Subject; and what an absurdity shall it be to say, that such an Exposition can stand with the intent of the Ma∣kers of the Law.

And to that which hath been argued on the other side, and first to that which was said by Walmsley, That the Right, Estate, and Possession is whol∣ly out of the Feoffee, and vested to the Vses, which have their beeing by the Statute, and that upon the Contingents hapning, their Estates uncouple and give place to the contingent Vse then executed, and that the execution ther∣of shall be by a Possession d••awn to it out of the Possession which was before executed by the Statute in another: I say, that this Statute can by no means have such an exposition; for this is as much as to say, that an Vse may arise upon an Vse, contrary to what is adjudged, 36 H. 8. That a Bargain and Sale by a Deed indented, and enrolled, cannot be at this day of Land to one, to the Vse of another.

And if a man enfeoff another to the use of I. S. and his Heirs, and if I. N. pay such a summ, that then the said I. S. and his Heirs shall be seised of the same Land to the use of the said I. N. and the Heirs of his body: I. ••. paies the money, yet the Vse doth not rise out of the Possession of the said I. S. But if it had been, that upon the payment the first Feoffee and his Heirs shall stand seised to the use of the said I. N. and the Heirs of his body, it shall be otherwise; therfore somthing remains to the first Feoffee in the Judgment of the Law.

And I remember, that when I was a Counsellor at Law in the time of the Lord Dyer, where a Feoffment was made to the Vse of one for life, with Re∣mainders over, with restraint to alien, and with power given to Tenant for life to make Leases for one and twenty years, or three lives, it was much doubted whether this power so limited to him without words in the Assu∣rance that the Feoffee and his Heirs shall stand seised to these Vses, shall be good to make such Leases, or not? And therfore suppose that a man bar∣gains and sells Land to one for his life by Deed indented and inrolled, and make therin a Proviso, that the Tenant for life may make such Leases, this is to no purpose as to power to make a Lease, but the strongest case which he put was, that of 30 H. 8. which I agreed to be Law, as it is there put, whe∣ther it were before or after the Statute of 27 H 8. for it is not there put that the Feoffment was made upon any consideration to the stranger, in which case, although he had no notice of the first Covenant, yet in such a case he shall take the Possession subject to the Vse, to which it was bound by the pre∣sent Covenant: But if you consider the case well, you shall see that it was a case before the Statute, for it followeth presently in the same case, that it is there said, that it is not like the case where the Feoffees in Vse fell the Land to one who hath no notice of the first Vse, wherby it appeareth that it was a case before the Statute, for otherwise there had been no cause to have spoken then of the Feoffees to an Vse, and by the same it appeareth, if the Covenan∣tor had bargained and sold the Land to another, the same Vse had never risen upon the Covenant, and therfore it is cleer against the Law, that the Posses∣sion shall be bound w••th such an Vse in whosoevers hand it comes.

And to that which Pe••••am said, in the case of these Contingent Vses, they shall now by the Statute be in the same degree, as if Land it self had been so conveyed: and that now the Land shall be in Contingency in stead of the Vse, and that by such manner it shall be executed, and that by such means

all is utterly out of the Feoffees, because the Statute was made to determine all ••••••ter of trust to be hereafter reposed in any Feoffee: this is well spoken, but not well proved; for as I have said before, it is an exposition quite con∣trary to the letter and intention of the Law. And I agree, as hath been said, if there be none to take the Use at the time that it falleth to be in possession, according to the limitation that he shall never take it afterwards, no more of an Use upon the Statute then of ••n Use at Common Law: As if an Use be li∣mitted for life, the remainder to the right Heirs of I. S. if the Estate for life be determined in the life of I: S. the remainder shall never vest afterwards in the right Heirs of I. S. no more then if an Estate had been so made: But this makes for me, to wit, that the Estate upon the Uses executed by the Statute, shall be of the same condition as Estates in possession were at Common Law, and that they being executed ought also to be such, of which the Common Law makes allowance.

And by way of argument, I agree for the time that it is, as hath been said by them who maintain that an Use may be in suspence, as to that which is an Use in its proper nature, for it is not properly said an Use, untill that it be said in Esse, to take the Profits themselves: But I am to turn this Argument against him who made it, for if it be so, the Use can never be in suspence, and i•• so, it follows that no Possession by means of any such Use can be in sus∣pence, but staies where it was before to be executed when the Use happens to be in beeing.

But as to that, that a Reversion or Remainder may be of that which we call an Use, so also may such a Use be in suspence in the same manner as the Pos∣session it self, but not otherwise.

And as to Cramners Case formerly put, the Law is so, because nothing appeareth in the case to be done, to the disturbance of this contingent Vse in the interim before it happen. But upon the Case put of the Lady Bray, upon which it hath been so strongly relied, it was thus.

The Lord Bray made an assurance of certain Lands, to the use of certain of his Councell, untill the Son of the said Lord Bray should come to the age of 21. years, for the livelyhood of the said Son, and of such a Wife as he shall marry with the assent of the said Councell, and then to the use of the said Son and of the said Wife, and of the Heirs of the body of the said Son: The Father dies, the Son was become in Ward to the King, after which one of the said Councellors dies, the King grants over the Wardship of the said Son, af∣ter which the said Lord Bray by the assent of his Guardian, and of the survi∣ving Councellors marries the Daughter of the then Earl of Shrewsbury, after which the Husband aliens the same Land to one Butler, and dies, and upon Action brought by the said Lady against the said Butler for the same land, she was barred by Judgment, and upon what reason? because she was not a per∣son known when the Statute was made, which must be in every case of a Free∣hold in Demesne, as well in case of an Use, as in case of a Possession.

And therfore a Lease for years, the Remainder to the Heirs of I. S. then living, is not good, and the same Law of an Vse. And so it was agreed by all the Iustices very lately in the case of the Earl of Bedford, but in these Cases it remaineth to the Feoffor; and because it doth not appear at the time of the assurance who shall be the Wife of the said Son, so that there was not any to take the present Free-hold by name of the Wife of the Son, she takes nothing by the assurance, but this reason makes for our side: to wit, That if there were none to take the Free-hold in Demesne from the Use, when it falleth, he shall never take it,

The other reason in this Case was, because she was not married by the consent of all the Counsellors, for that one was dead, nor according to the power given by the agreement, but by the authority of the Guardian, that the power which the Father had upon his Son was ceased.

And Nota, That by a Disseisin the contingent Use may be disturbed of his Ex∣ecution; but there by the regresse of the Feoffee o•• his Heirs when the Con∣tingent happen it may be revived to be executed: But by the release of the Feoffee or his Heirs, the Contingent in such a case by Popham i•• ••••••red o•• all possibility at any time to be executed,

And to that which hath been said, that the generall and universall Assu∣rances of men throughout all the Realm at this ••ay ar•• by means of Vses, and that it shall be a great deal of danger and inconvenience to draw them now in question or doubt, and that it now trembleth upon all the Possessions of the Realm, and therfore it shall be too dangerous to pull up such Trees by the roots, the Branches wherof are such and so long spread, that they over∣shadow the whole Realm.

Popham said, That they were not utterly against Uses, but only against those, and this part of them which will not stand with the publike Weal of of the Realm. and which being executed shall make such an Estate which can∣not stand with Common Law of the Realm, or the true purport of the Statute; and therfore he said, that it was but to prune and cut off the rotten and corrupt branches of this Tree, to wit, that those which had not their substance from the true Sap, nor from the ancient Law of the Realm, nor from the meaning of the Statute, and so to reduce the Tree to its beauty and perfection.

The same reason he said, might have been made in the time of Edw. 4. a∣gainst those Arguments which were made to maintain the common Recove∣ries to bar Estates-tail. But if such a reason had been then made, it would have been taken for a bare conceit and meer trifle, and yet Vses were never more common then Estates-tail were between the Statute of Donis condi∣tionalibus, and the said time of Edw, 4. But the grave Iudges then saw what great trouble hapned amongst the people by means of Intails, and what in∣security happened by means therof to true Purchasors, for whose security no∣thing was before found (as we may see by our Books) but collaterall War∣ranty, or infinite delay by Voucher; and thus did the Iudges of this time look most deeply into it, wherupon, upon the very rules of Law it was found that by common Recovery with Vouchers these Estates-tail might be barred, which hath been great cause of much quiet in the Land untill this day, that now it begins to be so much troubled with the cases of Vses, for which it is also necessary to provide a lawfull remedy.

But he said plainly. That if the Exposition made on the other side shall take place, it will bring in with it so many mischiefs and inconveniencies to the u∣niversall disquiet of the Realm, that it will cast the whole Common-wealth into a Sea of troubles, and endanger it with utter confusion and drowning.

And to that which was said, That a Remainder to the right Heirs of I. S. or to the Heirs of the body of I, S. or to the first Son, as here are, so in the cu∣stody of the Law that they cannot be drawn out, & that therfore no forfeiture can be made by the Feoffment made by him who hath the particular Estate.

To that he said, That a Disseisin made to the particular Estate for life, draws out such Remainders to the right Heirs, as is proved expresly by 3 H. 6 where it is holden, that a collaterall Warranty bars such a Remainder in obeyance after a disseisin.

And by Gascoigne, 7 H. 4. If such a Tenant for life makes a Feoffment in Fee, it is a Forfeiture, but he conceived that in the life time of I. S. none can enter for it, but this is not Law; and when by the Feoffment the particular Estate is quite gone in possession, and in right also, the remainder shall never take effect, by the very rules of Littleton.

And by 27 H. 7. which is, That a Remainder cannot be, unlesse there be an Estate upon which it may have dependency, which there it cannot; but in the case of a Disseisin made to a particular Estate, it is otherwise, because there the

Estate remains in right. And to say that it shall not be a Forfeiture, because the Feoffment was made to Christopher, who then had the Fee-simple which was limited to the right Heirs of Sir Richard Chudleigh, this is not so, for by 41 E. 3. The Tenant for life himself, who also had a Remainder in Fee-simple in himself, depending upon a mean Estate-tail in another made a Fe∣offment, and by it committed a Forfeiture to him in the Remainder in tail.

But if Tenant for life, Remainder in tail, Remainder in Fee, enfeoff him in the Remainder in tail, this is a Surrender of his Estate for the immediate E∣state which was in him; wherupon this Term, Judgment was given in the Kings Bench for Fraine the Defendant, against Dillon who was Plaintiff. And it is entred, Hill. 31 Eliz. Rot. 65.

Baynes Case.

10. AT the Sessions holden at Newgate presently after this Term the case was this; one Baines with another came in the night time to a Ta∣vern in London to drink, and after they had drunk, the said Baynes stole a cup in which they drunk in a Chamber of the same House; the Owner of the said House, his Wife, and servants then being also in the House, and the cup being the Owners of the said Tavern, wherupon he was indited and com∣mitted, & this matter appeared in the Inditement, and agreed by Popham, An∣derson, and Periam with the Recorder and Serjants at Law then being there, that this was not Burglary, and yet it was such a Robbery, whereby he was ousted of the benefit of his Clergy by the Statute of 5. E. 6. Cap. 9. and was ••anged.

11. ANd at the Sessions then next ensuing 〈◊〉〈◊〉 holden, upon one who had stolen a silver Bason & Ewer of the then Bishop of Worcester, & the sale made openly in the day in a Scriveners shop in London to a stranger, the question was demanded of the Court whether the property were changed by this Sale, so that the Bishop shall not have his Plate againe, because it was al∣ledged that they prescribed that every one of their shops in London are good Markets overt through all London every day in the week but Sunday; But agreed by Popham, Egerton, Anderson, Brian, and others skilfull in the Law then being there, that such a generall custome is not good, and that this Sale made there, albeit it were openly in the shop so that every one passing by might see, it shall not bind the property as it shall doe in Market overt; for a Scriveners & Cutlers Shop or the like, is not proper for the Sale of I late nor a place to which men will go to seek for such a thing lost or stole; But a Gold∣smiths Shop is the proper Shop for it, as the Drapers Shop is for Woollen cloath, or the Mercers Shop for Silk, and the like, and to such men will go to seek for things of the like nature that are lost or stolen, and not to a Scriveners Shop or the like.

And they agreed also that a private Sale made in the Shops which are pro∣per to the nature of the thing sold, so that the Passers by cannot in reason see it in their passage, cannot bind, for reason, (upon which the Law is founded) will not admit any such custome.

Hillary Term, 37 Eliz. in the Kings Bench. Westby versus Skinner and Catcher.

1. IN Debt by Titus Westby Plaintiff, against Thomas Skinner and John Chatcher late Sheriffs of London, Defendants. for 440 l. upon Nihil debet, pleaded, and a special Verdict found, the Case appeared to be this, to wit, One Anthony Bustard with others, were bound in a Recognizance in the nature of a Statute-staple of 440l. to the Plaintif wherupon the Plaintif sued Execution out of the Chancery against the said Anthony and the other that were bound with him for the Bodies, Goods, and Lands of the said Obligers which writ of Execution was delivered to the said Defendants the 8^th day of September 30. Eliz. the Defendants then being Sheriffes of London and the said Anthony being then in Newgate in Execution in the custody of the said Defendants for 240l. at the suit of one Robert Deighton, and that afterwards, to wit, the 20^th. day of October in the same yeer the said Defendants were discharged and removed from their said Offices, and Hugh Offeley, Richard Saltonstall were then made Sheriffes of London, and that the said Anthony being in Execution for the one and the other debt, the said Defendant the said 20th. day of October by Indenture delivered the said Anthony to the said new Sheriffes in Execution for the said debt of the said Robert Deighton not giving them any no••ice of the said Execution made for the Plaintiff, and suf∣fered the said Anthony to goe at large; And whether the Defendants shall be charged for this escape was the question.

And the escape was alledged by the Declaration to be suffered by the said Defendants the said 20. day of October, 30 Eliz. and it was moved by Tanfield, that the new Sheriffs ought to take notice of their Prisoners remaining in the Goal, at their coming into their Office, at their perill, and ought to en∣quire and search for the causes that then were in custody, and not to deliver them of their own head without due course of Law.

And he put the case, That if the old Sheriff had been dead, in the mean time before the new Sheriffs had been made, shal this be an excuse to the new She∣riffs that they had no notice for what cause this Anthony had been in Prison, if they suffer him to escape? And he said that it shall not, no more here; but per Curiam the new Sheriff shall not be charged with this Escape, as to the 440l. of which they had no notice; for if this case which was private in the know∣ledge of the ancient Sheriff only upon a Writ directed to them at the suite of any party, the new Sheriffs cannot by intendment have any knowledge, unlesse it be given to them by the old Sheriffs, to whom the Writ of Execu∣tion was directed and delivered.

And the case of one Dabridgecourt, who was Sheriff of Warwick, and had one in Execution whom he kept in a private Prison by himself, for all his Executions in the Town of Warwick; and when he was discharged of his Office, and a new Sheriff made, Dabridgecourt said to the new Sheriff, That he had such a one in Execution in his custody, and offered to the said Sheriff to put him in the Indenture amongst his other Prisoners delivered to the new Sheriff, but would h••ve had the said old Sheriff to have sent for the said new Sheriff to have taken him into his custody, but the new Sheriff refu∣sed to receive him, unlesse Dabridgecourt would deliver him into the common Gaol of the County, which was in the Town of Warwick, wherupon after∣wards the Prisoner escaped; And Dabridgecourt was charged with this Es∣cape, and not the new Sheriff, for he is not compellable to take the Priso∣ners of the delivery of the old Sheriff, but in the common Goal of the Coun∣ty, and the old Sheriff remains chargeable with the Prisoner, untill he be lawfully discharged of him, and if the Sheriff dies, the party shall be rather

at a prejudice, then the new Sheriff, without cause charged with him. And in such a case the party who sued the execution may help himself, to wit, by the remaining of the body by a Corpus cum causa, wherby he may be brought to be duly in execution, and this under a due Officer.

And Anderson, Periam, and other Iustices were also of opinion, that the said Skinner and Catcher are to be charged with the escape in the principall case, wherupon Iudgment was given for the Plaintiff, which was entred; Hillar. 34 Eliz. Rot. 169. in the B. R.

Fulwood versus Ward.

2. IN a Writ of Annuity brought in the Common Pleas by George Ful∣wood Plaintiff against William Ward Defendant, the Case was thus. The Queen was seised of a Barn and Tithes of Stretton, in the County of Stafford, for the life of the Lord Paget, and being so seised, demised it by Letters Patents, dated 21. June, 29 Eliz. to the said William Ward for 21. years, wherupon the said Ward by Writing dated, 30. Iune, 29 Eliz. gran∣ted to the said Plaintiff an Annuity or yearly Rent of 10 l. out of the said Barn and Tithes for 15. years then next ensuing, payable yearly upon the 8. day of November, with clause of Distresse. The Lord Paget died the first day of March, 32 Eliz. and for the Arrearages after his death, the Plaintiff brought this Writ of Annuity, and for the difficulty therof in the Common Pleas, the Case came this Term to be argued before all the Iustices and Barons at Serjeants-Inn in Fleetstreet, where it was agreed by Walmsley, Fennor, and Owen, that the Annuity was gone by the determination •••• his Estate in the Land who made the Grant, for they said that presently upon the Grant made as before it was a Rent-charge, for by such a Rent granted in Fee, the Fee shall be in his Heirs, albeit the Grantee dies before any Election made; and such a Rent is payable from the beginning at the Land, as appeareth by 12 E. 4.

And by grant of Omnia, terras, tenementa, & hereditamenta, such •• Rent will passe, ergo, it is a Rent-charge and not an Annuity untill the Election made, and by the determination therof in the nature of a Rent, the Election is gone, as by Babington and Martin, 9 H. 6. by the recovery of L••nd charged with such a Rent by elder Title, the Annuity is gone as it see••s by their opinion, and by them and by Littleton upon a Rent-charg•• 〈◊〉〈◊〉 with Proviso, that he shall not charge the person of the Grantor, 〈…〉〈…〉 exclude the charge of the person, which proves that the Land is char•••••• Originally, and not the person, for otherwise the Proviso would be void for the repugnan∣cy; And if so, whensoever the Land is discharged, as by 〈…〉〈…〉, ••••••cent, or the like, the person therby is also discharged, and therfore ••he Iu••gment here shall be, that the Plaintiff shall be barred.

But by the chief Iustices, chief Baron, and all the other Iustices and Barons, the Plaintiff ought to have Iudgment in this case to recover the An∣nuity, for the Law gives him at the beginning an Election to have it as a Rent or an Annuity, which matter of election shall not be taken from him, but by his own Deed and folly, as in case where he purchase part of the land charged, in which case by his own Act he hath excluded himself of his Ele∣ction. But if a Feoffee upon condition grant a Rent-charge, and presently break the Condition, wherupon the Feoffor re-enter, shall not the Feoffee be charged by Writ of Annuity, surely it shall be, against all reason that he by his own act, without any folly of the Grantee, shall exclude the Grantee of his Election which the Law gives at the beginning.

And they denied the opinion of 9 H. 6. to be Law; But if the Disseisor grant a Rent-charge to the Disseisee out of the Land which he had by the

Disseisen by his re-entry, before the Annuity brought, the Annuity is gone; for this was his own act, yet in effect all of them agreed, that Prima facie, it shall be taken as a Rent-charge, of which the Wife shall be endowed, as hath been said, which passe by grant of Omnia hereditamenta, and which is pay∣able at the Land; but the reason is, because it is expresly granted out of the Land, and also for the presumption of Law, that it is more beneficiall for the Grantee to have it in such a degree, then in the other. But neither the presumption of Law, nor the expresse Grant therof as a Rent, shall not take away from the Grantee the benefit of his Election, where no default was in him, but that upon his Election he may make it to be otherwise, as ab initio. And therfore by Popham, If a Rent-charge be granted in tail, the Grantee may bring a Writ of Annuity, and therby prejudice his Issue, because that then it shall not be taken to be an Intail, but as a Fee-simple conditionall, ab initio. And if a Termer for two years grant a Rent-charge in fee, this as to the Land is but a Rent charge for two years, and if he avow for it upon the determination of the Term, the Rent is gone, but by way of Annuity it remains for ever, if it be granted for him and his Heirs, and assets descend from him who granted it.

And if a Rent-charge be granted in fee, and doth not say for him and his Heirs, if the Grantee brings his Writ of Annuity, the Heir shall never be charged therwith, yet if he had taken it as a Rent-charge, the Land had been charged with it in perpetuity.

And by him the cause why the Proviso that he shall not charge the person of the Grantor upon the grant of a Rent-charge is good, is, because the person is not expresly charged by such a Grant, but by operation of Law.

But in such a case, a Proviso that he shall not charge his Land is meerly void for the repugnancy, because there the Land is expresly charged by pre∣cised words, and therfore if it be expresly comprised in such a Grant, that the Grantee may charge the Land, or the person of the Grantor, at his Election; provided then afterwards that he shall charge his person, is not good, Causa patet.

And all agreed, that upon a Rent granted upon equality of partition, or for allowance of Dower, or for recompence of a Title, an Annuity doth not lye, because it is in satisfaction of a thing reall, and therfore shall not fall to a mat∣ter personall, but alwaies remains of the same nature as the thing for which it is given. And afterwards the same Term Iudgment was given in the Common Bench, that the Plaintiff shall recover, which is entred, &c.

And in the same case, Clark vouched that it was reported by Benloes in his Book of Reports; where a Rent was granted out of a Rectory by the Parson who after wards resigned the Parsonage, that it was agreed in the Common Pleas in his time, that yet a Writ of Annuity lies against the Grantor upon the same Grant, to which all, who agreed on this part, agreed that it was Law.

Butler versus Baker and Delves.

3. IN Trespasse brought by John Butler against Thomas Baker, and Thomas Delves, for breaking his Close, parcell of the Mannor of Thoby, in the County of Essex, upon a speciall Verdict, the Case was thus.

William Barners the Father was seised in his Demesne as of fee, of the Mannor of Hinton in the County of Glocester, holden of the King by Knights-service in Capite, and being so seised, after the Marriage had be∣tween William his Son and heir apparant, and Elizabeth the Daughter of Thomas Eden Esquire, in consideration of the same Marriage, and for the Joynture of the said Elizabeth, assured the said Mannor of Hinton, to the

use of the said William the Son, and Elizabeth his Wife, and the Heirs of their two bodies lawfully begotten, and died, by whose death the Reversion also of the said Mannors descended to the said William the Son, wh••rby he was seised therof accordingly, and being so seised, and also seised of the Man∣nor of Thoby, in his Demesne as of Fee holden also of the Queen by Knights-servivice in chief, and of certain Lands in Fobbing in the said County of Es∣sex, which Land in Fobbing with the Mannor of Hinton, were the full third part of the value of all the Land of the said William the Son, and he made his Will in writing, wherby he devised to his said Wife Elizabeth his said Mannor of Thoby for her life, in satisfaction of all her Joynture and Dower, upon condition, that if she take to any other Joynture, that then the Devise to her shall be void, and after her decease he devised that the said Mannor shall remain to Thomas his Son, and the Heirs Males of his body, and for de∣fault of such Issue, the remainder to Thomas brother of the said William for his life, the remainder to hir first, second, and third Son, and to the Heirs Males of their bodies, and so to every other Issue Male of his body, and for default of such Issue, the remainder to Leonard Barners his brother, and to the Heirs Males of his body, the remainder to Richard Barners, and the Heirs Males of his body, the remainder to the right Heirs of the Devisor: William the Son dies, having Issue Thomas his Son, and Grisell his Daughter, Wife to the said Thomas Baker; the said Elizabeth by Paroll in pais moved her Estate in the said Mannor of Hinton, and after this entred into the said Mannor of Thoby, after which the said Elizabeth died, and Thomas the Son, and Thomas the Uncle died also without Issue Male, after which the said Leonard took one Mary to Wife, and died, having Issue Anthony Barners, after which the said Mary took the said John Butler to Husband, and after this the said Anthony assigned to the said Mary the said Mannors of Thoby, in allowance for all her Dower, wherby the said John Butler as in the right of his Wife entred into the said Mannor of Thoby, wherby the said Thomas Delves by the command∣ment of the said Baker entred into the said Close, of which the Action is brought as in right o•• the said Grisell; And whether this entry were lawful or not, was the question, which was argued in the Court, in the time of the late Lord Wray; and he, and Gawdy held strongly that the entry of the said Delves was lawfull, but Clench and Fennor held alwaies the contrary, wher∣upon it was adjourned into the Exchequer Chamber.

But they all agreed, that the Waiver made by the said Elizabeth by parole in pais, was a sufficient Waiver of her Estate in Hinton, and the rather, be∣cause of the Statute of 27 H 8. cap. 10. the words of which are; That if the Joynture be made after the Marriage, that then the Wife surviving her Hus∣band may after his death refuse to take such Joynture.

And now it was moved by Tanfield, that Iudgment ought to be given for the Plaintiff, for by the Waiver of the Wife, the Inheritance of Hinton is now to be said wholly in the Husband ab initio, and therfore that with Fob∣bing being a whole third part of the whole Land which now is to be said to be left to discend to the Heir of the Devisor, as to Thoby; is good for the whole, and if so then no part therof descends to Grisell, and therfore the entry of the said Delves in her right is wrongfull.

Coke Attorney-general to the contrary, for he said, That it is to no purpose to consider what Estate the Devisor had in the Mannor of Hinton, by reason of this Waiver made by his Wife, Ex post facto after his death. But we are to see what Estate the Devisor had in it in the view of the Law, at the time of his death before the Waiver, and according to it the Law shall adjudge that he had power to make his Devise by means of the Statute; and at this time none can adjudge another Estate in him but joyntly with his wife, of which Estate he had no power to make any disposition, or to devise it, or to leave it for the third part to his Heir, for the Statute which is an expla∣natory

Law in this point) saies, that he ought to be sole seised in such a case. And further the Statute of 34 H. 8. at the end, is, that the Land which de∣scends immediatly from the Devisor shall be taken for the third part, and this Land did not descend immediatly, for it survived to the Wife untill she waived it, and therfore this Land is not to be taken for any third part, which the Statute purposed to have been left to the Heir, and therfore so much shall be taken from Thoby as with Fobbin shall be a third part to descend, wherb•• Grisell the Heir hath good right yet to part of Thoby, and therfore the en∣try of the said Delves in her right by commandment of her husband not wron∣full.

Periam chief Baron, Clench, Clark, Walmsley, and Fennor, That now by reason of the Waiver in the Devisor shall be sole seised ab initio, for the said Elizabeth might have had Dower therof, if she would, as in the like case it is adjudged in 17 E. 3. 6. and therfore a sole Seisin in the Husband, and the de∣scent to the Heir in such a case upon the Waiver, shall take away the entry of him who hath right to it. And therfore the case now for the Mannor of Hinton is within the very letter of the Statute, as well for the sole Seisin which was in the Devisor, as for the immediate descent which was from the Devisor to his Heir, and therfore remains to the Heir for a good third part of the Inheritance of the Devisor, by the very letter of the Statute, and if the Letter had not helped it, yet it shall be helped by the purport and intent of the Statute, which ought to be liberally and favourably construed for the benefit of the Subject, who before the Statute of Vses might have disposed of his whole Land by reason of Vses by his Will, and the Statute of 27 H. 8. excludes him therof, and therfore the Statute of 32. & 34 H. 8. are to be li∣berally expounded as to the Subject for the two parts, and the rather because it appeareth by the preamble of the Statute of 32 H. 8. that it was made of the liberality of the King, and because that by 34 H. 8. it appeareth that it was made, to the intent that the Subject shall take the advantage and benefit purposed by the King in the former Statute, by all which it appeareth (as they said) that the said Statutes shall be liberally expounded for the ad∣vantage of the Subject, and for his benefit, and not so strictly upon the letter of the Law as hath been moved; and so they concluded that Iudgment ought to be given for the Plaintiff.

Popham and Anderson the two chief Iustices, and all the other Iustices and Barons held the centrary, and that Iudgment ought to be given against the Plaintiff; and that by the very letter and purport of the Statutes of 32 & 34 H. 8. for they said, they are to consider what Estate the Devisor h••d •••• the Land at the time of his Devise made, without regard to that which might happen by matter Ex post facto upon the Deed of another: and if it had be••n demanded of any apprised in the Law, at the time when the Will w••s made, what Estate the Devisor then had in the Mannor of Hinton, 〈◊〉〈◊〉 is so unlearned to say, that he had other Estate in it, then joyntly with his Wife: And if so, it follows that this Mannor was then out of the letter and intent of the Law, for he was not then sole seised therof, nor seised in co∣parcenary, nor in common, and by the words he should be sole seised in Fee-simple, or seised in Fee-simple in coparcenary, or in common: It ap∣peareth that the intent of the Statute was, that he shall have full power of himself, without the means or aid of another, to dispose of the Land, of which he is by the Statute to make disposition, or to leave it to his Heir, and this he hath not for the Mannor of Hinton here.

And further the words of 32 H. 8. are, That the Devisor hath full power at his Will and pleasure to devise two parts of his Land so holden as here, and this is to be intended of such Land of which he then had full power to make disposition, ••nd this he could not then do for the Mannor of Hinton.

And further the words of 34 H. 8. are that the devision for the parts shall be made by the Devisor or Owner of the Land by his last Will in writing, or otherwise in writing, and in default therof by commission, &c. And can any say with reason, that it was the intent of the Statute that he shall make the Devision of other Lands then of those of which he then had full power to devise or to leave to his heir without any future accident to help him, or the mean of Anthony by matter Ex post facto; It is cleer that reason cannot maintain it. And the words following in the Act, which are, That the King shall take for his third part the Land which descended to the Heir of the ••state tail, or of Fee-simple immediatly after the death of the Devisor; much en∣force the opinion on this side, for it cannot be said upon the death before the Waiver that this Mannor of Hinton was immediatly descended, ergo, it ought not to be taken for the third part.

And further the words are, If the Lands immediatly descended upon the death of the Devisor, &c. do not amount to a full third part, that then the King make take into his hands so much of the other Lands of the Devisor as may make a full third part, &c. wherby it is cleer, that in this case if the wife had not waived her Estate for ten years after the death of the Devisor, that for all this time the Queen could not meddle with the Mannor of Hinton, and therfore in the mean while she might well have so much of the Mannor of Thoby, which might well have made a full third part to her, and for so much which she took the Will was alwaies void, which shall never be altered nor made good by any Waiver Ex post facto. And although the Waiver of the Fame put the Inheritance entirely in the Devisor, and in his Heir, in re∣lation to divers respects, yet as to other respects he sh••ll not be said in them with such relation, and especially upon the Statute in which we now are to respect the power as it was in him at the time of his death, before this fu∣ture Contingent.

And by Popham, If the exposition on the other side shall hold place upon the Statute, perhaps a man shall not see by the space of six years, or more, after the death of a Devisor, how his Devise shall work: As a Feoffment in Fee is made to I. S. and a Feme Covert, and their Heirs, of 10 l. Land hol∣den by Knights-service in Capite, which I. S. hath 20 l. Land in fee so holden also; I. S. makes a Devise of his 20 l. Land, the Husband lives 60. years after; none will or can deny but that for this time the Devise is not good for two parts, now the Husband dies, and the Wife waives the Estate made to her, this puts the Inheritance therof in the Heir of I. S. with relation to divers respects, but not to this respect to make the Will now good for the whole 20 l. Land, which therfore was void for the third part therof, for the Will which once was void by matter Ex post facto, after the death of the De∣visor, cannot be made good: And by him the descent in such a case is not such that it shall take away the entry of him who hath right, because it was not an immediate descent in Deed, but upon the operation of Law which gave Wardship and the like, but not to prejudice any third person.

And he said, that although the Queen, or other Lord upon eviction of the Land descended, or the determination of the Estate therof, may resort to Lands devised or assured, and take a third part therof, yet therby the Devise or Assurance remains effectuall against the Heir, but this is by a speciall clause in the Statute of 34 H. 8. which gives it to them, but no such remedy is given to the Devisee to help him if his part be abridged, or evicted: And the words are precise, to wit, If the part left or assigned to the King, or to any Lord, at any time during their Interest therin be evicted, &c. that they shall have so much o•• the two parts residue, as shall make a full third part of the remainder not evicted, &c. Wherby it appeareth, that this is given only for the benefit of the Lords, and not of the Heir, nor of the Devisee; f••r if after

the Interest of the Queen, or other Lord be determined, this which was left he evicted from the Heir, it shall not be helped against the devise, but the De∣vise remains good to the Devisee against the Heir for the whole Land devi∣sed, wherby it appeareth, that it was the very purport and intent of the Statute, that the Devise remain as it was at the time of the death of the De∣visor, without having regard to that which hapneth Ex post facto, unlesse for this point helped by this speciall clause of the Statute▪ and this is for the Lord and his Interest only, and for no other: And by him also cleerly the Statute which is an explanatory Law shall never be taken by equity in the precise point explained to impugne the point of explanation, as here the Sta∣tute wills that the Estate of Inheritance comprised in the former Statute, shall be explained to be Fee-simple, it cannot now by any equity be, as to the power to make a Devise which is meerly given by the authority of the Sta∣tute, said to be of any other Estate then Fee-simple, of which a Devise may be made: And therfore if Land be given to another and his Heirs for the term of another mans life, a Devise cannot be made of this, because it is not an Inheritance in Fee-simple, but only the limitation of a Free-hold: And where the Statute saith, having a sole Estate, we cannot by any equity, that it shall be taken of any joynt Estate, as to make any disposition of that which she had in Ioynture, and therupon the greater part resolved that Iudgment shall be given against the Plaintiff for the Defendants.

Southwell versus Ward.

4. IN a second deliverance between Richard Southwell Esquire, Plaintiff, and Miles Ward Avowant, by Demurrer upon the Avowry, the Case appeared to be this.

That Iohn, Prior of the Church of Saint Faiths in Horsham in the County of Norfolk, was seised in his Demesne as of fee, in the right of his said Prio∣ry, of 8. Messuages. 300. acres of Land, 30. acres of Meadow, 60. acres of Pa∣sture, and 200. acres of Wood, with their Appurtenances in Horsham afore∣said: And so seised, the said Prior with the assent of his Covent, by their Deed indented, shewn forth, bearing date the first day of Ianuary, 13 E. 4. and by licence of the King aforesaid, granted to William then the Master of the Hospitall of St. Giles in Norwich, and to the Brothers of the same Hos∣pitall, and to their Successors 200. Fagots, and 200. Focalls called Astle-wood, yearly to be taken of all the Lands and Tenements of the said Prior and Co∣vent in Horsham aforesaid, by the Servants of the said Prior and Covent, and their Successors▪ yearly to be carried to the said Hospitall, at the costs and ex∣pences of the said Prior and Covent, and their Successors, at the Feast of St. Michael. or 20 s. of lawfull money for them at the election of the said Ma∣ster and Brethren, and their Successors, to take yearly in the same Lands and Tenements in Horsham, to the use of the poor and infirm persons there being or coming: So that if it happen the said Fagots and Focalls, or the said 20 ••. for them to the said Master and Freres in form aforesaid, to be arrear in al••o: part. &c. then they may distrain in the said Lands and Tenements, and the Distresse detain until they be fully satisfied of the said Fagots and Focals, or of the said 20 s. for them as is aforesaid, with this Proviso further, That if at any one or more times, the said Master and Brethren have chosen to have the Fa∣gots and Focals, yet at any other time they make the 20 s. for them, and although they have taken the 20 s. for them, once, or oftner, yet at any other time they may take the Fagots and Focals themselves, and that they may so vary t••ties qu••ties, and d••strain for them accordingly, reasonable notice being given of their Election, in form aforesaid.

And the said Master and Brethren granted by the same Deed to the said Prior and Covent, and their Successors, that they or, others sufficiently war∣ranted by them, would give sufficient notice of their election yearly, the first Sunday of April, in the Church of the said Hospital, to some Officer of the said Prior and Covent, and their Successors, if they send any thither for this cause.

By force of which Grant, the said Master and Brethren were seised of the said yearly rent of the said 200. Fagots, and 200. Facals called Astlewood accordingly, and so being seised, they by their sufficient Writing enrolled of Record in the Chancery, in the first year of the late King Ed. 6. gave and gran∣ted to the same King the said Hospitall, & all the Lands Tenements and He∣reditaments of the said Hospitall; To have and to hold to him, and his Heirs and Successors for ever, wherby the said King was therof, and of the said annuall Rent seised accordingly, and so seised the 7. day of May, in the same year, the said King Edw. by his Letters Patents, bearing date the same day and year, granted the said Hospitall and the rent of the said Fagots, and Fo∣cals, and other the Premisses, to the Major, Sheriff, Citizens, and Com∣mons of the City of Norwich, and to their Successors for ever: and for 1600. Fagots, and 1600. Focals of the said annuall rent of 200. Fagots, and 200. Focals, being arrear at the Feast of S. Michael the Arch-angel, 23 Eliz. the said Ward took the Distresse, and made Conusance as Bailiff to the said Major, Sheriff, &c. And it was moved that the Avowry was not good, first, because it being matter of Election which was granted to the Master and Brethren, and their Successors, to wit, the Fuell, or the 20 s. it doth not appear that they ever made any election of the one, or the other, and untill it appeareth that they have made their Election to have the one or the other, it is not to be granted over by generall words: But by the dissolution of the Hospitall the grant for want of Election before is gone and determined.

And further, wheras the King made his Grant of the Hospitall, and of all the said rent of Fagots and Focals, without making mention of 20 s. for the same, it was moved that if it doth passe to the King, yet it doth not passe from him to the Major, &c. in as much as he granted it precisely as a Fuell, wheras it was in him as a Rent of Fuell, or of money at his Election, and therfore the King deceived in his Grant.

And further, here he hath made Conusance for the Fuell, without making mention of their Election, to have it one way, or another before the taking; but all the Court agreed that the Conusance was good, and that the return shall be awarded to him who made the Conusance: first, because that this case is quite out of the case of Election, because the rent which is granted is only out of the Fagots and Astlewood, and the 20 s. granted is not as a di∣stinct thing, but granted as a recompence or satisfaction of that, because the Grant is of the Fagots, &c. or of 20 s. for the same; so that in such a case the Seisin of the 20 s. is a good Seisin of the Fagots and Focals, and sufficeth to maintain an Assise upon this Seisin for the Fuell, but not for the 20 s. as money paid for Suit of Court is good Seisin of the Suit: And the 20 s. here is not granted in nature of a Rent of so much, but as an allowance in satisfaction for the Fuell.

And Popham conceived, that he shall have an Action of debt for this 20 s. for the fuell, after the Election made if he will, as for a Nomine poene, be∣cause it is not the principall thing granted of which the Inheritance is, but a casuall Accident in recompence therof if he will have it, or other∣wise he may distrain for it, because it is so limited to be done by the Grant it self: But they shall never have assurance of the 20 s. as a thing of In∣heritance, because it is not the thing of which the Inheritance is granted, but only granted in allowance and satisfaction of it, and therfore not to be re∣sembled to the cases where 20. quarters of Corn, or 20 s. Rent is granted to

one and his Heirs, or other such thing which stands meerly in the disjun∣ctive, to wit, to have, or take, the one, or the other.

And therfore suppose the Prior was to carry the Fuell yearly to the Hos∣pitall at the Feast of S. Michael, and yet then the Master and Brethren might have refused the Fuell, and held themselves to have the 20 s. by force of the Grant, for then originally the Election ought to have been made there: But upon the Covenant which cometh afterwards on the other part, the notice ought to have been given in April yearly before, but if it be not done, there lies but an Action of Covenant for the not doing of it, for this will not alter the nature of the Grant which was full and perfect in Law be∣fore. And here he needs not make this appearance in the Conusance, that any Election was made before the taking of the Cattel, because the Grant is of the Fuell it self, and if the other had made Election before to have the 20 s. for the Fuell, this ought to have been shewn on the other side in Bar of the Avowry, to wit, that he brought to them the Fuell yearly according to the Grant, and that they refused it, and required the 20 s. every time for it, in which case for every such refusall and Election to have the 20 s. for it, it had excluded him to have any Fuell for this year so refused.

And by Popham also, you may see a great diversity between this case, where a man is to deliver to another 20. Loads of Wood, or 20. Loads of Hay yearly out of such Land, and he does not tender them for divers years, and where a man is to take so much Fuell, or Hay out of the Land of ano∣ther, and he takes it not for divers years, for in the former case the party who is not satisfied sh••ll have all the arrears, be it never so prejudiciall to the Grantor, because it was through his own default that it was not paid, but in the other case as appeareth, 27 H. 6. 10. he shall not have any remedy for the arrears for the years past, because he took them not yearly as they were due, which sh••ll not turn the other party to prejudice, that he shall want Fuell, or Hay himself, by reason of the arrears which hapned through the default of him who ought to take it, and the Iudgment was given for him who made the Conusance, and it is entred in the Kings Bench, Mich. 33. & 34. Eliz. Rot. 229.

Southwells Case.

5. AT the end of this Term, upon the proceeding against Southwell the Iesuite, it was moved by the Attorney-general to Popham chief Iu∣stice, the Master of the Rolls, Periam chief Baron, Walmsley, and Owen Iustices, and Ewens one of the Barons of the Exchecquer upon the form of Indictments, upon the Statute of 27 Eliz. for Iesuits, &c If it need be com∣prehended in the Indictment of a Iesuite, who cometh into the Realm of Eng∣land, or any Dominions of the Queen, or shall be taken therin 40. daies af∣ter the end of this Session of Parliament, that if he doth not submit himself within three daies of his landing, if he cometh in after the 40. daies accord∣ing to the Proviso of the Statute, or that he was not so infirm of his body) where he came in before the 40. daies) that he was not able to passe out of the Realm by the time prescribed at first, because that it is comprised in the body of the Act, that it shall not be lawfull for any Iesuite, &c. being born within this Realm, or any other the Queens Dominions, & made after the Feast of S. John Baptist, in the first year of her Raign, or after this to be made by any authority derived, &c. from the See of Rome to come, be, or remain in any part of this Realm, &c. otherwise then in such speciall cases, and upon such speciall occasions, and for such time only which is expressed in this Act, and if he does, that this offence shall be adjudged high Treason &c.

And after deliberation taken, and consideration and conference amongst themselves had, they all resolved that the better course was to omit this in the Indictment, notwithstanding it be comprised in the body of the Act in the same manner as if it had been only in a Proviso; in which case it is to the Prisoner to help him by means of such a Proviso, if he can do it: for the words (other then, &c.) are but as referring to the provision subsequent in the Statute, in which case this matter shall be used but as the Proviso it self shall be; and according to this it hath been commonly put in practise by all the Iustices in all places after the Statute untill now.

And they agreed also, that it need not be shewn whether he were made a Iesuit, or Priest, &c. either beyond Sea, or within the Realm, because whersoever it was, it is within the Law if he were made by the pretended authority of the See of Rome.

But they agreed that it ought to be comprised in the Indictment that he was born within this Realm, or other Dominions of the Queen, but need not to shew where, but generally, Et quod I. S. natus infra hoc Regnum Angliae, &c. And the Indictment ought to comprise that he was a Iesuite, or Priest &c. by authority challenged or pretended from to the See of Rome, because that this is in the body of the Act, without such reference as in the other point, and according to this resolution the proceeding was against the said Southwell.

Easter Term, 37 Eliz. Pigots Case.

1. AFter the death of Valentine Pigot Esquire, a Commission was a∣warded in nature, of a Mandamus, and after the death of Tho∣mas Pigot Father of the said Valentine, a Commission was awar∣ded in nature of a Diem clausit extremum, and the said Commissions were awarded to one and the same Commissioners, who by one Inquest took but one Inquisition upon these severall Commissions in this form.

Inquisitio indentata capt•• apud, &c. virtute Commiss. in natura brevis de diem clausit extremum eisdem Commiss. direct. &c. ad inquirendum post mor∣tem Thomae Pigot, Ar. nuper defuncti patris predict. Valentin. per sacra∣mentum, &c. Qui d••cunt, &c. After which all the points of the C••mmission after the death of the s••id Valentine are enquired of; but for the Commissi∣ons after the death of the said Thomas Pigot, it is imperfect in some points, as who is his Heir, &c. is not found.

And by Popham and Anderson, this Inquisition is void as to Valentine as well as for Thomas, for their authorities which are the Commissions are by severall Warrants which cannot be simul & semel by one and the same Inquisition executed and satisfied, but ought to be divided and severall, as the Warrant is severall, and yet the same Inquest which found one Inqui∣sition by one Warrant, may also find another Inquisition by the other War∣rant, but divided and severall, and not as one, for as it is made it does not appear upon which of the Commissions the Inquisition as to Valentine is ta∣ken, for as it is made it may be as well upon the one as upon the other, for it is said to be by vertue of both the Commissions, which cannot be, and ther∣fore is not good in any part, and severall Warrants ought to be severally execused, and therfore although the Escheator as appeareth by 9 H. 7. 8. may take •••• Inquisition Virtue officii, and at the same day another Inquisition, Virtue brevis by one and the same Inquest, yet this cannot be drawn into

one Inquisition: And that which is found Virtue officii contrary to that which before the same day Virtute libris, as that it found more Land, is good for the King. And this their opinion was certified to the Court of Wards.

Sir Rowland Haywards Case.

2. THis Case was also sent to the same chief Iustices out of the Court of Wards: Sir Rowland Hayward being seised in his Demesne as of Fee, of the Mannors of D. and A. in the County of Salop, and of other Lands in the same County, part wherof were in Lease for years by severall Inden∣tures, rendring certain rent, part in the possessions of severall Copyholders, and part in Demesne in possession out of Lease, by Indenture dated 2. Sep∣tember, 34. Eliz. made mention that this was for, and in consideration of a certain sum of money to him paid by Richard Warren Esquire, and others, de∣mised, granted bargained and sold to the said Richard Warren and the others, the said Mannors, Lands, and Tenements, and the Reversion and Remain∣der of them, and of every part of them, and the Rents and Profits reserved upon any Demise therupon for 17. years, next ensuing the death of the said Sir Rowland, rendring a Rose at the Feast of S. John Baptist yearly, if it be demanded, which Deed was acknowledged to be enrolled, and afterwards by another Indenture covenanted and granted for him and his Heirs, here∣after to stand seised of the said Mannors, Lands, and Tenements, to the use of the said Sir Rowland, and of the Heirs Males of his body, and afterwards and before any Attornment to the said Richard Warren and his Co-lessees, or any of them, the said Sir Rowland died seised of the said Mannors, Lands, and Tenements, leaving a full third part of other Lands to descend to his Heir.

And it was moved on the Queens part, that for part, to wit, for that which was in possession it past to the said Richard Warren, and the other by way of Demise at Common Law, and therfore it doth not passe afterwards by way of Bargain and Sale as to the Remainder, and that therfore for the Services of the Mannors, and for the Rents reserved upon the Demise, these remain to the Heir who was in Ward to the Queen, and within age, and therfore to the Queen by reason of the Tenure which was in Capite by Knights-service.

But by Popham and Anderson it is at the Election of the said Richard Warren and his Co-lessees to take it by way of Demise, or by way of Bar∣gain and Sale, untill that by some act done, or other matter, it may appear that their intent is to take it another way, for the Vse in this case may well passe without the Inrolement of the Deed, because the Statute of 27 H. 8. of Inrolements, extends but to where a Free-hold is to passe, and the Vse so passing, this shall be executed by the Statute of 27 H. 8. of Vses, and therfore if the said Richard Warren and his Co-lessees after the death of the said Sir Rowland Hayward, would elect to take it by way of Bargain and Sale, they shall have all the Reversions, Remainders, Rents, and Services, as well as the Land in possession executed to them by the Statute of Vses: And of the same opinion were all the Iustices in Trinity Term following, upon their meeting at Serjeants-Inne for another great cause.

Trinity Term, 37 Eliz.

1. VPon an Assembly of all the Iustices and Barons of the Exchecquer at Serjeants-Inne in Fleetstreet, this Term it was resolved by them, and so agreed to be hereafter put in execution in all Circuits; That if a man taken for Felony be examined by a Justice of Peace, it appeareth that the Felon is not bailable by the Law, and yet the Justices commit him to Goal but as up∣on suspition of Felony, not making mention for any cause for which he is not bailable, wherby he is brought before another Justice of Peace, not knowing of any matter why he ought not to be bailed, wherupon they bail him, these Justices ought to be fined by the Statute of 1, & 2. Phil. & Mar. for they offend if they bail him, who by the Statute of Westm. 1. is not bailable, and therfore they at their peril ought so to inform themselves before the bail taken of the matter, that they may be well satisfied that such a one is bailable by Law,; and therfore observe well the Statute of Westm. 1. cap. 18. who is bailable, and who not by the Law. And it seems that no Justice of Peace could have bailed any one for Felony before the Statute of 1 Rich. 3. cap. 3. which is made void by 3 H. 7. cap. 3. for before this he ought to have been bai∣led by the Sheriff, or other Keeper of the Prison where he was in Ward, or by the Constable, and by no other Officer, unlesse Justices of the Kings Bench, Justices in Eyre, or Justices of Goal-delivery.

Herbin versus Chard, and others.

2. IN Trespasse by William Herbin Plaintiff, against Chard and others Defendants, for a Trespasse made at Pynon Farm in Netherbury and Loder, in the County of Dorset, the Case upon the Demurrer appeared to be this.

The Lord Mordant was seised of the Farm, in his Demesne as of Fee, and so seised, demised it to Philip Fernam, Elizabeth his wife, and Iohn Fer∣nam the eldest Son of the said Philip, for term of their lives, and of the Sur∣vivor of them, and the said Eliz. died, after which the said Philip his Father demised his part of the Farm by his Deed indented, dated 13. Mart. 32. Eliz. to Philip his Son, and Toby Fernam his Son, for eighty years, immediat∣ly after the death of the said Philip the Father, if the said Iohn Fernam shal so long live, with divers remainders over for years, depending upon the life of the said Iohn, after which the said Philip the Father died, and Iohn sur∣vived him, and demised the said Farm to the Plaintiff, upon whom the De∣fendants entred in right of the said Philip and Toby, and whether their en∣try were congeable, was the question: And it was moued by Goodridge of the Middle-Temple, that the entry of the Defendant was not lawfull, because the said John was now in by the Lessor, and not by his joynt Companion.

And further, he had no power to dispose therof beyond his own life; for suppose that he makes a Lease therof for years, and afterwards grant over his Estate to a stranger, and dies, the Lease for years is therby determined, albeit his joynt Companion be yet living, and that his Estate continues.

And yet he agreed, that if had made a Lease for years, to begin at a day to come, as at Michaelmas following, or the like, that this had been good, for it is an Interest in the Grantee to be granted over for the presumption, that it might be executed in his life; but in the other case there is not any possi∣bility, that he who hath not but for his life, can demise it to begin after the Estate made to him is determined.

But on the other part, it was moved that the Demise remains in force for the life of the said John, for at the first every one had an interest for the life of the other also, and therfore if one Ioynt-tenant for life make a Lease for years in possession, and dies, the Lease yet continues.

And Crook the younger alledged, that it was adjudged at last Hartf. Term, If a man possessed of a Term for years in right of his Wife, makes a Lease for years of the same Lands to begin after his death, & dies during the Term, without other alteration of it, and the Wife survives him, that now the Lease made by the Husband, is good, and that the like case as this, by the o∣pinion of Clench and Walmsley was decreed to be good in the Chancery.

Arton versus Hare

3. IN a second deliverance between Francis Arton Plaintiff, and Henry Hare Avowant, the case appeared to be this.

William Cocksey Esquire, was seised in his Demesne as of Fee, of the Man∣nor of Wolverton in the County of Worcester, and so seised in Octab. Mich. 7 Eliz. levied a Fine of the said Mannor to certain persons, to the use of the said William and Alice his Wife, and the Heirs of William, untill a mar∣riage had between Martin Croft, and Anne Wigstone, and after this marriage to the use of the said William and Alice his Wife, and the Heirs of the body of the said William, and for defualt of such Issue, to the use of the said Martin Crofts and Anne, and the Heirs Males of the body of the said Martin upon the body of the said Anne begotten, untill the said Martin should go about to alien, sell, grant, or give the said Mannor, or any parcell therof, or to suf∣fer any Recovery, or levy any Fine therof, or make any discontinuance, &c. And after the Estate of the said Martin and Anne, and of the Heirs Males of their bodies to the Premisses, by any such attempts determined and finished, then to the use of the said Anne for her life, and after, to the use of the Heirs Males of the body of the said Martin upon the body of the said Anne lawfully begotten, and for default of such Issue, to the use of the Heirs of the body of the said Martin, and for default of such Issue, to the use of Giles Croft bro∣ther of the said Martin, and the Heirs Males of his body, untill, &c. as before, and after to the use of the Heirs of the body of the said Giles, and for default of such Issue, to the use of Edmund Crofts, the third brother of the said Mar∣tin, and of the Heirs Males of his body, as is before limited to the said Giles, with remainders over, afterwards the marriage was had between the said Mar∣tin and Alice, after which the said Martin and Giles died without Issue, with∣out any thing done by the said Martin to determine his Estate, or by the said Giles to determine his Estate, if any had been.

And it was agreed by all the Court, that as this case is, no remainder can enure over to the said Giles, without an attempt precedent by the said Mar∣tin to determine his Estate, because the Estate of Giles is not limited to be∣gin but upon such an attempt precedent.

And in the same manner Edmund shall have nothing untill the Estate of Giles determine by some attempt made by him, if the said Giles had an Estate, because the Estate of Edmund depends upon the attempt made by Giles precedent to it, which not being done, the Estate of Edmund never hap∣ned to be; and therfore he who cometh in under a Discontinuance made by the said William Cocksey, after the death of Martin and Giles without Issue, notwithstanding the Remitter of the said Alice in the case, is to have the Land against those who come in by the said Edmund, and upon this point only Iudgment was given accordingly in the Kings Bench.

Grenningham versus the Executors of Heydon.

4. IN Debt upon an Obligation of 200. marks by Richard Grenningham Plaintiff, against the Executors of one Ralph Heydon Defendants, the case appeared to be this upon Demurrer.

The said Heydon was bound to the Plaintiff in 200. marks, the Condition wherof recites, that wheras the said Heydon had received of the said Grenning∣ham 76 l. 6 s 8 d. before the date of the said Obligation of 200. marks in pay∣ment and satisfaction of certain Obligations and Bills of debt, remaining in the hands of the said Heydon, and specified in the Condition what they were in certain, and the which said Bills & Obligations the said Heydon is to deliver, or cause to be delivered to the said Grenningham, his heirs or assigns, before the Feast of S. Michael, next ensuing the date of the said Obligation, or otherwise the said Heydon, his Executors, Administrators, or Assigns, or some of them before the same Feast, shall make, or cause to be made and delivered to the said Plaintiff, his Heirs and Assigns, such good and sufficient Acquittances for the payment of the said summs of money formerly mentioned, as the said Plaintiff, his Heirs, Executors, or Assigns, shall devise, or cause to be devised by the Counsel of the said Plaintiff, his Heirs or Assigns, before the Feast, without fraud or deceit, that then the said Obligation shall be void, &c.

And before the Feast the said Plaintiff did not devise any acquittance; Whether now the Obligation be saved by the Disjunctive, without deliver∣ing the Obligations, and Bills before named, before the Feast of S. Michael: Rot. 36, & 37.

Eton and Monney versus Laughter.

5. IN Debt upon an Obligation of 400 l. by Thomas Eton, and Roger Monney Plaintiff, against Thomas Laughter Defendant, who was bound together with one Richard Rainford to the said Plaintiffs, the Conditi∣on of which Odligation was,

That if the said Richard Rainford after marriage had between him and Jane Gilman Widow, together with the said Jane, alienate in Fee, or Fee-tail, all that great Messuage of the said Jane in London, in the Tenure of William Fitz Williams Esquire, if then the said Richard Rainford in his life time pur∣chase to the said Iane, her Heirs and Assigns, Lands and Tenements, of good Right and Title, and of as good value as the money raised upon the aliena∣nation of the said Messuage amounts unto, or leave to the said Iane after his decease, as Executrix, or by Legacy, or other good assurance, so much money as he shall receive or have upon the said Sale, that then the Obligation shall be void, after which the said Richard Rainford married with the said Jane, and the said Richard and Jane sold the said Messuage in Fee by Fine, for 320 l. re∣ceived by the said Richard Rainford, after which the said Iane died, no Lands being purchased to the said Iane by the said Richard, and the said Richard yet living.

Michaelmas Term, 37, & 38. Eliz. Sawyer versus Hardy.

1. IN an Ejectione firmae, by Christopher Sawyer Plaintiff, against Ed∣mund Hardy Defendant, for a Messuage in S. Martins, upon a De∣murrer, the case was this.

A Lease was made of the said Messuage to one Margaret Sawyer for 40. years, upon Condition, that if the said Margaret should so long continue a Widow, she should dwell and stay in the same Messuage, the said Margaret continued a Widow, and dwelt in the same house all her life, and died during the said Term of 40. years, making the Plaintiff her Executor, and by award the Plaintiff had Judgment to recover: For by Popham, Gawdy, and Clench, this now was no Condition nor Limitation, for it hath no certain conclusi∣on upon the (that if) to wit, that then the Term shall continue, or that she shall pay so much, or otherwise what the conclusion shall be, none can ima∣gine: As if such a Lease be made upon condition, that if the Lessee does such a thing without other conclusion, it is a good Lease for 40. years, for none can imagine what the conclusion shall be in such a case, or that then the Lease shal be void, or that he shall re-enter, or that the Lessee shall forfeit so much, or what shall happen upon it, for which incertainty it shall be taken as a void Clause.

But by Popham, if it had been Sub conditione si tamdiu vixerit, it had been good to determine the Lease, but it is otherwise of the word (quod si) for the incertainty as before.

And they all agreed, that if the Lease had been for 40. years Si tamdiu sols viveret & inhabitaret in eodem Messuagio, that the Lease had been deter∣mined by her marriage, or death. In the same manner, as if it had been Si tam diu vixerit. And so in truth had been the case if it had been well plea∣ded, but by pleading the advantage therof was lost, and the truth not dis∣closed.

But by Popham, If a Lease be made for 40. years, if he shall dwell in the same for his life, there it is good for 40. years, upon performance of the Con∣dition, the diversity appeareth, to wit, where it is, if he shall dwell there du∣ring the Term, and where it is, if he shall inhabit there during his life.

Goodale versus Wyat.

2. IN an Ejectione firmae by Cuthbert Goodale Plaintif, against John Wy∣at Defendant, for a Meadow in Aylesbury, in the County of Buck. cal∣led Diggelmore, upon a speciall Verdict the case was this.

Sir Iohn Packington Knight, enfeoffed therof one Ralph Woodliff, to have and to hold to him and his Heirs, upon condition, that if the said Sir Iohn within a year after the death of the said Ralph, pay to the Heirs, Executors, or Administrators of the said Ralph, the summ of a 100. marks of lawfull mo∣ney, that then the said Feoffment and Seisin made therupon shall be void; Ralph Woodliff made a Feoment over to others therof, and died intestate, and Administration was committed to Anne his Wife, and Drew Woodliff his Son and Heir, who gave a Warrant of Attorney to Thomas Goodale then seised of the said Meadow by mean conveyances, for the receit of the said 100. marks, with Covenant that none of them shall do any act, or thing that shall be pre••u∣diciall or hurtfull to the said Thomas Goodale, for the receiving and enjoying of the said summ, after which it was certified to the said Sir Iohn Packington by

the said Goodale that this Warrant was made to him: After which it was a∣greed between the said Sir Ioh Packington & Drew Woodale, that the said Tho. Drew shall have but 32 l. of the said 100. marks, wherupon the said Sir Iohn Packington within a year after the death of the said Ralph Woodliff paid to the said Drew Woodliff the 100. marks, and presently the said Drew delivered to the said Sir John all the 100. marks but 32 l. And the Verdict stands upon this point, whether the 100. marks were well paid, or not.

And by Popham and Gawdy this was meerly a fraud which shall never prejudice a third person, for if it be agreed between the Disseisee and I. S. that a stranger shall disseise the Tenant of the Land, and enfeoff the said I. S. to the intent that the Disseisee shall recover against him, this Recovery shall bind the said I. S. but not him who was disseised, and yet he who recovered had a good Title, and paramount the other, but he shall not come to that to which he had good cause of Action and Title by fraudulent means, to the pre∣judice of a third person, not party to this fraud.

And it was said further, that to pay money, and take it away again present∣ly before that it is pursed up by re-delivery, is not properly a payment, but rather a colour of payment.

And by Fennor and Popham, the force of a Deed of Feoffment once effectu∣all, cannot become void or of no effect, nor the Livery therupon by such manner of words. And it is not like a Bargain of Goods, or an Obligati∣on, or a Lease for years, which by such words may be dissolved and made to be of no force or effect, because that as by the sealing a bare Contract, it may be made perfect and effectuall without other circumstances, so may it be defea∣ted by such bare means without other circumstance: But so it is not in case of an Inheritance or Free-hold, which cannot be effectual by the bare delivery of a Deed, unlesse that Livery be made therupon.

And all agreed, that as this case is, notwithstanding the Feoffment made o∣ver by the Father, the money might have been paid to the Heir to perform the Condition, if they had been duly paid, and without Covin, and that the words had been apt to have defeated the Estate.

But by Popham and Clench, If a Feoffment be made to one upon conditi∣on of payment of money to the Feoffee, his Heirs or Assignes and the Feof∣fee makes a Feoffment over, and dies, the money ought to be paid to the Feoffee who is the Assignee, and not to the Heir, for there (Heir) is not named but in respect of the Inheritance which might be in him, but here he is named as a meer stranger to it.

Bartons Case.

3. IN a Writ of Error sued in the Kings Bench by Randall Barton, upon a Fine levied at Lancaster, 7 Eliz. of Land in Smithall, and else where in the County of Lancaster, by Robert Barton Esquire, to Leven and Browndo, where this Writ was brought by the said Randall as Heir in tail to the said Robert, to wit, Son of Ralph, Brother of the said Robert. The Defendant plead a Recovery in Bar therof had after the Fine, in which the said Robert was vouched, who vouched over the common Vouchee: And by all the Court this common Recovery with such double Voucher (which is the common as∣surance of Lands) is a Bar by reason of the Voucher, to every manner of right which the Vouchee, or his Heir by means of him is to have to this land, which is paramount the Recovery. And so it is of every manner of way wherby they are otherwise to come to the Land before the Recovery. And if the recovery be erroneous, it remains a good Bar untill it be avoided by error. But if the Recovery be void, or the Voucher not warranted to

be, pursuing the appearance of the Tenant, but precedent to it, as was pre∣tended, and so no Tenant to warrant the Voucher when the Voucher was made, the Recovery shall be no bar in such a case; and the case here was in∣formed to be this, for the Writ of Entry bears date 1. Mart. 7 Eliz. return∣able Die Lunae in 4. septimana quadragessimae propter futur. and the Voucher was made in 4. septimana quadragessimae, 7 Eliz. the said first day of March, being the first week of this Lent, 7 Eliz. And upon this it was inferred that the Tenant was not to appear untill Munday in the fourth week of Lent, 8 Eliz. which is a long time after that the Voucher appeared and vouched over.

But by the whole Court the Original Writ shall be taken as it is writ∣ten, to be returnable on Munday, in the fourth week of the same Lent, 7 E∣liz. for it shall be taken as it is written shortly, most beneficially that it can be to make the Recovery good. And if it had been written Prox••me, it should refer to the week before, and so good. And if the word (Futur.) had been written at large (Futura) it also shall refer to Septimana, and therfore be∣ing written briefly it shall refer as it may best do to make the Recovery good. But if it had been in Quarta septimana proximae quadragessimae at large, then the word Proxime shall refer to Quadragessimae because of the case: But if it had been Proxima it shall refer to Septimana, because also of the case; But here as the case is, it shall be a good reference to make the words Tunc prox∣ima futur. to shew what fourth week of Lent, to wit, that next ensuing the first day of March. As if a man be bound by Obligation, bearing date the first day of March, to pay the 10. day of March then next ensuing, this shall be ta∣ken the 10. day of this March, because this is next ensuing the first day.

Paramor versus Verrald.

4. IN Trespasse of Assault and false Imprisonment, by Robert Paramor a∣gainst John Verrold, and others, supposed to be done at such a Parish and Ward in London, the 20. day of May, 35 Eliz The Defendants justifie by reason of an Erecution upon a Recovery in the Court of Sandwich, within the Cinque-Ports, Debt, and traverse Absque hoc, in that they were guilty in London, &c. The Plaintiff reply and maintain the Assault and Imprison∣ment, as it is said, and traverses Absque hoc quod habetur aliquod tale Re∣cordum loque••ae prout, the Defendants have alledged, Et hoc paratus est veri∣ficare per Recordum illud, and upon this the Defendants demurred in Iudg∣ment: And per Curiam the Defendants plea Prima f••cie was good, because it was a speciall manner of Iustification, which cannot be pleaded and alled∣ged to be in any other place then where it was done, in the same manner as if they had justified by force of a Capias directed to the Sheriff of another County, then where the occasion brought, or by Warrant of a Iustice of Peace of another County, for matter of the Peace, and the like, which are not like to the case of Partridge, who was be••ten in the County of Glocester by Sir Henry Pole, for which he brought his Action in London: And Sir Hen. Pole would have justified by Assault of the Plaintiff in the County of Glo∣cester, with a tr••verse that he was not guilty in London: But it was then ruled in this Court, that he could not do it to oust the Plaintiff to sue in London, but in such a case he might have alledged that the Assault was done in London, because it was also a thing transitory, of which they shall take no∣tice there, and so help himself if the matter had been true.

But in the case at the Bar, if the speciall matter alledged in the forraign County be false, as here, the Plaintiff may maintain his Action and traverse the special matter alledged by the Defendant: And so a traverse in such a case may be upon a Traverse when falsity is used, to oust the Plaintiff of that benefit which the Law gives him.

Hillary Term, 38 Eliz. Wood versus Matthews.

1. IN a writ of Error brought by Owen Wood, against Griffeth Matthews, upon a judgment given in the common Pleas, the case was briefly thus. The Issue in the Common Pleas was, whether one were taken by a Cap. ad satisfaciendum, or not, and upon the triall therof at the Nisi prius, the Jury found for the Plaintiff in this Action, to wit, that the party was not taken by the said Capias, and upon the back of the Pannell entred dicunt per Quer. but on the back of the Postea the Clark of the Assises certified the Pan∣nell thus, to wit, That the Jury say, that no Capias was awarded, which was otherwise then was put in Issue, or found by the Jury; and the Roll of the Record was according to the Postea, and upon this Judgment given for the said Matthew then Plaintiff, upon which (amongst other Errors) this va∣riance between the Issue and Verdict was assigned for Error, and after deli∣beration had upon this point, and this matter alledged by the Defendant in the Writ of Error, and certified out of the Common Pleas, the Court awar∣ded as to this point that the Record sent up out of the Common Pleas by the Writ of Error, shall be amended, according to that which was endorsed on the back of the Pannell, for the endorsement upon the Pannell is the War∣rant for the certifying of the Postea, a••d so this Warrant over to him that makes the Entry in the Roll: And therfore wheras it was alledged that the Postea was amended in the Common Pleas aft••r the Record removed, it was holden to be well done there; for although the Record were removed by the Writ of Error, yet the Nisi prius, the Postea, and the like remain still there, as it is of the Warrant of Attorney, and the like: And if the Po∣stea had not been amended there, but sent up with that which was endorsed upon the Pannel, all shal be amended here according to that which was indor∣sed upon the Pannel, and according to this there was a Presid••nt shewn Tr. 35. H. 8. between Whitfeild and Wright, where the Issue was, whether a quantity of Grain were delivered between two Feasts, and endorsed upon the Pannel (Dicunt pro quaer.) and yet the Postea certified (and the Rolls also made) that the delivery was made ad festa, and upon this matter alled∣ged in Banco Regis, and the Error in this point assigned and certified out of the Common Pleas, the Record removed by the Writ of Error was by a∣ward of the Court amended, and the word (Ad) razed out, and the word (Inter) written in lieu of it, according as it appeareth it ought to have been by the Note upon the back of the Pannel. And the like amendment was made lately in the Checquer Chamber, upon Error brought there upon a Iudgment given in Banco Regis, where the Iudorsment upon the back of the Writ was (pro Quer.) and the Postea and Roll was, that the Plain∣tiff was guilty, and there amended the last Term.

Slanings Case.

2. NIcholas Slaning of Bickley was seised in his Demesn as of Fee, of the Mannor of Bickley, and of a Mill in Walkhampton, in the Coun∣ty of Devon, called a blowing Mill, and of another Mill there called a knock∣ing Mill, and of an acre of Land there also, and of divers other Mannors and Lands in the said County of Devon, the said Mills and acres of Land in Walkhampton, then being in the possession of one Peterfeild, and Atwill, of

an Estate for divers years then to come, and being so seised, he with Margaret his Wife levied a Fine of the said Mannor of Bickley, and of other Lands, omitting the said Lands in Walkhampton, to certain C••∣nuzees, who rendred the same back again to the said Margaret Slaning for her life, with the remainder over to the said Nicholas, and his Heirs: After which the said Nicholas by Indenture daied 30. Octob. 21 Eliz. gave and en∣feoffed all the said Mannors and Premisses to John Fits and others, and the Heirs of the said Fits, to the Vses, Provisoes▪ and Limitations mentioned in the said Indenture, which was to the use of himself, and the Heirs Males of his body, by any other Wife, the remainder to Nicholas Slaning of New∣ton Ferries, and the Heirs Males of his body, with divers remainders over, with this Proviso, to wit, Provided, and it is the intent of these presents, and of the parties therunto, that the said John Slaning, and the Heirs Males of his body, or the said Nicholas Slaning of Newton-ferries, and the Heirs Males of his body, in whomsoever of them the Inheritance in tail of all the Premisses shall happen to be by force of these presents, shall pay to Ag∣nes the Daughter of the said Nicholas Slaning of Bickly, 200 l. or so much therof as shall be unpaid at the time of the death of her said Father, according to the intent of his last Will, with a Letter of Attorney to it, by which he ordains John Hart and Robert Fort, joyntly and severally his Attorney to en∣ter into the said Mannor of Bickley, Walkhampton, &c. and all other the Lands, Tenements, and Hereditaments, in the said Indenture mentioned, and possession for him to take, and after such possossion taken for him and in his name, to deliver full possession and seisin of the Premisses to the said John Fits, &c. according to the form and effect of the said Indenture, wher∣upon possession and seisin was given of all but that which was in possession of the said Peterfield and Atwill: And the said Pererfield and Atwill, nor either of them never attorned to the said Grant: After which Nicholas Slaning of Bickly made his last Will, by which devised to the said Agnes his Daughter 200 l. to be paid in form following, and not otherwise, to wit, 100 l. therof, in th••se words, On that day twelvemonth next after the day of his death, and the other 100 l. that day twelvemonth next after, &c. and made the said John Slaning his Executor, and afterwards, to wit, the 8. day of April, 25 Eliz, died without Issue Male of his body, the said Agnes took to Husband one Edmund Marley, and upon the 8. day of April, 26 Eliz. the said John Slaning paid the first 100 l. to Agnes then being living, and upon the 8. and 9. daies of April, 27 Eliz. Nicholas Slaning of Plumpton, Son and Heir of the said John Slaning, who died (in the mean time) an hour before the Sun set, and untill the S••n was set, came to the House where the said Edmund and his Wife inhabited in London, and tendred the last 100 l. and that nei∣ther the said Edmund nor Agnes his Wife were there to receive it, but that the said Edmund voluntarily absented himself, because he would not receiv•• the 100 l. and that therupon the Wife of the said Edmund died, having Issu•• two Daughters, the Lands being holden by Knights-service in Capite, and the said Daughters being yet within age, and all this being found by Office, by the opinions and resolutions of Popham and Anderson, and the rest of th•• Councel of the Court of Wards, the said Heirs now in Ward shall have no∣thing but that which doth not passe by the conveyance to John Fits and his joynt Feoffees, which was only that which was in the possessions of Peter∣field and Atwill, and that the Livery was good of the rest, albeit the Attorny did nothing of that which was in Lease, notwithstanding the words of the Warrant, that they should enter into all, and then shall make the Livery.

And they agreed, that the Condition doth not ••ind neither the said John Slaning nor Nicholas his Son, because they had not all the Land according to

the purport of the Condition, which was, that he who had all therof should pay the 200 l. wheras here that which was in the possession of Peterfeild and At∣will did not passe to them for want of Attornment, for a Condition ought to be taken strictly.

And further the payment was referred by the Indenture to be according to the Will, or by the Will, and the 200 l. was devised as a Legacy, which ought to be paid but upon demand, and not at the peril of the Executor, and therfore the nature of the payment of it is altered by the intent of the Will, and being not demanded, there is no default in the said Nicholas Slaning of Plumpton, to prejudice him of his Land, if it had been a Condition, for then it shall be but a Condition to be paid according to the nature of a Legacy up∣on demand, and not at the peril of the party. And whether the word twelve-month shall be taken for a year, or twelve months, according to 28. daies to the month, as it shall be of eight or twelve months, or the like. And they agreed that in this case it shall be taken for the whole year, according to the com∣mon and usuall speech amongst men in such a case, and according to this opi∣nion Wray (who is dead.)

Anderson and Gawdy made their Certificate to the late Chancellor Sir Christopher Hatton, in the same case then being in the Chancery, and a De∣cree was made accordingly.

And many were of opinion, that by his absence, by such fraud he shall not take advantage of the Condition, being a thing done on purpose, if it had been to be performed at his peril.

Kellies Case.

WIlliam Kelly and Thomasine his Wife, were seised of certain Lands in S. Eth, in the County of Cornwall, called Karkian, to them and to the Heirs of their two bodies between them lawfully begotten, by the Gift of one William Dowmand Father of the said Thomasine, 11 H. 8. a long time after which Gift, to wit 25 H. 8. A Fine Sur conusance de droit come ceo que il ad per, was levied by Peter Dowmand, Son and Heir of the said William Dowmand to William Kelley of the Mannor of Dowmand, and of a 100. acres of Land, 300 acres of Meadow, 300. acres of Pasture, and a 1000. acres of Furzse and Heath in Dowmand, S. Eth. Trevile, and divers other Towns named in the Fine, who rendred the same back again to the said Pe∣ter in tail, with diverse Remainders over, and this Fine was with procla∣mations according to the Statute, after which the possession of Karkian con∣tinued with Kelly and his Heirs, according to the first Intail; and the Man∣nor of Dowmand, and the Remainder of the Lands in these Towns, which were to the said Peter Dowmand to him and his Heirs according to the ren∣der, untill nine years past, that by Nisi prius in the Country upon the opini∣on of Manwood late chief Baron, the Land called Karkian, was recovered a∣gainst the Heir of the said William Kelly, by virtue of the said Fine and Ren∣der, because all the Land which the said Peter Dowmand, and the said Wil∣liam Kelly also had in all these Towns named in the Fine, were not sufficient to supply the Contents of acres comprised in the said Fine: And what the Law was in this case, was referred to the chief Iustices, the Master of the Rolls, Egerton, and the now chief Baron ••ut of the Chancery, who all agreed upon all this matter appearing, that nothing shall be said to be rendred but that which indeed was given by the Fine, and Karkian does not passe to the said William Kelly by the Fine, for as to it the Fine is but as a release of Pe∣ter to him, and therfore shall not be said to be rendred to the said Peter by the Fine, where no matter appeareth, wherby it may appear that it was the in∣tent of the parties that this shall be rendred. And therfore Popham said, that by so many Fines which have been levied in such a manner, and to such who have Land in the same Towns where the Conusance hath been (consider∣ing

that alwaies more Land is comprised in Fines by number of acres, then men have, or is intended to passe) by them at some time, or in some age, it would have come in question if the Law had been taken as Manwood took it, but in all such cases the Possession hath alwaies gone otherwise, which shews how the Law hath been alwaies taken in such cases.

And therfore if a man be to passe his Mannor of D. to another by Fine Ex∣ecutory, and he levy the Fine to him by the name of the Mannor of D. and of so many acres of Land in D. and S. being the Towns in which the Man∣nor lies, after which the Conuzor purchaseth other Lands in these Towns, the Fine before the Statute of Vses shall not be executed of these Lands pur∣chased after the Conusance, and the Fine shall work to these which he had power and intent to passe, and no further.

And it seemed to them, that an Vse may be averred without Deed upon a Fine sur Render. And all agreed that if there had been a Deed to have de∣clared the purport of the Fine, that the Fine shall not be taken to extend fur∣ther then is comprised in the Deed. And what is the cause therof, the Deed or the intent of the parties? and none can say but that it is the intent of the parties, and not the Deed, and the intent may as well appear without the Deed, as with it, albeit it be not so conclusive by Parole as by Deed.

And therfore suppose I have 100. acres of Land in a Close in D. and I. S. hath another 100. acres in the same Close and Town, and I. S. hath a 100. acres of Land in the same Town out of this Close, and my intent is to levy a Fine to I. S. of the whole Close by the name of 200. acres of Land, with a Render as before, and I levy it accordingly, shall the Render enure to the Land, which I. S. had in the same Town? It is cleer that it shall not, al∣though it be without Deed: why then shall the Fine here be taken to work rather to the Land called Karkian, then to any other Lands which any other had in the same Towns, when it appeareth plainly, that it never was the in∣tent of the parties; that the Fine should extend to these Lands called Karkian, and it was decreed in Chancery accordingly.

Hall versus Arrowsmith.

4. IN the case between Hall and Arrowsmith, it was agreed by the whole Court in the Kings Bench, That if a Copyholder for life hath licence to make a Lease for three years, if he shall live so long, and he makes a Lease for three years without such a Limitation, that yet this is no forfeiture of his Estate, because the operation of Law makes such a Limitation to the E∣state which he made, to wit, that it shall not continue but for his life, and then such an express Limitation in the case where the Law it self makes it is but a meer trifle; and yet if a Lessee for life makes a Lease for years, and he in the Reversion confirm it, it remains good after the death of the Tenant for life, but this then shall be as if it had been made by him in the Reversion himself, and shall be his Lease: But if the Lease there had been made deter∣min••ble upon the life of Tenant for life, the confirmation therof by him in the Reversion will not help him after the death of him who was Tenant for life, Causa patet.

But in the principall case, if the Copyholder had had an Estate in Fee by Copy, it had been a forfeiture of his Estate to make an absolute Lease, be∣cause in that case he does more then he was licensed to do.

And they agreed that such a licence cannot be made to be void by a Condi∣tion subsequent to the execution therof, to undo that which was once well ex∣ecuted. But there may be a Condition precedent united to it, because in such a case it is no licence untill the Condition performed; but the licence before mentioned is not a condition all Licence, but a Licence with a Limitation, and therfore hath not been of force, if the Limitation which the Law makes in this case had not been, and the Limitation in Law shall be preferred be∣fore the Limitation in Deed, where they work to one and the same effect, and not different.

Arthur Johnsons Case.

5. ARthur Johnson was possessed of a Term for years, and so possessed, assigned this over to Robert Waterhouse, and John Waterhouse, be∣ing Brothers to the Wife of the said Johnson, to the use of the said Wife; the said Johnson dies, and makes his Wife his Executrix, after which the said Wife takes Robert Witham to Husband, who takes the Profits of the Land during the life of his said Wife, the Wife dies Intestate, her said Brothers being next of kin to the said Wife, took administration as well of the Goods of the said Wife, as of her first Husband. And whether the said Waterhouses, or the said Witham shall have this Lease, or the use therof, was the question in the Chancery, and therupon put to the two chief Iustices, upon which they and the chief Baron, and all the other Iustices of Serjeants-Inne in Fleetstreet, and Beamont also were cleer in opinion, that the said Administrators had now as well the Interest as the Vse also of the said Term, as well in Conscience as in Law, and that they had the use as Ad∣ministrators to the said Wife, and that the said Witham shall not have it, because it is as a thing in Action, which the Administrators of the Wife al∣waies shall have and not the Husband. As if an Obligation had been made to the use of the Wife: And this opinion was certified accordingly to the Lord Keeper of the great Seal of England, and it was so decreed.

Taunton versus Barrey.

6. IN an Ejectione firmae brought by Giles Taunton Plaintiff, in the King Bench, against Giles Barrey Defendant, the Case was thus.

Iohn Coles Esquire, made a Lease of the Lands in question to the Father of the said Barrey, for divers years, depending upon the life of the Lessee, and of the said Defendant, and of the Survivor of them, upon condition that the said Father should not alien without the consent of the said Coles & his heirs, after which the said Father devised the Term to the said Defendant and died, ma∣king his Executor, who assented; And the question upon this point found up∣on a speciall Verdict, was, whether upon the matter the Condition were bro∣ken; and by the opinion of the whole Court adjudged that it was, for in such a case he ought to have left it to his Executor, without making any Devise of it, for the Devise is an Alienation against him, and therfore it was agreed that the Plaintiff shall recover Term, 37 Eliz. Rot. between Roper and Roper.

Michaelmas Term, 38, & 39. Eliz. Everets Case.

1. THis Case was moved by the chief Iustice to the other chief Iusti∣ces at Serjeants-Inne in Fleetstreet, concerning one Everet, who before was attaint for stealing of a Horse, & reprieved after Iudg∣ment, and Indited again for stealing another Horse before this Attainder: And the Vicar of Pelton, in the County of Somerset was Indited as accessary before this Felony, for the procurement of it; And Everet being again In∣dited upon this last Inditement, did not plead that he was formerly Indited of another Felony, &c. but acknowledged the Inditement wherby the Acces∣sary was Arrained, tried, and found guilty, and had his Iudgment also as the principall, but the Execution of the Accessary was respited: And now mo∣ved whether upon this matter it shall be fit to execute the Accessary, the prin∣cipall being executed.

And it seemed convenient to all the Iustices and Barons that he shall be executed, and that the matter was cleer in this case, because the principall did not take advantage of his first Attainder by way of Plea, but acknowledg∣ed the Deed, in which case the Accessary may well be Arraigned: But if the principall had pleaded his former Attainder, whether now he shall be put to answer for the benefit of the Queen, having regard to this Accessary, who otherwise shall go quit, because there was not any principall, but he who was formerly attainted.

And it seemed to Popham and some others, that it shall be in the same man∣ner, as if the same person so formerly attainted should be tried now for Trea∣son, made before his Attainder, as appeareth by 1 H. 6. 5. because it is for the advantage of the King in his Escheat of the Land: and notwithstanding, that it is moved by Stamford in his Pleas of the Crown, it seemed to Popham that there was no diversity where the Treason was made before the Felony of which he is attainted, and where after and before the Attainder; And by the same reason that he shall be again tried for the benefit of the King in this case because of the Escheat, by the same reason in this case here, because of the forfeiture which accrueth to the Queen by the Attainder of the accessary, and for the Iustice which is to be done to a third person, who otherwise by this means shall escape unpunished.

But he agreed, that the party Attaint shall not be again Arraigned for any other Felony done before the Attainder, in case where no Accessary was tou∣ched before the Statute of 8 Eliz. cap. 4. he who is convict of Felony, and hath his Clergy after his purgation made, shall be Arraigned for another Felo∣ny done before the conviction, if it be such for which he cannot have his Clergy, and was not convicted or acquitted of the same Felony before the At∣tainder: But upon this Statute it appeareth, that he who shall have his Clergy in such manner, shall not be drawn in question for any other Felony done before his Attainder, for which he might have his Clergy.

And of this opinion (as Clark and others of the Iustices said) were all the Iustices in the time of Wray. And as to the Statute of 18 Eliz. cap 7. It is not to be understood but that he who hath his Clergy, and delivered according to this Statute, shall be yet arraigned for any other Felony done before his former Conviction or Attainder, if it be such for which he cannot have his Clergy; for the words are, That he shall be put now to answer, &c. in the same manner as if he had been delivered to the Ordinary, and had made his Purgation, any thing in this act to the contrary notwithstanding.

Pollard versus Luttrell.

2. IN an Ejectione firmae between Pollard and Luttrell for Lands in Hubu∣ry and Listock, upon the Title between the Lord Audeley and Richard Audeley, it was agreed by the chief Iustices, that if the Disseisor levy a Fine with Proclamations according to the Statute of 4 H. 7. and a stranger with∣in five years after the Proclamations enter in the right of the Disseisee, without the privity or consent of the Disseisee, that this shall not avoid the Bar of the Fine, unlesse that he assent to it within the five years, for the words of the Statute are, so that they pursue their Title, Claim, or Interest by way of Action, or lawfull Entry within five years, &c. and that which is done by another without their assent, is not a pursuing by them according to the intent of the Statute, for otherwise by such means against the will of the Disseisee, every stranger may avoid such a Fine, which was not the in∣tent of the Statute.

Mountague versus Jeoffreys and others.

3. IN Trespasse by Edward Mountague Plaintiff, against Richard Jeoffreys and others Defendants, for a Trespasse done in certain Lands called Graveland, in Hailsham in the County of Sussex, the Case upon a special Verdict was thus.

Sir John Jeoffreys late chief Baron, bing seised in his Demesn as of Fee (a∣mongst others) of the said Land called Graveland having Issue but one only Daughter, by his Will in writing devised all his Land of which he was seised in fee (except the said Graveland) to his said Daughter for 21. years, &c. and the said Land called Graveland (which was then in Lease for divers years, to one Nicholas Cobb, which years at the time of the death of the said Sir John Geof∣freys continued) he devised to the said Richard Jeoffreys his Brother, and his Heirs, and by the same Will he disposed divers Legacies of his Chattels, and the Remainder he gave to his said Daughter, and made her Executrix of his said Will; after which the first Wife of the said Sir John Jeoffreys being dead, he covenanted with Mr. George Goring to take the Daughter of the said George to Wife, and covenanted with the said George (amongst other Lands) to as∣sure the said Land called Graveland to the said George Goring and Ri∣chard Jeoffreys, and their Heirs, to the use of the said Sir John Jeoffreys, and Mary Goring Daughter of the said George, and the Heirs of the said Sir John Jeoffreys, by a certain day, before which day the marriage being had, the said Sir Io: Ieoffreys made a Deed and sealed it, and delivered it, containing a Fe∣offment of the said Land called Graveland (amongst others) to the said George Goring and Richard Ieoffreys, and their Heirs, to the Uses aforesaid, in perfor∣mance of the said Covenants, with a Warrant of Attorney to make Livery accordingly, and the Attorney made Livery in other parts of the Land, and not in Graveland, and this was in the name of all the Lands compri••••d in the Deed, and the said Nicholas Cobb never attorned to this Deed; After which Sir Iohn Ieoffreys interlined in the said Will, that the said Mary then his Wife should be joynt Executrix with his Daughter: And in the Legacy of the rest of his Goods, &c. he interlin'd the said Mary his Wife to be Joynt∣tenant with his said Daughter, without other publication therof; and after∣ward the sa••d Sir Iohn died, the said Daughter being his Heir, who took to Husband the said Edward Mountague.

4. IN Trespasse, the Plaintiff supposeth the Trespasse to be done in the breaking of his House and Close in such a Town, the Defendant justi∣fies in a House and Close in the same Town, and shews which, to put the Plaintiff to his new Assignment, to which the Plaintiff replied that the House and Close of which he complains is such a House, and gives it a speci∣all name, upon which the Defendant demurs, and adjudged that the Plain∣tiff take nothing by his Writ: for albeit a House may have a Curtilage which passeth by the name of a Messuage with the Appurtenances, yet this shall not be in this case, for by the Bar the Plaintiff is bound to make a spe∣ciall demonstration in what Messuage and what Close he supposeth the Tres∣passe to be done, as to say that the House hath a Curtilage, the which he broke, and it shall not be taken by intendment that the Messuages had such a Curtilage to it, if it be not specially named.

Fennors Case.

5. IN Trespasse brought by Fennor in the common Bench, against for breaking his Close in, &c. the Defendant pleads a Bar at large, to make the Plaintiff assign the place in certain, where he supposeth the Trespasse to be done, the Plaintiff therupon alledgeth that the place where he complaineth is such, &c. and sheweth in certain, another then that in which the Defendant justifies, the Defendant avers that the one and the other are all one, and known by the one name and the other, and therup∣on the Plaintiff demurs, and adjudged there for the Plaintiff, because that in such a case upon such a speciall assignment, it shall be taken meerly another then that in which the Defendant justifies, in as much as the Plaintiff in such a case cannot maintain it upon his evidence given, if the Defendant had pleaded not guilty to this new Assignment, that the Trespasse was done in the place in which the Defendant justifies, although it be known by the one and the other name, and that the Plaintiff hath good Title to it, because that by his speciall Assignment, saying, that it is another then that in which the Defendant justifies, he shall never after say, that it is the same in this Plea, for it is meer contrary to his speciall Assignment: And upon this a Writ of Error was brought in the Kings Bench, and the Iudgment was there affirmed this Term for the same reason, Quod nota.

Scot versus Sir Anthony Mainy.

6. IN Debt upon an Obligation of 200 l. brought by John Scot Gent. a∣gainst Sir Anthony Mainy Knight, the Condition wherof being to per∣form the Covenant comprised in an Indenture of Demise made by the said Sir Anthony to the said Plaintiff, of his Capitall Messuage in Holden with the Lands to it belonging, &c. amongst which Covenants one was, that wheras by the same Indenture he had demised it to him for 21. years, that the said Sir Anthony covenanted with the said John Scot, that the said Sir Anthony from time to time, during the life of the said Sir Anthony, upon the surrender of this Demise, or any other Demise hereafter to be made by the said Sir Anthony, of the said Messuages and Lands, and to be made by the said John Scot, his Executors or Administrators, and upon a new Lease to be made ready ingrossed to be sealed and offered by the said John Scot his Executors or Administrators, to the said Sir Anthony, for the like tearm and number of years in the aforesaid Indenture com∣prised for the same Rent, &c. to seal and deliver to the said John Scot, his Ex∣ecutors and Administrators. And the said Sir Anthony as to this Covenant pleaded, did not surrender, nor offer to surrender to him the said Demise, nor offer to him any new Demise of the Premisses, ready engrossed for to seal it for the like Term, &c. as it is in this Covenant.

And for the other Covenants he pleads performance of all; To which the Plaintiff replies, that the said Sir Anthony after the Obligation, and before the Action brought, had rendred the said Messuages and Lands by Fine to one Walter Savage and William Sheldon their Executors and Assigns for eighty years, from the Feast of Easter next before the Fine which was Pasch. 36 Eliz. wherby he said, that the said Sir Anthony had disabled himself to renew his Lease according to the Covenant, upon which it was demurred in the Com∣men Bench, and the Iudgment given for the Plaintiff, as appeareth, Trin. 37. Eliz. Rot. 2573. And upon this Iudgment, a Writ of Error was brought in the Kings Bench and agreed this Term. And it was moved that the Iudgment given was erroneous, in as much as the first act was to be done by John Scot before the new Lease was to be made, to wit, the surren∣der of the former Lease, and the drawing of the new one ought to have been done by the Plaintiff, which not being done on his part, the said Sir Antho∣ny is not bound to make the new Lease.

And also it was moved, that as the case is here, the said John Scot might surrender to the Defendant, notwithstanding the intervening of this Lease between the Lease of the Plaintiff, and the Inheritance of the Defendant, as if a man make a Lease for years in possession, and afterwards make another Lease to a stranger, to begin after the end of the former Lease, this shall not hinder but that the first Lease may be surrendred to him who was the Lessor, notwithstanding the said Term intervening.

To which it was answered by the Court, that the Plaintiff here need not to make any offer of the surrender of his Term to the said Sir Anthony, in as much as the said Sir Anthony hath disabled himself to take the Surrender, or to take the Lease according to the purport of the Condition, and by this disabling of himself the Obligation is forfeited, Come per 44 E. 3. 8. and by Littleton also, If a man make a Feoffment, upon condition to re-enfeoff him, this is not to be done untill request therof be made by the Feoffor, yet if in the mean time the Feoffee suffer a fained recovery of the Land, grant a Rent charge, acknowledgeth a Statute, taketh a Wife, or the like, the Feoffor may re-enter, without request made to re-enfeoff him, and the reason is, be∣cause that by any of these the Feoffee hath disabled himself to perform the Condition in the same plight, as he might have done at the time of the Feoff∣ment, in the same manner here, for by this render by the Fine, the Rever∣sion passe in right, so that the Termor in possession attorning to it, they shall have the Rent reserved upon the first Lease, and therfore the Plaintiff cannot now surrender to the said Sir Anthony, but to the Grantees of the Reversion, and therfore there shall be no prejudice to the Plaintiff, because the Defendant was the cause of disabling the Plaintiff to make the Surren∣der to him. And suppose it be but a Term to begin at a day to come, yet by this the Obligation is forfeited, because the Obligor hath therby disabled himself to perform the Condition in such a plight as he might have done it when the Obligation was made, wherby the Obligation is presently forfei∣ted, albeit the Plaintiff never surrender nor offer to do it: And therfore the Iudgment there was affirmed.

Mounson versus West.

7. IN an Assise brought in the County of Lincoln, before Gawdy and Owen, by Thomas Mounson Esquire, Demandant, against Robert West, Te∣nant for Lands in Sturton Juxta Stu. The Defendant West pleaded Nul Te∣nant del Frank-tenant named in the Writ, and if that be not found, then Nul tort, nul Disseisin: And the Assise found that the said Defendant was Tenant of the Tenements now in Plaint, and put in view to the Recogni∣tors

of the Assise, in manner and form as the Writ supposeth: And further that the said West therof disseised the said Mounson, namely of the Tene∣ments in the will of one Mounson: And did not find either the words of the Will, nor the Will it self what it was, &c. And the Iustices of Assise upon this Verdict upon advice with the other Iustices, gave Iudgment, that the Plaintiff shall recover, &c. upon which a Writ of Error was brought in the Kings Bench, where it was moved that the Iudgment was erroneous: First, because the Iury have not found that the Defendant was Tenant of the Free-hold, agreeing with the form of the Plea, for the Writ of Assise doth not suppose him to be Tenant of the Free-hold, and therfore the Ver∣dict in this point not fully found.

The second Error is, that the Seisin of the Plaintiff is not required of, ac∣cording to the charge given to them, as well as the Disseisen, for the charge was that they should enquire of the Seisen of the Plaintiff, &c. But to both these the Court answered that the Verdict is well enough, notwithstanding these exceptions, for every Assise brought supposeth that there is a Disseisor, and a Tenant named in it, then this Assise being brought against a sole per∣son, supposeth him to be a Disseisor and Tenant also; and therfore the Ver∣dict saying, that he was Tenant as the Writ supposeth, is now as strong in this case, as if they had found that he was Tenant of the Free-hold, for the Tenant of the Free-hold ought to be named in the Writ: But if the Assise had been brought against two, or more, such a Verdict had not been good, for it sufficeth if any of them be Tenant of the Freehold, and then the Writ doth not suppose one to be Tenant more then another, but supposeth one Te∣nant to be named in the Writ. And therfore in such a case the finding ought to be speciall, to wit, that such a one is Tenant of the Free-hold, or that there is a Tenant of the Free-hold named in the Writ. But where one only is named in the Writ to be Disseisor and Tenant, it is sufficient to find as here, for by this it is certainly found that he is Tenant of the Free-hold.

And for the other point, although it be a good direction for the Iudges to the Iury, wherby they may the better perceive that there ought to be a Sei∣sin in him, or otherwise there cannot be a Disseisen by the other, yet in Deed he cannot be a Disseised who was not then seised: But the Assise having found the Disseisen the Seisen in Law, is found included in the Disseisen. But for the point moved, that the Verdict was not perfect, in as much as they found the Disseisen with a Nisi, it seemed to Gawdy that the Iudgment upon this Verdict was erronious, as where a Verdict in another Action is imperfect, a Venire facias de novo shall be awarded to try the Issue again: And if Iudgment be given upon such a Verdict it is error; so here the Ver∣dict in this point being incertain, there ought to have been a Certificate of Assise to have this better opened: But the three other Iustices held (as the case is) that the Verdict in this point is certain enough, for that which cometh before the Nisi (as it is placed) is meerly nugator. as in the case of the Lord Stafford against Sir Rowland Heyward, the Iury found Non assumpsit, but if such Witnesses say true (as they believe they did) Assump∣sit, &c. it was but a meer nugation.

But it seemed to Popham, that if the Verdict had been, if the words of the Will do not passe the Land, then that he disseised, and if they passe, then that he did not disseise; there if the words of the Will be not found, the Verdict had been all imperfect, but here the Verdict is full and perfect before the Nisi, &c. and therfore the Iudgment was affirmed.

Holme versus Gee.

8. A Formedon in Descender was brought by Ralph Holme Demandant, against Henry Gee and Elizabeth his Wife Tenants, and the Case w••s thus.

Ralph Langley and others gave two Messuages and a Garden, with the Ap∣purtenances in Manchester, to Ralph Holme the great Grandfather of the De∣mandant, and to the Heirs of his body begotten, after which the same great Grand-father by Deed indented, dated 20. September, 14 H. 7. enfeoffed Iohn Gee of one of the said Messuages, and of the said Garden, rendring year∣ly to the said great Grand-father and his Heirs 13 s. 4 d. a year, at the Feasts of S. Michael, and the Annunciation, by equal portions, after which the said Iohn Gee died seised of the said Messuages and Garden, and it descended to Henry Gee his Son and Heir; after which the said great Grand-father by his Indenture, bearing date 6. Martii, 12 H. 8. enfeoffed the said Henry Gee of the other Messuages, rendring also to him and his Heirs yearly 13 s. 4 d. at the said Feast aforesaid by equal portions, after which Holme the great Grand-father died, Stephen Holme being his Son and next Heir, who was seised of the Rents aforesaid, and afterwards also died seised, Robert Holme being his Son and Heir, after which the said Henry Gee died seised of the said two Messua∣ges and Garden, and they descended to Eliz. his Daughter and Heir, who took to Husband one Richard Shalcroft, and had Issue the said Elizabeth wife of the said Henry Gee, Tenant in the Formedon, after which the said Richard Shalcroft and his wife died, after which and before the marriage had between the said Henry Gee and Elizabeth now Tenants in the Formedon, the said Eli∣zabeth enfeoffed one Richard Greensearch of the said Messuages and Garden, after which, to wit, at the Feast of the Annunciation of our Lady, 3 Eliz. the said Henry Gee husband to the said Elizabeth. paid 13 s. 4 d. for the said Rent reserved as is aforesaid, to the said Robert Holme, after which, to wit, on Mun∣day next, after the Assumption of our Lady at Lancaster, before the Justices there, a Fine was levied with Proclamations according to the Statute, between Thomas Aynsworth, and Thomas Holden then being seised of the Tenements aforesaid Complainants, and the said Henry Gee and Eliz. his wife, Deforce∣ants of the Tenements aforesaid, wherby the Conusance was made to the said Thomas, and Thomas who rendred them to the said Henry Gee and Eliz. his wife, and to the Heirs of their bodies, the Remainder to the right Heirs of the said Henry: the five years past after the Proclamations in the life of the said Robert Holme, after which the said Robert died, and Ralph his Son and Heir brought the Formedon upon the Gift first mentioned, and the Tenants plead the said Fine with Proclamations in Bar, and the Demandant replyed, shew∣ing the severall discontinuances made by the great Grand-father as aforesaid, and the acceptance of the said Rent by the said Robert, by the hands of the now Tenant Henry Gee as is before alledged, and that the said Henry was then seised of the said Tenements in Fee in right of the said Eliz. then his wife, and although that he alledge the said severall Feoffments to be made by Deeds indented, with the reservation as aforesaid, yet it is not mentioned in the Re∣plication that he shews forth the Deeds wherby the reservation was made; To which the Tenant by way of Rejoynder shew the Feoffment made by the said Eliz. Shalcroft to the said William Greenditch, wherby he was seised at the time of the payment of the said Rent at the said Feast of the Annunciati∣on of our Lady, and traverse Absque hoc, that the said Henry Gee was therof then seised in right of his wife, in manner and form, wherupon it was demur∣red in Law, and adjudged by the Justices of Assise at Lancaster, that the Plaintiff should be barred, wherupon the Tenants have now brought their Writ of Error.

And by Popham and Clench the Iudgment is to be affirmed; First, be∣cause that the acceptance of the said Rent had been by the hands of one who was to pay it, to wit, the Tenant himself, yet this shall not bar the right of Intail in the said Robert Holme (as a release of his right should do) but this acceptance shall only foreclose him of his Action, to demand the Land during his life, and therfore the right which the said Robert had, being barred by the Fine, the Son is without remedy, for the Son shall never have remedy up∣on the Fine levied in time of his Father, the five years after the Procla∣mations being passed: But in case where the right begin first to be a right in the Son, and not where there was right in the Father.

And further, it seemed to them, that the payment of him who had not any thing in the Land at the time of the payment, as here, shall make no conclu∣sion to him who accept it, because this payment is as none in Law.

And by them the Rejoynder of the Traverse, Absque hoc, that Henry Gee was seised at the time of the payment in Fee, in right of his said Wife, in manner and form, as in the Replication is ailedged, is good enough, for he traverseth that which the Demandant hath specially alledged to destroy the Bar, and contrary to that which is alledged, it shall not be intended that they had other particular Estate at the time of the payment, which may make the payment to be good.

And albeit the Traverse had been, Absque hoc, that the said Henry was seised in right of his said Wife, Modo & forma prout, the Deman∣dant hath alledged without saying in Fee, as it is pleaded here, yet the Iu∣ry shall be put to find it, if he were seised in Fee, In jure Uxoris, and not of a∣ny other particular Estate, as in 12 E. 4. 4. A Feoffment is pleaded by Deed, the other makes Title, and traverseth Absque hoc, that he enfeof∣fed Modo & forma, not shewing forth the Deed, yet he who pleads the Feof∣ment, by Littleton, shall give no other Feoffment in evidence, then that which is pleaded by the Deed. And by 18 E. 4. 3. In Trespasse the De∣fendant justifies the entry and sowing of Corn, because that M. was seised in Fee, and sowed the Land, and the Defendant as his Servant entred and cut it, the Plaintiff saith, that it was his Free-hold at the time of the sowing, Absque hoc, that it was the Free-hold of the said M. and per Cu∣riam, it is not good, for such matter was not alledged by the Defendant, but he ought to traverse the Seisin in Fee, which was alledged, and good, and so it is good here.

But it seems to Clench, that the Replication is not good, because he doth not say, by the Writing upon which the Reservation was made, which concludes Robert by his acceptance, Hic in Curia prolat. as by Hill. 15. E. 4. 15. If a man will bar a woman of her Action for her Land after the death of her Husband, by Feoffment made by the Baron and Feme, during the Coverture by Deed, rendring Rent, by reason of acceptance of the said Rent after the death of the husband, he ought to shew the Deed, and say, Hic in Cu∣ria prolat. or otherwise the Plea is not good, because that in such a case albe∣it it were a Gift in Tail, the wife shall not be concluded by her acceptance, unlesse that the Gift were by Deed.

Popham, True it is, in case the party will demur upon it: but suppose in this case, the Tenants had expresly acknowledged the said Feoffments, and then concluded afterwards as they have done here, shall they afterwards take advantage of not shewing the Deed? I think that not, no more here where they admit it, and plead the other matter to avoid the conclusion; for if a double Plea be plea••ed, if the other party demur upon it, he shall take the advantage of the doublenesse: But if he passe it over, and they proceed in pleading upon another point, the doublenesse is gone.

And Fennor said, that the right which is intended to be saved within the first branch of the Statute of 4 H. 7. is, that upon which the party may pursue his Action, or enter for his remedy, the which the said Robert could not do in, when the Fine was levied, because he had accepted the Rent, but the first right which was in such a case, was that in the Demandant.

Stroud versus Willis.

9. IN Debt upon an Obligation of 40 l. by William Stroud Plaintiff, a∣gainst John Willis Defendant, the Condition wherof was, If the said Willis his Heirs, Executors, or Assigns, should pay or cause to be paid yearly to the said William Stroud, the Rent, or summ of 37 l. 10 s. of lawfull money, at the Feasts of S. Michael, and the Annuntiation, by equall portions, accord∣ing to the Tenor, true intent, and meaning of certain Articles of agreement indented, made between the said parties of the same date, that the Obliga∣tion was, that then the Obligation shall be void, and the Defendant shews the Articles which were thus, to wit, that the said William Stroud had de∣mised to the Defendants all such Tenements in Yeatminster, of, or in which the said William then had an Estate for life by Copy. Anglice Copie des, except according to the custom of the Mannor of Yeatminster, from the Annunciation of our Lady then last past, for forty years, if the said William should so long live, rendring yearly to the said William 37 l. 10 s. of lawfull money, at the Feasts of S. Michael, and our Lady, by equal portions, under the East-gate of the Castle of Taunton, in the County of Somerset, &c. with divers things comprised in the said Articles. To which points the Defen∣dant pleaded, that at the time of the making of the said Articles the Plain∣tiff had not any Estate in the Tenements in Yeatminster aforesaid, for tearm of his life, by Copy, Anglice Copie des, except according to any custom of the said Mannor of Yeatminster, and that the Obligation was made for the payment of the same Rent reserved by the said Articles, and demands Iudg∣ment, &c. wherupon the Plaintiff demurred in the Common Bench, and there Iudgment was given that the Plaintiff should recover his Debt and Damages, as appeareth there, Mich. 36, & 37. Eliz. Rot. 312. upon which a Writ of Error was brought in the Kings Bench, and there moved that the Iudgment was erroneous, in as much as upon the matter he ought to have been barred of his Action? for if an Action of Debt had been brought upon the Demise, by the Articles, the Defendant might have pleaded as here, and the Plaintiff should be cleerly barred: As if a man be bound to make an E∣state, or to assure to another all the Lands which he hath by descent from his Father, or all the Lands which he hath by purchase from such a one, or the like.

And of this opinion Gawdy was, saying, in as much as the Obligation is, that he shall be paid according to the true intent of the Articles, the intent of them is not that the Rent shall be paid if any Land be not passed by them, for it should be paid, as by 22 H. 6. if a man be bound to pay a Rent which is reserved upon a Lease made to him, he ought to pay it at his peril: But if it be to pay it accordingly to the Lease, there he said, it is not payable but upon the Bond, and is to be paid as a Rent. And if the Land be evicted in the interim before the day of payment, the Obligor shall help himself by plea∣ding of it upon such an Obligation to discharge the Bond, so here: But it seemed to Popham, that the Iudgment was well given, and yet he agreed the Cases that were put; but he said there was a diversity where the Obli∣gation goes in the generality, and where it tends to a speciality: for as by 2 E. 4. If a man be bound to be Non-suit in all Actions which he hath against

such a one, or to assure to another all his Lands in Dale, he may say, that he hath not any Suit, or that he hath no Land in Dale: But if it be that he shall be Non-suit in a Formedon depending, or to enfeoff him of White acre, there it is no plea, because he refers to a special point. And by 18 E. 4. If a man be bound to another to pay him 10 l. for which a stranger is bound to the said Obligee, it is no plea for him to say, that the stranger is not bound to pay him 10 l. for when the Condition refers to such a speciall matter, this cannot be denied of him who is bound.

And therfore in this case the Defendant cannot say, that there were not a∣ny such Articles, contrary to that which is specially comprised in the Condi∣tion, as by 28 H. 6. A man was bound to perform the Covenants compri∣sed in a certain Indenture of Covenants, he shall not say, that there was not any such Indenture, because it resorts to a speciall.

So I think, if a man be bound to pay the Rent of 10 l. a year reserved up∣on an Indenture of Demise made of Lands in D. payable at such a Feast, he shall not say against it, that there was no such Demise made, nor no such Rent reserved upon the Demise, but is estopped of the one and the other. And in Hill. 3. Eliz. A man was bound th••t he shall pay to A. or the Obligee, all such summs of mony as T. S. deceased stands bound to pay by his Obligation to the said A. and of one R. P. to the behoof of the Children of such a one, according to the Will of the said party; and in Debt upon this Obligation he saith, that the said T. S. was never bound by any such Writing Obligatory to the said A. and R. P &c. to pay, &c. Pro usu filiorum, &c. as in the Condition; and per Curiam adjudged no good Bar, because he is estopped to deny the speciall matter, which is matter of Writing, and not a bare matter in Deed.

Kirton versus Hoxton, and others.

10. IN an Appeal of Mayhem brought by Kirton Plaintiff, against Rob. Hoxton Esq and divers other Defen. the one of the Defen. plead Nul tiel in rerum natura, as another of the Appellees, and if it be not found then as to the Felony and Mayhem not guilty: Agreed by the whole Court that such a manner of pleading is not to be suffered in an Appeal of Mayhem, because no life is put in danger by the suit: And yet it was objected that there are presidents, that such form of pleading hath been admitted in Appeals of Mayhem. But the Court had respect to it, that the reason in all the Books of Law in which it hath been admitted in an Appeal of death, and the like, is, that it stands in Favorem vitae, and therfore it is admitted to be good, or otherwise by the Books, it shall not be admitted to be so, for the doublenesse of it: But no life is to be put in ••e••pardy in this case, and therfore such a plea shall not be admitted, but the Not guilty shall stand, by which the other plea is waived.

Hillary Term, 38 Eliz. Henry Earl of Pembrook, versus Sir Henry Backley.

IN an Action upon the Case, between Henry Earl of Pembrook Plain∣tiff, and Sir Henry Backley Knight, Defendant, the case upon the plead∣ing appeareth to be thus.

The said Earl was seised in his Demesn as of Fee, of the Mannor of Stock∣trift, in the County of Somerset, to which Mannor the Office of the custo∣dy of the Forest of Selwood, in the same County belongeth, and also that there was before time of memory, an Office within the same Forest called the Lievtenant-ship, or Custody of the said Forest belonging to the said Mannor, of which also the said Earl was seised in his Demesn as of Fee: And that there was one part of the said Forest called the West part of the said Forest, in which there were two Walks, or Bayliwicks, the one called Staverdale walk, and the other Brewick walk: And that the said Lievtenant had the charge of the Deer, and the disposition and appointment of the Keepers of the said Forest. And that the said Earl being so seised, by his Writing, bearing date 5. Novemb. 12. Eliz. reciting that his Father had granted the Office of Liev∣tenant-ship, and Deputy-ship, of the said West part of the said Forest, Cum vadiis, &c. quando acciderit, and the Keeper-ship of Brewick-walk afore∣said, to the said Sir Maurice Barkley Knight, and the Heirs Males of his body, and instituted and ordained him, and the Heirs Males of his body, Liev∣tenant and Deputy therof to the said Earl and his Heirs, confirmed the Grant aforesaid.

And further by the same Deed granted and confirmed to the said Sir Mau∣rice, and to the Heirs Males of his body, the said Lievtenant-ship and Depu∣ty-ship of the said West part of the said Forest, and also the Keeper-ship of the said Walk called Staverdale Walk, together with the Lodges, &c.

Provided alwaies, and the said Sir Maurice covenanted and granted, for him and the Heirs Males of his body, with the said now Earl his Heirs and As∣signs, that it shall be lawfull for the said Earl his Heirs and Assigns, to have all the Preheminence or commandment of the said Game and Hunting, and pleasure there, as if this Grant had not been made.

Provided also, and the said Sir Maurice covenanted, granted, and promi∣sed for him, and the Heirs Males of his body, to, and with the said Earl, his Heirs and Assigns, that the said Sir Maurice and the Heirs Males of his body, and their Assignee, and Assignees, will preserve the Games as fair as it com∣monly hath been used, and that neither the said Maurice, nor any of the Heirs Males of his body, nor any of their Assignees, will cut any manner of Wood growing upon any part of the Premisses, unlesse for necessary Brouse, and such as they may lawfully cut of their own, and as was accustomed, &c. af∣ter which Sir Maurice died, and Sir Henry Barkley his Son and Heir Male, cut four Okes within the said Walk called Brewicks, growing upon the soile of the Queen there, every one of them being Timber, and of the value of 13 s. 4 d. and converted them to his own use. And whether by this act done by the said Sir Henry the now Earl of Pembrook, may re-enter into the things granted by him, was the question, which stands upon two points, the first, Whether the last Proviso makes a Condition, or be but a meer Cove∣nant. 2. Whether this Act makes a Forfeiture of the said Offices granted as be∣fore by the course of the Common Law.

Gaudey, Clench, Walmsley, and Beamont, that the first Proviso is not a

Condition, either because he is not by this to do more then he may do by his superior custody, in which case he ought to do it by his own authority, as to take his fee Deer, or to chase and kill Deer by Warrant, and the like; or otherwise if it shall be taken, that he may by this Proviso kill or chase the Game at his pleasure, it is void, because as to it, he is to do that which he ought not to do by his Office, to wit, to destroy the Game, which by his Of∣fice he is to preserve; and therfore for the first, it stands meerly upon the Covenant.

Then when he saith further in the second clause; Provided also, and the said Sir Henry Barkley covenants, this is to be intended that it shall be as the other for the word also, and this is but a bare Covenant as the first was.

And they said further, that this last Proviso shall be said entirely the words of the Grantee himself, as the Covenant is, and without words of the Grantor a Condition cannot be, for it is for him to condition with the Estate given, and not for him to whom the Grant is made; And therfore suppose that it had been on the other part, to wit, Provided alwaies, and the Gran∣tor covenant that the Grantee shall have the refuse of the brouse, and the like; this shall not be said to be any Condition, but a meer Covenant: In like manner shall it be on the other part.

And further it is common for Scriveners and ignorant persons to make in effect every Covenant to begin with a Proviso in this manner, and ther∣fore to expound such a manner of Proviso as a Condition, it shall be too peri∣lous to the Estates of men.

And for the case upon the Lease made by Serjeant B••••dloes, which was thus.

Provided alwaies, and it was covenanted, granted and agreed between the parties, if the Lessee sell, or alien the term that the Lessor shall have the pre∣ferment, This they agreed to be a good Condition, as was adjudged in the Common Bench, 32 Eliz. but the case there is, because they are the words as well of the Lessor, who may add a Condition to the Estate, as of the Les∣see who made the Covenant, which is not here. But they said, that the case between Hamington and Pepull which was 17 Eliz. in the Kings Bench, was more nigh in resemblance to the case in question, which was that the said Pepull made a Lease for years to Hamington of a Farm, except the wood, and covenanted with the Lessee that he shall take all manner of under-wood; provided alwaies, and the Lessee covenant that he will not cut any manner of Timber-tree, & this was adjudged no Condition. And as to the other point they said, that the cutting of Trees by him who had the custody of the Forest, is not a forfeiture of his Office by the Common Law, as it is of him who hath the custody of a Park, for there is another speciall Officer who hath the charge of wood in a Forest, to wit, the Verderer and the Woodward, and therfore it is no forfeiture of him who hath the custody of the Forest to cut Trees, for he hath another charge, to wit, the custody of the Game on∣ly, and not of the Wood.

And further the cutting of one or two Trees is no cause of forfeiture, for it may be that there is Covert-shade and brouse sufficient of that which yet remains, in which case it is no forfeiture if it be not averred that these things are impaired by it.

But the chief Iustices, chief Baron and all the other Iustices and Barons were of a contrary opinion. And for the matter of forfeiture at Common Law, they said that it was a cause of forfeiture of an Office at common Law to cut the Trees, as well in the case of a Forester, as in case of a Park∣keeper, for the Forester hath not only the charge of the Game, but of all that is within the Forest by which the Game is fed, preserved, or succoured,

and they are fed by the brouse, and succoured by the shade, and have the calmer and better lodging by reason of the Trees; and therfore by their Office they are to have a care of these things as well as of the Game, for without these the Game cannot stand: as to say, that there are others who have speciall charge of the Wood and Pasture, as the Woodward, or Agister, &c. this is no proof that the Foresters, or Keepers are discharged therby.

And the Foresters and Keepers are by their Offices to present the Mis∣doers in the Woods within the Forests of the Wood-wards, and therfore they have to do with it. And by Carta de foresta, none may cut his wood within his Forest, Nisi per visum Forestraii, ergo the Foresters have charge therof: And every voluntary act done by an Officer contrary to that which belongs to his Office is a forfeiture of his Office, as by voluntary killing of Bucks, cutting of Trees, Wood, or the like: but otherwise it is of things done or suffered by his negligence if it be not common or often. And albeit the Trees here were not many, or that it was not averred that the Game was to be hurt therby, yet it cannot be intended but that it is so much im∣paired by it, as it should be by the killing of a Buck in the Forest, by which the Office shall be forfeited, because the Game is therby the worse, and yet there may be Game sufficient without this Buck, but he hath voluntarily done a thing contrary to his Office, and therfore it is a Forfeiture of his Of∣fice, and so it shall be in this case.

And for the other point they said, it was a Condition and also a Covenant, and it was for good purpose to have it to be so: For suppose that the Game had been destroyed by the said Sir Henry, shall this he a sufficient recom∣pence or satisfaction to enter for the Condition broken? No, and therfore the Covenant was made to recompence him for Damages.

And when u••on the Habendum a Proviso is added for a thing to be done by him to whom the Deed is made, or to restrain him to do any thing, this is a Condition, as well as if it had been a Condition which shall make or shall restrain to do such a thing, for they are in this case the words of the Grantor, to restrain the Grant in some manner, and to shew in what manner he shall have it, and it is alwais to him who passeth the Estate, and to no other. Then suppose here, that the Proviso had been; Provided alwaies that the Grantee shall not cut any Tree, And the Grantee covenant also that he will not cut any Tree, this is plainly a Condition and also a Covenant; then it is as plain in the case in question, which is; Provided also, and the Grantee covenant, &c. that he will not cut any manner of Wood: distinguish the sen∣tence by his proper distinction, and it is cleer that it is a Condition as well as a Covenant. And to say, that there is a diversity between this case and the case upon Serjeant Bendloes Lease, because there it is, Provided al∣waies, and it is covenanted and agreed between the parties; In which case it is alledged, that the agreement which is the Plaintiffs, goes to the Proviso to make it a Condition for him, as well as it shall go to the Grantee to make it to be a Covenant from him: they understand no difference, be∣cause the Proviso as it is placed, is of it self as spoken by the Plaintiff; and the agreement between the parties that such a thing shall be done by the Les∣see, makes it a Covenant on his part only, all being to be performed by him, as plainly as in the case in question.

And to say, that the last Proviso shall not be a Condition, because the first cannot enure as a Condition, because that which is to be done may lawfully be done with it, or without it, or because that the matter to which the Proviso is annexed, is repugnant to the nature of the thing granted, yet this is not be∣cause of the nature of the word it self, but by reason of that to which the Pro∣viso is annexed, and therfore the Proviso following hindred in its operation

by meanes of the word, also: And therefore if a man makes a Lease for yeers, provided alwayes that the lessor may enjoy and hold the Mannors of D. (which is other Land) or that the Lessee shall kill I. S. these are void of Conditions; But grant then that it is further provided also that he shall not alien his Terme, is not this a good Condition although that which was Precedent was no Condition? It is cleer that is not; And they said for Hamingtons Case that it was but of the nature of a declaration with what wood the Lessee shall meddle, because it depends upon the Covenant of the Lessor, and it is generall, to wit, that he may cut any manner of under∣wood, provided that he do not cut any manner of Timber; and Popham was of councell with Hamington in this case, and the Court at the begin∣ning insisted much that it was a Condition, and that for the reason then al∣ledged, that it depended upon the Covenant of the Lessor, which was general for all manner of under-wood, because that Standels growing between great Trees, might be taken within the generall words of all manner of under∣wood, for to make it plain it was well put in, that he shall not cut any man∣ner of Timber Trees, and therfore in this point it was but a Declaration, with what wood he should meddle, although in truth it was of another thing then was comprised in the Covenant before: And then the adding of a Co∣venant to such a Proviso shall not make the Proviso of another nature, then it was before the Covenant made, or if no Covenant had been added to it, and upon this reason the Court then gave Iudgment for Hamington. And by him, if I am seised of the Mannor of D. in D. and of Black acre in D. and so seised, I covenant with I. S. that he shall enjoy the said Mannor for ten years: Provided and the said I. C. covenant that he shall not enjoy Black acre, this Covenant is not a Condition, but a Declaration deduced out of my Cove∣nant, to make a plain Declaration, that it is not my intent that Black acre shall passe, be it parcel or not parcel of the said Mannor; Then the Cove∣nant following will not alter the nature of the exposition of the Proviso which the Law shall make of it self, if it had stood of it self without a Cove∣nant following.

And for the Proviso here, he put this case, suppose it had been; Provided, and the Grantee covenants that he shall not cut any Trees: None will deny but that this had been a Condition and a Covenant also: And what diversity is there where the word is at the conclusion, and so couple the Condition and Covenant together. And we are not to alter the Law for the ignorance of Scriveners, who do they know not what by their ignorance, shall be correct∣ed by the Law.

And they agreed, that where a principall Officer is by his Office to make inferior Officers under him, and the inferior Officer commits a forfeiture, the superior Officer shall take advantage therof, and shall place a new Offi∣cer, as was done in 39 H. 6. for the Office of the Marshall of the Kings Bench, put in by the great Marshall of Englang.

Easter Term, 39. Eliz. Overton versus Sydall.

1. IN Debt between Valentine Overton Clark, Prebendary of the Pre∣bend of Tervin in the County of Chester, founded in the Cathedrall Church of Litchfeild in the County of Stafford, against Thomas Sydall Executor of William Sydall, the case appeared to be this.

Henry Sydall Clark, Prebendary of the Prebend, 26 Maij 5. E. 6. with the assent of the Dean and Chapter, and by Writing indented, demised the said Prebend, to the said William Sydall for 43. years from the Feast of the Annunciation of our Lady, in the year of our Lord 555. at the yearly rent of 361. William Sydall assigned over his term, and died, making the said Thomas his Executor, Henry Sydall also died, and afterwards the Plaintiff was made Prebend, and for the rent arrear in his time, and after the assign∣ment this Action is brought against the Executors in the Debet and Detinet.

And it was alledged that in Hillary Term 36 Eliz. Rot. 420. in the case between Glover and Humble, it was adjudged in the Kings Bench, that the Grantee of the Reversion shall not maintain an Action of Debt upon a Lease for years against the Lessee himself, for any arrears of Rent incurred, after that he had made an assignment of his Term over to another, and al∣ledged also that in Hillary, 29 Eliz. in a case between it was ad∣judged, that an Action of Debt lyeth for the Lessor himself against the Lessee, for arrearages of Rent reserved upon the Lease, and accrued after the Lessee had assigned his Term over; and both these cases were adjudged according∣ly in the Kings Bench, and the reason in the first case was, because that by the Grant of the Reversion over, the privity of contract which was between the Lessor and the Lessee is dissolved, and the Grantee of the Reversion as to it but a stranger.

But in the last case the privity of contract is not dissolved between the Les∣sor and the Lessee, notwithstanding the Lessee hath passed over his Term, neither is the contract therby determined between the parties.

But Fennor said, that in this case the privity in Deed is gone by the death of the Lessee, and therfore the Executor who is but privy in Law, is not sub∣ject to this Action, unlesse in case where he hath the Term; in which case he shall be charged as he who hath Quid pro quo, which is not in the case here.

And he said further, that a Lease made by a Prebend is good no longer then his own life, but is meerly void by his death, and therfore shall not be said to be a contract to bind further then his life, and therfore also he said, that the Action will not lye in the said case for the Successor.

But Gawdy said, that here the Lease is confirmed, and therfore good du∣ring the Term, but it seemed to him that the Executor who is but in privy in Law shall not be chargable with this action, for the arrearages due after the assignment over, and yet he agreed that the Heir, the Successor, and the Executor of the Lessor shall have debt against the Lessee himself, for the ar∣rearages which accrues to be due after the assignment over of the Lease:

But he said, that the Action of Debt against the Executor upon a Lease made to the Testator, and for the arrearages due in the time of the Executor, ought to be in the Debet and Detinet, and that for the occupation of the Term, wherby he hath Quid pro quo, which is not in this case.

Popham said, that for the time that the contract shall bind in nature of a Contract, there is not any difference between th•• Heir the Successor, and the Executor of the Lessor, and the Executor or Administrator of the Lessee, for the one and the other are equally privy to the Contract, and a Contract or Covenant especially being by writing, binds as strongly the Executor or Administrator, as the Testator or the I••testate himself who made it, For these are privies indeed to the Contract, and as to it represent the person of the Testator or Intestate himself.

And he agreed, that the Action of Debt against the Executors, for the ar∣rearages of Rent of a Lease which he occupies as Executor, and accrued in their own time, shall be in the Debet and Detinet: The reason is, although they have the Land as Executor, yet nothin•• ther of shall be ••mp••••yed to the Execution of the Will, but such Pr••fits as are above that which w••s to make the Rent, and therfore so much of the Profits as is to make, or answer the Rent, they shall take to their own use to answer the Rent, and therfore they having Quid pro quo, to wit, so much of the Profits for the Rent, the action ought to be brought against them in such cases, where they are to be charged in Debt for Rent upon a Lease made to the Testator, and have not the Profits of the Lease it self, nor means, nor default in them to come to it, the action of Debt ought to be against them in the Detinet only and this is the case here, and therfore the action being in the Debet and Detmet doth not lye.

And further he agreed in this case to the opinion of Fennor, that the acti∣on here doth not lye for the Successor of the Prevend who made the Lease, for no more then the Successor in this case sh••ll be bound by the Contract of his Predecessor, no more shall he take advantage by this Contract, for it is the consideration which makes him to be bound, and not only the C••ntract, and so the Successor in such cases is but privy in Law, and not in D••ed t•• the Contract of his Predecessor. But otherwise it is ••f the Successor of a Bi∣shop and the like, which Leases are not void against the Successor, but voidable.

Case of Armes.

2. VPon an assembly of all the Iustices and Barons at Sergeants-Inne, this Term, on Munday the 15. day of April, upon this question m••ved by Anderson chief Iustice of the Common Bench: Whether men may arme themselves to suppresse Riots, Rebellions, or to resist Enemies, and to endeavour themselves to suppresse or resist such Disturbers of the Peace, or quiet of the Realm; and upon good deliberation, it was resolved by them all, that every Iustice of Peace, Sheriff, and other Minister, or other Subject of the King, where such accident happen may do it: And to forti∣fie this their resolution, they perused the Statute of 2 E 3. cap. 3. which e∣nacts that none be so hardy as to come with force, or bring forc•• to any place in affray of the Peace, nor to go or ride armed, night nor day, unlesse h•• be

Servant to the King in his presence, and the Ministers of the King in the execution of his Precepts, or of their Office, and these who are in their com∣pany assisting them, or upon cry made for Weapons to keep the Peace, and this in such places where accident▪ happen upon the penalty in the same Statute contained; wherby it appeareth, that upon cry made for Weapons to keep the Peace, every man where such accidents happen for breaking the Peace, may by the Law arme himself against such evill Doers to keep the Peace.

But they take it to be the more discreet way for every one in such a case to attend and be assistant to the Iustices, Sheriffs, or other Ministers of the King in the doing of it.

3. AT the same time it was also resolved by them all (except Walmsley, Fennor, and Owen) in the Case of one Richard Bradshaw and Ro∣bert Burton, who with others lately by word entred themselves into an a∣greement one with another to rise and put themselves into Armes, and so to go from one Gentlemans house to another, and so from house to house to pull down Inclosures generally; that this so appearing by their own con∣fession, or by two Witnesses according to the Statute, is high Treason by the Statute of 13 Eliz. cap. 1. The words of which Statute are, That if a∣ny intend to levy War against the Queen, and this maliciously, advisedly, and expresly declare or utter by any words or sayings, that this shall be high Treason: For all agreed that Rebellion of Subjects against the Queen hath been alwaies high Treason at the Common Law, for the Statute of 25 E. 3. cap. 1. is, that levying of War within the Realm against the King is Treason, and Rebellion is all the War which a Subject can make against the King.

But Walmsley and the others with him said, that the Statute of 1 Mar: cap. 12. 10. That if any to the number of twelve, or more, assemble them∣selves to the intent to pull down Inclosures, Pales, and the like with force, and continuing together after proclamation, according to the Sta∣tute, to go away by the space of an hour, or do any of the Offences mention∣ed in the Statute, that this is Felony: So that if these Actions had been Treason at the Common Law, it had been to no purpose to have made it Felony.

And it seemed to them that the resistance ought to be with force to the Queen, before that such Acts shall be said Treason.

But all the other Iustices agreed (and so it was put in ure lately in the case of the Prentices of London) that if any assemble themselves with force to alter the Laws, or to set a price upon Victualls, or to lay violent hands upon the Magistrate, as upon the Major of London, and the like, and with force attempt to put it in action, that this is Rebellion and Treason at Common Law, and yet this Statute of 1 Mariae, makes it in such a case but Felony.

And they put a diversity between the cases of pulling down Inclosures, Pales, &c. comprised in the Statute of 1 Mar. for those are to be understood where diverse to the number of twelve, or more, pretending, any or all of them to be injured in particular, as by reason of their common, or other Interest in the Land inclosed, and the like, and assembling to pull it down forcibly, and not to the cases where they have a generall dislike to all manner of In∣closures, and therfore the assembling in a forcible manner, and with Armes to pull them down where they have any Interest, wherby they were in any

particular to be annoyed or grieved, is not Treason; but the case here ten∣ding to a generality, makes the act if it had been executed to be high Treason by the c••u••se of the Common Law.

And therfore the intention appearing as the case is here, it is Treason by the St••tute of 13. aforesaid.

Periam in some manner doubted of the principall case, but to intend to rise with force to alter the Laws, to set price upon any Victuals, or to use force against a Magistrate for executing his Office of Iustice, and the like, he said that they were cleerly Treason by the Statute of 13. aforesaid, if it may appear by expresse words, or otherwise, as the said Statute mentions, for all these tend against the Queen, her Crown and Dignity, and therfore shall be as against the Queen her self: And if it had been put in practice it had been Treason at the Common Law.

Here ends the LORD POPHAM'S REPORTS.

Notes

• In the Court of Wards.
• Vide this case Cook lib. 1. 61. by the name of Cape••s case.
• Vide this case in Cook lib. 8. 130 Thet∣ford Scholies case.
• Vide this case reported in Coke, lib. 7. 12, 13.
• Vide this case reported, Cook lib. 4. 16. b:
• Property.
• Vide this case Coke lib. 1. 146, &c.
• Vide this Case Coke lib. 5. 1. pa.
• Vide this case in Cook lib. 2 32, 33. by the name of Do∣ding••ons case.
• Gilbert Earle of Shrewsbury, against Sir Thomas Stan∣hop in a Scan∣dalum Magna∣tum.
• See this in Cook lib. 1. 120. b•• the name of Chud∣leighs case.
• Use, what it is.
• Burglary.
• In which case Shops in Lon∣don are Mar∣kets Overt, & what not.
• See this case in Coke 3. Re∣port fol 71. 6.
• Prisoners in execution to be delivered over to the new Sheriff by Indenture, and all the executions to be therin mo∣ved
• See this case in Cookes 3. Report, fo•• 25
• See this case in Coke ••. Re∣port 35.
• Where a Ju∣st••ce of Peace bails one who is not bailable, he shall be si∣ned, and albeit he be commit∣ted but for suf∣fici•••••• of Felo∣ny, and ha••h no notice of his of∣fence.
• See this Case Coke lib. 5. 21. by the name of Laughters case.
• See this Case Coke lib. 5. fol. 95, 96. by the name of Good∣ales case.
• In which case a Condition shall be per∣formed to an Assignee, and not to the Heir.
• Appeal of Mayhem.
• See this Case Coke lib 5. 76. a.
• When a Pro∣viso makes a Condition.
• Rebellion of Subjects high Treason.